Once upon a time, family law was a marginal legal topic that didn’t make many headlines the way constitutional law or criminal law so often do. But gay marriage and Prop 8 have propelled family law and marriage to the legal center stage. In an odd parallel development, “the family” has, over the last few years, moved to the center of LDS doctrine and practice as well, with “The Family: A Proclamation to the World” being the most visible evidence of that change. We are living in an intersecting perfect storm of changing family law, family doctrine, and family practice. So we should learn some family law before the cyclone hits. Let’s start with a current case.
While gay marriage has garnered headlines, polygamy or plural marriage is waiting in the wings. Every few years a polygamy case works its way through Utah courts and then quietly goes away. The latest case might not go so quietly: Brown v. Herbert, filed July 13, 2011 in federal court in Utah. Defendants filed a 12b1 motion to dismiss for lack of standing. On February 3, 2012 the court issued a Memorandum Decision and Order granting the motion as to two of the defendants (the Governor and Attorney General of Utah, both in their official capacities) but denying the motion as to the County Attorney of Utah County. So the case will go forward and Plaintiffs (the Brown family featured in the TV series Sister Wives) will have a chance to present their case in federal court.
And what is their argument? “Plaintiffs have filed this case to challenge Utah Code Ann. § 76-7-101 … as unconstitutional and enjoining its enforcement.” (Memorandum Decision, page 1.) Here is the text of Utah Code § 76-7-101, the anti-bigamy statute, included in the Utah Criminal Code under the suggestive classification “Offenses Against the Family”:
(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.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
Notice the wording “purports to marry another person.” Under common law (and most modern criminal law derives from common law) the first marriage was valid but a purported second marriage was void. Technically, there was no second marriage, which raised tricky issues for prosecuting bigamy (Second marriage? What second marriage?). Modernly, licensing statutes accomplish a similar result. Utah Code § 30-1-7: “No marriage may be solemnized in this state without a license issued by the county clerk of any county of this state.” And you can’t get a license for a concurrent second marriage, hence any attempted second marriage will not be recognized by the state, either because no marriage license was granted or because one was obtained fraudulently. Thus the second clause in the first paragraph of § 76-7-101, “… or cohabits with another person.” That simplifies prosecution but, this being the year 2012, cohabitation as a basis for criminal liability may be problematic. Can the government still hold consenting adults (in any number and in any configuration of sexes or genders) criminally liable simply for living together? If it isn’t a crime for a guy to live with his girlfriend, is it a crime for a guy to live with two girlfriends? Or with a wife and two girlfriends? Will a court in 2012 be willing to make that distinction, or will it throw out the Utah statute as uncontitutional?
However, ruling the statute unconstitutional raises other constitutional issues. Here is Article 3, Section 1 of the Utah Constitution:
Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
So the constitutionality of the statute raises the issue of the constitutionality of this clause in the Utah State Constitution. Furthermore, it was Congress that required that clause to be included in the Utah Constitution when it approved statehood for Utah in the Utah Enabling Act of 1894. Here is the langauge from the Act directing provisions to be included in the constitution to be drafted for the future State of Utah:
The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not to be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said Convention shall provide, by ordinance irrevocable without the consent of the United States and the people of said State
First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited.
So it is not simply a matter of Utah amending its state constitution to conform with a possible opinion by the federal district court (as possibly affirmed by the Tenth Circuit Court of Appeals and the United States Supreme Court). Utah may be prohibited from amending its constitution without the permission of Congress.
Which brings us to the final section of the Memorandum Decision, in which the court states that “notice will be given to the United States to determine if it wishes to intervene” in the case. That section also references an October 28, 2011 Order to Show Cause why “the United States should not be joined as a required party due to its interest in Utah’s prohibition of polygamous or plural marriages as a condition for granting statehood, as stated in the Utah Enabling Act of 1894.” (Memorandum Decision, page 20.)
I don’t know that the United States can really dodge this issue, but either position raises difficult questions. Would the United States defend the statute and the Utah Constitution, arguing that mere cohabitation in certain arrangements, but not others, is still criminally liable? Or would the United States decline to defend the statute, opening the door not only to officially tolerated plural cohabitation (which may be the de facto case already, except in Utah County) but also to legal plural marriage? This touches not only plural marriage as presently practiced by Mormon fundamentalists but also Islamic polygamy presently if quietly practiced in the United States (see articles here and here for a quick introduction). All this, with two presidential candidates who each have polygamy in their family histories.
It is still possible this case will, like previous cases, end quietly. The court could yet find the issue moot, and dismiss the entire case, if Utah County officials credibly state they will not, now or ever, prosecute the Browns for violating the statute, despite apparent public statements to the contrary. But fairly strong language in the Memorandum Decision suggests the court will not entertain that argument, and Plaintiffs seem intent on having the case heard on the merits. This may not be the last time you read about Brown v. Herbert.