Magazine article The Christian Century

Laws against Polygamy Flawed, Rules Federal Judge

Magazine article The Christian Century

Laws against Polygamy Flawed, Rules Federal Judge

Article excerpt

A judge has struck down parts of Utah's laws criminalizing polygamy as unconstitutional in a case involving the Brown family, featured on the television reality series Sister Wives.

U.S. District Court judge Clark Waddoups's ruling attacks sections of Utah's law making cohabitation illegal, writing in his decision that the phrase "or cohabits with another person" is a violation of both the First and Fourteenth Amendments.

Waddoups said that while there is no "fundamental right" to practice polygamy, the issue really comes down to "religious cohabitation."

The judge's ruling does not say that Utah must recognize multiple marriages, said Brad Greenberg, a research scholar at Columbia Law School. The Supreme Court has repeatedly indicated that determining who can marry is almost exclusively the province of the states, he said.

"A ban on polygamous marriage does little to deter those who want to enter into multiple marriages, some illegally, and then live together," Greenberg said. "So Utah's criminal ban on cohabitation sought to address these practices with a broader ban."

That is what Judge Waddoups ruled unconstitutional, judging that it criminalizes conduct outside Utah's ability to define marriage and in doing so encroaches on First Amendment protections.

The Brown family filed a lawsuit in July 2011, saying that Utah's law violated their right to privacy, relying on the 2003 U.S. Supreme Court decision that struck down the Texas law banning sodomy.

Social conservatives who have argued for marriage solely between one man and one woman have long warned that allowing gay marriage would ultimately lead to allowing polygamy--an argument that's rejected by gay marriage proponents. Groups advocating for legalizing gay marriage say that legalizing polygamy is not part of their mandate.

Proponents of traditional marriage did a victory lap of sorts, saying their worst fears are starting to come true.

"Same-sex marriage advocates have told us that people ought to be able to 'marry who they love' but have also always downplayed the idea that this would lead to legalized polygamy, a practice that very often victimizes women and children," said Tony Perkins, president of Family Research Council. "But if love and mutual consent become the definition of what the boundaries of marriage are, can we as a society any longer even define marriage coherently? …

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