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Analysis: In Utah Polygamy Case, Federal Judge Upholds State's Authority To Define Marriage

Analysis: In Utah Polygamy Case, Federal Judge Upholds State's Authority To Define Marriage

A federal court on Friday ruled parts of a Utah law banning polygamy are unconstitutional. It did not, though, strike down the entire law. Some conservative groups reacted to the decision by noting its relation to state recognition of same-sex unions. The ruling, however, recognizes the constitutionality of banning state recognition of polygamy.

The case, Brown vs. Buhman, was brought by a polygamous family whose lives have been chronicled on TLC's "Sister Wives."

Both Family Research Council and The Southern Baptist Convention's Ethics and Religious Liberty Commission reacted to the ruling by arguing it was a continuation of the attack on marriage begun by states redefining marriage to include same-sex couples.

"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? " FRC President Tony Perkins said.

Similarly, ERLC President Russell Moore argued, "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. Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children. Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing."

Moore and Perkins may be correct in asserting that the judge was influenced by the recent advancement of gay marriage. The ruling, though, does not go as far as Moore and Perkins appear to imply. The judge recognizes that states may define marriage as between only two people for state-recognized marriages.

The Utah law in question states: "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."

Judge Clark Waddoups ruled that the restriction on cohabitation is unconstitutional because it violates the Brown family's rights to freely exercise their religion. The phrase "or cohabits with another person" must, therefore, be stricken from the law, he wrote.

That part was easy. Here is where the ruling gets confusing: The Utah Supreme Court has previously ruled that "purports to marry" applies to both civil marriage, marriages recognized by the state, and private marriages. A private marriage could be, for instance, a marriage recognized by a religious ceremony that is not accompanied by a marriage license from the state.

Waddoups is, apparently, seeking to rule that it is unconstitutional to ban private recognition of marriage, but Utah may define marriage as only between two people for the purposes of state recognition of marriages.

Waddoups' legal reasoning has confounded legal experts who, as of the Monday after the ruling, are still trying to make sense of it.

Since one cannot simply strike out "purports to marry" without eliminating the entire law, the ruling changes the definition of "marry" by the Utah Supreme Court to only include state recognized marriages.

Under this more narrow definition of marry, Waddoups writes, "The Statute remains in force, submitting anyone residing in Utah, knowing he has a wife or she has a husband or knowing the other person has a husband or wife, to prosecution for the crime of bigamy for entering into any further purportedly legal union."

Orin S. Kerr, Fred C. Stevenson Research Professor of Law at George Washington University, summarized the ruling this way: "In other words, as reconstructed by the court, people who are married by the state already can't get married a second time. But people who are already legally married are allowed to live with other people as if they are married to those other people, and to hold themselves out as being married to those other people, as long as they do not try to get married to those other people. At least, that's what I think the court is saying. This isn't an easy opinion to decipher."


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