Big Love

September 5, 2012

Kody Brown and members of his family from the reality television show “Sister Wives” filed suit in Utah averring that the state’s law against bigamy should be overturned as a violation of the constitutional right to privacy. (U.S. District Court, Docket No. 2:11CV00652) U.S. District Judge Clark Waddoups refused to dismiss the suit despite promises from the Utah County Attorney’s Office that they will not prosecute the family for bigamy. The Attorney’s Office also unsuccessfully argued the family lacked standing because they have not actually been charged. Not surprisingly, this is not the first time issues surrounding the practice of bigamy have arisen in Utah.

The first in a series of relatively recent Utah cases treating the constitutionality of the bigamy statute (Utah Code Annotated §76-7-101) involved Arthur Green (State v. Green, 99 P.3d 820.  Mr. Green endeavored to only maintain one licensed marriage at a time by terminating each licensed marriage before getting a license for a new marriage. However, he was found to have already been in a valid unsolemnized marriage under Utah Code Annotated 30-1-4.5 when he subsequently married another woman. His conviction for violating 76-7-101 was upheld as was the constitutionality of the statute.

In a subsequent case, Rodney Holm was convicted of violating Utah’s bigamy statute for a 1998 “spiritual marriage” to Ruth Stubbs (State v. Holm, 137 P.3d 726). At the time,  Holm was already legally married to Ruth’s sister. In 2006, the Utah Supreme Court again upheld both the conviction and the constitutionality of the bigamy statute. Relying in part on Reynolds v. United States (98 U.S. 145), the court posited that “a state may, even without furthering a compelling state interest, burden an individual’s right to free exercise so long as the burden is imposed by a neutral law of general applicability” (137 P.3d 726, 742).

The Utah Supreme Court has been consistent in its rulings on the constitutionality of 76-7-101. It’ll be interesting to see whether the U.S. District Court believes plural marriages derive from genuine religious beliefs and are, consequently, protected by the right to privacy and freedom of religion.

For additional information on this issue, the following queries may be run on WestlawNext:

polygam! bigam! /s privacy
Content: State Cases
Jurisdiction: All States
Results: 9

ti(polygam! bigam! /s privacy constitution!)
Content: Secondary Sources
Jurisdiction: All State & Federal
Results: 11