By Mark Ellis
A section of Utah’s anti-polygamy law was struck down by a federal judge, essentially decriminalizing polygamy in the process.
Clark Waddoups, a judge in the U.S. District Court of Utah, overturned a section of the state law that prohibits bigamy in a 91-page opinion released Dec. 13, according to Baptist Press.
The judge, appointed by President George W. Bush, legalized polygamy as practiced in Utah primarily by Mormon sects. The sects usually do not have multiple marriage licenses but treat the relationships as marriages. Waddoups said the cohabitation portion of Utah’s anti-polygamy law violated the free religious exercise clause of the U.S. Constitution’s 1st Amendment and the due process clause of the 14th Amendment.
The ruling followed a lawsuit by Kody Brown and his four wives, who appear in the TV reality show “Sister Wives” on TLC. Brown and only one of his wives have a marriage license. They are members of the Apostolic United Brethren, which believes polygamy is “a core religious practice,” according to the judge’s opinion.
Defenders of traditional marriage said this ruling will further erode the institution and provides more evidence the redefinition of marriage will go beyond same-sex relationships.
“Same-sex marriage advocates have told us that people ought to be able to ‘marry who they love’ but have also always downplayed the idea that this would lead to legalized polygamy, a practice that very often victimizes women and children. But if love and mutual consent become the definition of what the boundaries of marriage are, can we as a society any longer even define marriage coherently?” said Tony Perkins, president of the Family Research Council.
Utah officials haven’t said if the state will appeal Waddoups’ ruling, but Gov. Gary Herbert said Dec. 14 he wants to review the opinion before a decision is made. The scope of Waddoups’ opinion is limited to Utah, according to Baptist Press.
Waddoups’ ruling disagreed with a 1973 state law that says 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.”
Waddoups upheld “purports to marry another person” in the ’73 law, but struck down the portion dealing with cohabitation.
The judge gave a narrow interpretation of “purports to marry,” by allowing it “to remain in force as prohibiting bigamy in the literal sense — the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage” according to Baptist Press.
He did not rely on the Supreme Court’s decision in the DOMA case, but on Lawrence v. Texas, a 2003 high court opinion that struck down state laws barring homosexual conduct. The Lawrence ruling was based on a “liberty interest” found in the due process clause of the Constitution.
Waddoups quoted from the Lawrence case, which said, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Associate Justice Anthony Kennedy wrote in the Lawrence decision, that laws barring specific sexual acts “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”
Kody Brown, star of the reality TV program, expressed gratitude for the opinion, saying, “Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, 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.”
Critics of polygamy say the practice fosters abuse of women and children, and the coercion of women in communities where it hides.
Judge Waddoups holds a law degree from the University of Utah and an undergraduate degree from Brigham Young University.