Polygamist, Under Scrutiny in Utah, Plans Suit to Challenge Law

NY Times:

Polygamist, Under Scrutiny in Utah, Plans Suit to Challenge Law

Kody Brown is a proud polygamist, and a relatively famous one. Now Mr. Brown, his four wives and 16 children and stepchildren are going to court to keep from being punished for it. The family is the focus of a reality TV show, “Sister Wives,” that first appeared in 2010. Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.
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.


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.”
The head of the Roman Catholic Church in New York, Archbishop Timothy M. Dolan, made a similar comparison on his blog on Thursday in an essay criticizing the state’s legalization of same-sex marriage and the possible “next step,” which could be “another redefinition to justify multiple partners and infidelity.”

and it begins, wonder what will be next…

As a legal matter, I think the Browns are correct, and I’m surprised it’s taken these many years since Lawrence for a case like this to surface.

I think the state might be able to fashion some restrictions based on the well-being of children, but that too would be pretty flimsy and difficult to enforce.

I don’t know how that would stand up. Any case they make could be used against gay parents and gay adoption or against single mothers.

I hadn’t thought about that. My thought is that the state must prove a compelling interest in protecting the welfare of children, and they will have a difficult time showing that the living situation is any different from a divorced mother staying in the same household with her children, her ex-husband, his wife, and that couple’s kids. Or a single woman renting a room in another family’s house, who then becomes pregnant by the father of that family. These may not be exceedingly common, but I’m not aware of the state making any effort to end these situations unless there are other problems.

So the only distinctions are whether these adults are still sleeping together, and what the kids are told. The first issue seems to be excluded by Lawrence. The second may be somewhat protected by freedom of religion, and following some basic instruction by religious leaders and their lawyers could probably weasel them out of any such rules the government may come up with.

Even that argument would fail miserably. Does the state regulate who unmarried mothers (even some married mothers) sleep with or remove their children because the mother has a somewhat regular boyfriend spending the night?

That was my point - the matter of who adults sleep with seems to be protected from regulation by Lawrence.


Yes, I support Mr. Brown. :smiley:

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