A federal appeals court Monday struck down a judge’s ruling that decriminalized polygamy in Utah, saying the lawsuit brought by members of the “Sister Wives” reality TV family was moot because they faced no credible threat of prosecution.
The decision reinstates third-degree-felony penalties for the cohabitation prong of Utah’s bigamy law, which had been deemed unconstitutional by a federal judge.
Kody Brown and his four wives — Meri, Janelle, Christine and Robyn — sued Utah and the Utah County attorney’s office in Salt Lake City’s U.S. District Court in 2011, alleging the state’s bigamy law violated their constitutional right to privacy by prohibiting them from living together and criminalizing their sexual relationships.
This is from last year. Check out the cases the attorney cited as rationale, so to speak, against the criminalisation of polygamy presumably:
‘Sister Wives’ point to same-sex marriage in fighting Utah’s polygamy appeal
In a response filed with the 10th U.S. Circuit Court in Denver, Kody Brown and his wives, Meri, Janelle, Christine and Robyn ask the judges to reject the state’s appeal. They cite cases involving same-sex marriage (United States v. Windsor and Obergefell v. Hodges) and a case that struck down the ban on gay sex (Lawrence v. Texas).
“From the rejection of morality legislation in Lawrence to the expansion of the protections of liberty interests in Obergefell, it is clear that states can no longer use criminal codes to coerce or punish those who choose to live in consensual but unpopular unions. This case is about criminalization of consensual relations and there are 21st century cases rather than 19th century cases that control,” Brown family attorney Jonathan Turley wrote.
One thing I’ve never understood with regard to these folks, is how they get themselves in trouble in the first place. Yes they’re “spiritually married” to more than one person, but they’re not legally married to more than one. He’s legally only got one wife. So legally how is what he’s doing any different than a legally married person who is separated from their spouse and living with another partner? Or a married couple who are in one of those so called “open” relationships? Both of which are legal?
I mean I understand why Brown is pursuing it from his side trying to make it so he can legally marry all 4 women. But he’s also being investigated for prosecution for polygamy from the government’s side, despite the fact I can’t see what grounds they would have to do so since he’s not entered into more than one legal marriage.
Only one marriage can be legal the way the law is now. I’m not familiar with the Utah law regarding polygamy, but it sure appears this judge said there is no actual legal controversy yet. But it will eventually happen, if not in Utah, somewhere. And I don’t see how the federal courts can possibly weasel out of legalizing polygamy. If a man can marry another man, there is no good reason why he can’t marry two or more women.
In Utah, the bigamy law does not just include legal marriage. The law also makes cohabitation illegal. If you are married and the have a few “friends” come live with you, you can be charged with bigamy. If I remember correctly paternity is often used to establish that they are more than just roommates.
At this point I really see no legal reasons to not accept polyamourous marriage. We already have family law that deals with blended families of all shades. We already have ways to deal with kids that have mommy, daddy, stepmommy, stepdaddy, et cetera. so really this is just the next logical extention of “families/marriage comes in all shapes and sizes”. If marriage is nothing but a legal construct then there is no compelling legal reason to limit it to two people.
I still think it’s abhorrent, but I think no fault divorce is too. Unfortunately I seem to be a dying breed.
Marriage, even SSM is still a union of two people into a monogamous and committed relationship. SSM didn’t change that key aspect of marriage. Polygamy is not by definition a monogamous relationship which may be all the opening the courts need to continue to deny Polygamy.
We shall see of course, but I have a feeling they’ll be able to hold the line against Polygamy both because of that fact, and the fact it’s still not a widely accepted or supported practice among liberals or conservatives in the US.
Except for the fact that marriage in the US has not been about a “committed relationship” for decades. It is not about “til death do us part” but rather “until I’m not interested in you”. Heck given the fact that adultery is not illegal we can’t even say it’s strictly about monogamy either. So if marriage is just a legal proof of sexual commitment then why limit it to an arbitrary two people. In the past it made sense for inheritance, but given that children are not an integral concept of marriage anymore then the inheritance angle no longer matters.
Also doesn’t look like what was struck down, and now upheld on appeal really legalizes Polygamy. Rather it decriminalized co-habitation with a third partner if you were legally married. This practice is illegal in several states which I was unaware of (Those states being Nebraska, Wyoming, Arkansas, Mississippi, Alabama, Florida, North Carolina, Virginia, West Virginia and Massachusetts and presumably Utah until this court case started futzing with that particular aspect of the law). What Brown is trying to do is make Utah law conform with the other 39 states which allow a married couple to co-habitat with a third party adult (or in this case, fourth, fifth party as well.)
Apparently what was struck down and now upheld is a much narrower aspect of overall polygamy law that is by no means universal across the US, and is in fact a minority law on the books in only 11 states.
Marriage, by the courts reasoning, is a social construct. To not violate civil rights with this social construct it must be allowed to encompass all the constructions anyone invents. There is no way monogamy can be considered a requirement for legal marriage since that would impede sexual freedom, which by the courts reasoning is the highest freedom we have. Lawrence vs Texas said that states can’t prohibit sexual activity.
Unpopularity is no reason to restrict sexual freedom, again by the courts logic. The court made sure to point out the legislature could not prohibit same sex ‘marriage’ based solely on a dislike of the notion. If polygamy is not given court approval then the courts are hypocritical. And polygamy actually is much more natural then same sex ‘marriage’.
I think for both questions the answer is that because societally we still deem that the requirement of monogamy matters. Will that always be the case, I can’t say, I’m not clairvoyant. So far however society seems to chug along happy with ideal, fictional or not, that married couples are monogamous and committed to each other “til death do us part.” Recently that’s been extended to SS partners in similarly committed relationships at the time of legal union.
Does that mean society won’t some day deem polygamy as something it supports. Of course not, there’s no guarantee of that. But extending the institution to SS couples doesn’t necessarily prelude that society will allow polygamy some day either.
I mean, I’m in California and I’m an Episcopalian, I’m surrounded by people the average CA poster would clearly consider “liberal”. Most of those I know (Catholic, Protestant, Atheist, Agnostic, Deist, Theist and everything else) are SSM supporters, gay rights supporters, etc… some of them very ardently so. But even among them I don’t typically see support of the idea of even polyamory, never mind more formal polygamy. :shrug:
Not at all. It has always been a social construct in the US true, but between 2 people. The reasoning that you can’t deny that social construct to two consenting adults regardless of sex doesn’t preclude denying those rights to more than 2 consenting adults. Reason being marriage has never been extended to more than 2 consenting adults in the history of US law or jurisprudence. The idea behind SSM being granted legally was that you’re denying equal protection to 2 SS individuals that 2 Hetero individuals were granted. With Polygamous individuals, they’re not being denied access to that contract, they’re trying to change the contract to expand it beyond 2 people which is arguably an entirely different issue legally.
Legally speaking? Marriage exists to establish legal rights and obligations between the two contracting spouses, as well as between the two spouses and any offspring or family they have. And to be a social and ritual recognition of the interpersonal union between two spouses.
An interesting possibility, and one that can be tied to pushing for tax reform, as well: Imagine the entire country claiming to be the dependent spouses of high-ranking federal officials who failed to claim them on their returns.
Well one thing that is odd is that this law that was struck down, and now reaffirmed, actually isn’t strictly speaking dealing with Polygamy. Rather it deals with co-habitation by a married couple with another party. It’s not the main part of the law regarding a ban on polygamy or bigamy.