Scrutinizing Polygamy: Utah's Brown V. Buhman and British Columbia's Reference Re: Section 293

By Strassberg, Maura I. | Emory Law Journal, July 1, 2015 | Go to article overview

Scrutinizing Polygamy: Utah's Brown V. Buhman and British Columbia's Reference Re: Section 293


Strassberg, Maura I., Emory Law Journal


INTRODUCTION

The constitutionality of criminalizing1 polygamy was once an easy decision for the courts. In 1879, the United States Supreme Court confined its substantive discussion of polygamy to two paragraphs in Reynolds v. United States,2 and the Court has never seriously reconsidered the conclusions it reached.3 However, modern readers of Reynolds find the Court's conclusory and vague claims about the negative effects of polygamy on social order and political organization4 unconvincing and tainted by the Court's disparaging association of polygamy with "Asiatic and . . . African people."5 As same-sex relationships have become decriminalized6 and legally recognized,7 many have also found it difficult to understand why and how polygamy could continue to be criminalized. With the ground appearing to shift under what had previously been unquestioned rejection of polygamy, two recent major court decisions have tackled the issue head-on and have come out on opposite sides of the question.

In Canada, the British Columbia Supreme Court, addressing a constitutional reference to the court by the government of British Columbia, upheld the continued criminalization of polygamy under the Canadian Charter of Rights and Freedoms (Charter).8 The trial in Reference re: Section 293 of the Criminal Code of Canada (Reference), under Canadian law,9 was able to be brought in the absence of a "case or controversy."10 It involved forty-two days of hearings,11 ninety affidavits and expert reports,12 and "Brandeis Brief materials . . . . compris[ing] several hundred legal and social science articles, books and DVDs."13 Under Canadian law, limits on a right protected by the Charter must be justified by a purpose that is "pressing and substantial."14 As such, a large part of the decision in Reference was concerned with identifying the harms of polygamy and determining whether they were pressing and substantial.15 In 2011, the court issued a comprehensive 228-page opinion setting out the psychological, sociological, and political impacts of polygamy, finding that this was an objective that was pressing and substantial16 and concluding that the law was consistent with the Charter, despite the way in which it infringed upon liberty and freedom of religion.17

In the United States, in a case brought by the reality TV stars of Sister Wives, Kody Brown and his four wives (Meri, Janelle, Christine, and Robyn) and litigated by Professor Jonathan Turley of George Washington University Law School, the United States District Court for the District of Utah found Utah's criminalization of polygamy unconstitutional.18 Brown v. Buhman was decided on summary judgment based on twenty-two undisputed facts19 with the State failing to submit any admissible evidence on the social harms of polygamy and largely failing to substantively oppose the constitutional claims.20 In its long and complex 2013 opinion in Brown, the Utah federal court held that parts of Utah's criminal bigamy statute21 failed to pass either strict, heightened, or rational basis scrutiny.22 The court upheld the statute insofar as it prohibited multiple legal marriages but struck down the statute's application to a practice of polygamy that involved multiple religious marriages for which legal recognition was not sought.23

Although the focus of this Article is not on the comparative advantages or disadvantages of a constitutional reference versus a case or controversy approach, it is notable that the presence of an adversarial "case" in Brown failed to produce the expected full exploration of the issues; it was not equally litigated on both sides. In contrast, the law in Reference was both strongly defended and attacked: the Attorneys General of British Columbia and Canada took the position that the polygamy law was constitutional, an 'Amicus' appointed by the court opposed the law,24 and eleven groups were granted Interested Person status,25 four of whom opposed the law and seven of whom supported it. …

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