Rumors are flying after a District Court judge in Utah struck down much of Utah’s anti-polygamy law on December 13, finding key parts of it to be unconstitutional; however, despite what some conservatives are saying, it has more to do with religious liberty than having any relation to marriage equality, and technically legalizes nothing.
Unlike same-sex marriage, plural marriage is actually illegal in the sense of being a punishable offense in many countries. In the US, bigamy—the practice of having more than one spouse—is a misdemeanor. Polygamy, the practice of one man having multiple wives, is a felony. In Utah, the law actually went further and banned “cohabitation,” meaning any situation in which a person already married “purports to marry another person or cohabits with another person.”
The suit against the state filed by Kody Brown and wives Meri, Janelle, Christine, and Robyn, who are all featured in the TLC documentary “Sister Wives,” argued that the law constituted an infringement of their fundamentalist Mormon faith as well as their privacy. Kody Brown is legally married only to his first wife, Meri, but the fact that he lives with multiple women that he considers his wives was enough to have them investigated for polygamy and bigamy in 2010; if convicted of the third-degree felony, Kody Brown could have been sentenced to twenty years in prison, and each of the women could have served up to five years. All charges were dropped in 2012.
LGBT equality was in fact referenced in the Browns’ suit; in his written decision, District Court Judge Clark Waddoups cited “key language” in “Lawrence v. Texas,” noting that “the Texas statute ‘furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,’” and cited Lawrence’s establishment of “a fundamental liberty interest in intimate sexual conduct.” Thus, he concluded, Utah cannot be said to have a legitimate interest in criminalizing “the private consensual relations of adults.”
However, just as “Lawrence v. Texas” did not have any direct impact on marriage equality laws, Waddoup’s decision doesn’t mean plural marriages are in any way legal; it simply decriminalizes them. Rightly or wrongly, the practice of polygamy makes most Americans think of child marriages, and even when brides entering into plural marriages are of legal age, the consent of those in (for example) fundamentalist Mormon groups is debatable due to the pressure they face; the site Child Brides has many stories of members, male and female, of almost every age being exiled for even minor infractions. The legalization of plural marriages could also potentially make things harder for women who want to leave fundamentalist households, if being taken as only the latest in a group of wives was in fact legally binding.
Waddoups’ judgment specifically states, “This court shares serious concerns about the potential for injury and harm in closed religious polygamist communities, but notes that each such crime can and should be prosecuted on its own independent basis under the Utah statutes specifically designated for those purposes, including ‘criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse.’ […] Defendant referred to various reports documenting such abuses in Utah’s religious polygamist communities. ‘But based on stories like these, Utah has made a legislative policy determination that the practice of polygamy is harmful to society and therefore should be prohibited.’ […] This cannot be a rational basis for the cohabitation prong of the Statute, however, because the State has specifically formulated a general policy not to prosecute religiously motivated polygamy, though when it has proceeded anyway, it has invariably been against religiously cohabiting individuals, usually in cases in which the defendant has been convicted of the ‘collateral crime’ at issue anyway. Again, the court finds that there can be no rational basis for this approach, particularly under Lawrence and its focus on the deeper liberty interests at issue in the home and personal relationships.”
Thus, although a previous court case decided in favor of LGBT rights was cited in the court ruling, this case will likely have minimal to no impact on the LGBT community; like in “Lawrence,” it was simply concluded that the government cannot criminalize what happens in the bedrooms of consenting adults.
Still, the fact that the LGBT community and practitioners of plural marriage have some things in common hasn’t escaped even some of the religious groups that endorse it; in an interview with HuffPost Live, the Browns were asked, among other topics, their thoughts on marriage equality. The newest of the “sister wives,” Robyn, summed up their thoughts on the matter most succinctly: “All adults should be able to choose who they want to love and how they structure their family.”