The Times has a piece about Kody Brown, a “proud polygamist” with 4 wives who wants to challenge a Utah law prohibiting polygamy.
The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.
Mr. Brown has a civil marriage with only one of his wives; the rest are “sister wives,” not formally wedded. The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.
Making polygamous unions illegal, they argue, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise, establishment, free speech and freedom of association clauses of the First Amendment.
“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University.
The connection with Lawrence v. Texas, a case that broadened legal rights for gay people, is sensitive for those who have sought the right of same-sex marriage. Opponents of such unions often refer to polygamy as one of the all-but-inevitable outcomes of allowing same-sex marriage. In his dissenting opinion in the Lawrence case, Justice Antonin Scalia cited a threat to state laws “based on moral choices” against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
I’m not quite sure what the Utah law in question punishes. Merely having a single legal wife,and other sister-wives (or girlfriends). I mean, isn’t this Hugh Hefner’s deal? Will we see an amicus from Playboy?
I thought we may get another Lawrence challenged with that incestuous Columbia Law Prof, but he pleaded guilty.
Update: Mike Sacks provided me with a bit more info on this.
Article 3 of the Utah Constitution specifically prohibits polygamous or plural marriages:
Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
According to this page from the Utah ACLU (must be real popular in Utah!), Utah’s bigamy statute is currently more precise:
“A person is guilty of bigamy when, knowing he has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2003). The law, therefore, applies not just to individuals who have obtained multiple marriage licenses, but also to those who are legally married to only one person, while also engaging in other marriage-like relationships that are not recognized by the state.
So I guess Hef would still be safe with his harem, as long as he doesn’t marry one of them.
The ACLU notes that 3 Utah Supreme Court cases since 2004 have upheld this statute. It seems that Brody is challenging this statute. SCOUTS declined review on this in 2007.