August 27, 2014
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Polygamy ban in Utah declared unconstitutional by fed. judge
Another court undercuts marriage
The U.S. District Court in Utah is the latest epicenter in the battle over America's definition of marriage.
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Posted on Dec 16, 2013 | by Tom Strode

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SALT LAKE CITY (BP) -- A federal court has struck down a vital section of Utah's anti-polygamy law, lending credence to arguments by defenders of marriage that the reshaping of the institution would not end with legalizing same-sex unions.

Clark Waddoups, a judge in the U.S. District Court of Utah, invalidated a portion of the state law that prohibits bigamy, essentially decriminalizing polygamy in the process. In a 91-page opinion released Dec. 13, the federal judge ruled as unconstitutional a section prohibiting a married person from cohabiting with someone who is not his or her spouse.

In effect, Waddoups legalized polygamy as it is practiced in Utah primarily by members of fundamentalist spinoffs of the Mormon religion. Such polygamous households typically do not have multiple marriage licenses but treat all relationships between a man and the women with whom he lives as marriages. Waddoups ruled the cohabitation section of Utah's anti-polygamy law violated the free religious exercise clause of the United States Constitution's First Amendment and the due process clause of the 14th Amendment.

The ruling came in a lawsuit filed by Kody Brown and his four wives, who are featured in the television 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 Waddoups' opinion.

Defenders of the biblical and historic view of marriage said the decision undermines the institution and provides more evidence that its redefinition will be more expansive than just incorporating same-sex relationships.

"Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing," Russell D. Moore said in a statement released Dec. 14. Moore is president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).

"This is what happens when marriage becomes about the emotional and sexual wants of adults, divorced from the needs of children for a mother and a father committed to each other for life," Moore said. "Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children."

R. Albert Mohler, president of Southern Baptist Theological Seminary, said in a Monday (Dec. 16) blog post, "In one sense, the decision was almost inevitable, given the trajectory of both the culture and the federal courts. On the other hand, the sheer shock of the decision serves as an alarm: marriage is being utterly redefined before our eyes, and in the span of a single generation.

"Now, with the logic of moral revolution transforming marriage in all respects, polygamy follows same-sex marriage," Mohler added. "If marriage can be redefined in terms of gender, it can easily be redefined in terms of number."

Tony Perkins, president of the Family Research Council, said in a written statement, "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?"

Waddoups' ruling came in the wake of two more states, Hawaii and Illinois, legalizing gay marriage in November. Those actions brought to 16 the number of states to approve same-sex marriage. The District of Columbia also has legalized the unions.

The opinion also followed by less than six months the U.S. Supreme Court's June ruling that struck down a section of a federal law defining marriage as only between a man and a woman. In that 5-4 opinion, the justices said the 1996 Defense of Marriage Act (DOMA) violated "equal protection" under the Constitution by refusing to recognize gay marriages. The ruling opened the way for same-sex couples to access federal benefits previously limited to heterosexual couples.

Utah officials had yet to announce if the state will appeal Waddoups' ruling by mid-day Monday, 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, but marriage defenders are concerned about the continuing legal trend.

The ERLC's Moore said, "The loss of a marriage consensus is about more than just social policy. Marriage is an embedded picture of the Gospel, the union between Christ and His church. That's why Jesus pointed back to the beginning, to God's creational purposes. We must talk about these issues not simply from the point of view of nature, but from the point of view of the Gospel.

"When reality TV scenarios drive our judicial decisions, we've truly reached a strange time in American life," Moore said. "But the Gospel was given in strange times, and remains the power of God to salvation, calling us to repent of our self-made attempts at autonomy and back to God's purposes."

Waddoups, in his ruling, took issue 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."

In writing about what he called "religious cohabitation," Waddoups upheld the "purports to marry another person" language while striking "cohabits with another person."

To save the law, Waddoups adopted a narrow interpretation of "purports to marry," thereby 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."

Waddoups did not rely on the Supreme Court's June decision in the DOMA decision, but he did demonstrate a reliance 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 Constitution's due process clause.

Waddoups quoted the Lawrence ruling, which said, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." The Lawrence opinion, written by Associate Justice Anthony Kennedy, said 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."

Jonathan Turley, lead counsel for the Browns and a law professor at George Washington University in Washington, D.C., connected the homosexual and polygamy causes in his reaction to Waddoups' opinion.

"[P]lural families present the same privacy and due process concerns faced by [the] gay and lesbian community over criminalization," Turley wrote.

"The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns," he said. "It is a victory not for polygamy but privacy in America."

Kody Brown expressed gratitude for the opinion, saying in a written statement, "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."

Some women who have left polygamous marriages in Utah criticized the decision, however.

"I don't think there's any good polygamy," Kristyn Decker told The Salt Lake Tribune in a Dec. 15 article. Decker abandoned polygamy after 50 years in the Apostolic United Brethren.

The problems with polygamy include the fostering of abuse, especially of women and children, and coercion of women in polygamous communities, Decker said. Their salvation is based on their belief in polygamy, women are taught in such communities, and they face ouster from their families if they disagree, she told The Tribune.

"It's not about choice," she said. "It's about coercion."

President George W. Bush nominated Waddoups to the federal judiciary in 2008. Waddoups holds a law degree from the University of Utah and an undergraduate degree from Brigham Young University.

The text of Waddoups' ruling can be accessed at http://www.scribd.com/doc/191414121/Sister-Wives-Ruling.
--30--
Tom Strode is Baptist Press' Washington bureau chief. Baptist Press editor Art Toalston contributed to this article.



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