13 December 2013

Sister Wives Family Wins Case Decriminalizing De Facto Polygamy In Utah

Today, the family at the center of the reality TV show, "Sister Wives" has won a federal trial court case partially invalidating the criminal bigamy statute in Utah on a motion for summary judgment (the link is to the 91 page court order) in a lawsuit filed in July 2011 (the case was resolved on the pleadings and a motion for summary judgment filed in lieu of an answer, never even reaching the usual "discovery" phase of the case).

The Utah law states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

Utah's bigamy statute prohibits not only being in two legal marriages at the same time, but also cohabitation of a married man with, for example, another woman.  The federal court judge held that the cohabitation clause of the statue of unconstitutional on its face, and that the meaning of "marry" and "purport to marry" should be limited to legal licensed marriages rather than more broadly to religious marriages that do not purport to have civil legal effect.

The introduction to the ruling summarizes the holding:
[T]he court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. . . . after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute.
The conclusion of the opinion continues on to explain:
[T]o save the Statute, the court adopts the interpretation of  “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent constitutional requirement that polygamy, as defined in the 1892 Act, be criminalized, such a conclusion would have no bearing on the constitutionality of the “cohabits” prong of the current criminal bigamy statute. Holm, 2006 UT at ¶ 153 n.13, 137 P.3d at 766 (Durham, C.J., dissenting in part) or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.
The suit was nominally filed against Utah County Attorney Jeffrey R. Buhman (the "Defendant") who represented the state's interests in the case, albeit, lackadaisically.  The judge commented on the dismal quality of the state's defense of the motion for summary judgment in the case and its failure to support its few factual disputes with any admissible evidence, although a quick read left it unclear whether this was because the state's lawyers didn't believe in the cause, or were simply absurdly incompetent and didn't take the case seriously when they should have done so (citations omitted below):
The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” Finally, outside of the briefing schedule ordered by the  court, Defendant filed a Reply in which he, for the first time, provided academic  discussion about “social harms” arising from religious cohabitation in Utah, though no  admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013. . . . Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims. 
The Salt Lake Tribune's story features a pretty portrait of the famous family (full disclosure, I've read their book, but I have not watched the TV reality show although my wife and daughter have both seen it) and recaps some of the drama of the litigation:
At the time [that the lawsuit was filed], Utah Attorney General Mark Shurtleff [who was later dismissed from the case as an improper defendant] responded that the bigamy law is different because it involves entire families, not just consenting adults.
The lawsuit also came at a time when the Brown family faced possible prosecution from Utah County. However, nearly a year after the Brown’s filed their lawsuit, Utah County District Attorney Jeff Buhman announced that his office wouldn’t file bigamy charges against any consenting adult polygamists unless violence, abuse or fraud was involved. [The Browns later moved to Nevada, in part motivated by fear of prosecution, anyway.]
During [oral] arguments in January . . ., both sides engaged in a conversational and sometimes heated exchange with Wadduops. For much of the hearing, Wadduops zeroed in on the definition of a polygamous relationship. Posing a hypothetical question, he asked what the difference was between a polygamous relationship and an unmarried man who chooses to have intimate relationships with three women.
After a series of increasingly heated exchanges, Assistant Utah Attorney General Jerrold Jensen replied that a polygamous relationship is different because it was defined by people representing themselves as married.
"I think it’s the representation that they make to the world," Jensen said.
Waddoups also drilled Turley. During that conversation, Turley argued that Utah has a unique bigamy statute because it makes it illegal for married people to cohabitate with adults who aren’t their legal spouse.
"Other states focus on multiple marriage licenses," he said.
One can imagine the state making a motion to reconsider the ruling so that they can present a more competent briefing.  But, if the state cannot clean up the record in the trial court, on appeal to the 10th Circuit in Denver, if the state appeals, the state may be hard pressed to prevail without any favorable facts in the record, and in the face of being barred from asserting arguments not first made to the trial court.

Not that I envy an attorney trying to defend the case.  It is been somewhat astonishing how long Utah's very broad statute has survived in the face of similar challenges in the past (most recently in the face of a divided Utah Supreme Court in 2006 in the Holm case) and the law has evolved greatly in recent years as a result of gay rights litigation.  But, the Assistant Attorney General representing the Defendant in the case did more to hurt his case than to help it in oral arguments in the case, establishing in some cases a religious basis of discriminatory selective enforcement that might have been hard to establish otherwise.

Importantly, the ruling does not require the state of Utah to legally recognize polygamous marriages.  It doesn't even require anyone to refrain from discriminating against people who are in de facto polygamous households.  Instead, it merely prohibits the state of Utah from criminally prosecuting people for being part of this kind of household simply because it is polygamous and not because of other abuses that are present in the family.  The holding follows fairly naturally from other precedents holding that sex between consenting adults may not generally be criminalized such as Lawrence.

The Court's analysis is thoughtful, historically well informed, thorough and well worth the read.  Particularly notable is the Court's discussion of how a policy of selective enforcement of the bigamy statute actually has the practical effect of placing a barrier in the way of prosecuting families where there are other stand alone violations of criminal laws, undermining the argument that the cohabitation clause validly serves the purpose of protecting family members of these families from exploitation.

Incidentally, Judge Clark Wadduops was appointed by Republican George W. Bush with the support of Utah's two conservative Republican U.S. Senators and was confirmed on September 26, 2008, a little more than a month before President Obama was elected.  He earned his undergraduate degree at Brigham Young University had a legal career concluding as a partner in a firm where he was commercial litigator and as a registered lobbyist.  He is hardly a man that central casting would pick to be the man to decriminalize polygamy in Utah.

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