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Originally published Saturday, December 14, 2013 at 2:41 PM

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Judge strikes down parts of Utah law banning polygamy

The Utah case could open a new frontier in the nation’s recognition of once-prohibited relationships


The New York Times

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You may have misread the article. Not surprising since the headline is misleading. ... MORE
There is no suggestion in this case that polygamy itself will be legalized. Rather... MORE
Well, it will certainly be interesting seeing how this plays out. At this point in time... MORE

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A federal judge has struck down parts of Utah’s anti-polygamy law as unconstitutional in a case brought by a polygamous star of a reality-television series. Months after the Supreme Court bolstered rights of same-sex couples, the Utah case could open a new frontier in the nation’s recognition of once-prohibited relationships.

Judge Clark Waddoups, of U.S. District Court in Utah, ruled late Friday that part of the state’s law barring “cohabitation” — the language used in the law to restrict polygamous relationships — violated the First Amendment guarantee of free exercise of religion and constitutional due process.

He left standing the state’s ability to prohibit multiple marriages “in the literal sense” of having two or more valid marriage licenses.

Waddoups, who was appointed by President George W. Bush, wrote a 91-page decision that reflects — and reflects upon — the nation’s changing attitude toward government regulation of personal affairs and unpopular groups. The Supreme Court supported the power of states to restrict polygamy in an 1879 decision, Reynolds v. United States.

The challenge to the law was brought by Kody Brown, who, along with his four wives and 17 children, stars in “Sister Wives,” the reality-television show. The argued that the state’s prohibition on cohabitation violated its rights to privacy and religious freedom.

The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon church, which gave up polygamy around 1890 as Utah was seeking statehood.

Waddoups made clear that the Brown case was not an easy one for him, writing: “The proper outcome of this issue has weighed heavily on the court for many months.” He noted the shifts in the way the Constitution had been interpreted over the past century to increase protection for groups and individuals spurned by the majority.

The judge also cited the decision in Lawrence v. Texas, the 2003 Supreme Court case that struck down laws barring sodomy. He quoted the majority opinion by Justice Anthony Kennedy that stated that the Constitution protected people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

In a statement, Brown said he and his family were “humbled and grateful for this historical ruling from the court today.” He noted that “many people do not approve of plural families,” but “we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.”

As same-sex marriage has gained popular approval and legal status in recent years, some have hoped — and some feared — that other forms of cohabitation might follow. Justice Antonin Scalia, in his bitter and famous dissent from the 2003 Lawrence case, said the nation was on the verge of the end of legislation based on morality, and was opening the door to legalizing “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

Jonathan Turley, a law professor at George Washington University who represented the Browns in this case, said in an exchange of emails that the case was “about privacy rather than polygamy.” He added, “Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.”

Utah’s attorney general’s office has suggested it would appeal any decision that struck down the polygamy law. Attorney General John Swallow resigned last month under a cloud of multiple investigations, and his replacement has not been named.



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