July 13, 2011
Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional
Standing seems easily established. Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired.
The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage. Indeed, Corey Brown, the sole male, is legally married to only one of the women. This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly:
(1) 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.
Section 2 of the statute provides that bigamy is a felony of the third degree.
The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.
Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause. For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along."
Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation.
One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002). Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.
Gordon discusses the history behind the case of Reynolds v. United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated. But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."
On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.
As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.
July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink
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Interesting. Well, Scalia can't blame same-sex marriage; Utah doesn't recognize it either.
Posted by: DARREN HUTCHINSON | Jul 14, 2011 9:55:30 AM
Aren't polygamy laws facially unconstitutional??? This case seems to me to be rather simple to resolve.
Posted by: Divorce Attorney Oklahoma City | Jul 18, 2011 7:41:31 PM