Sunday, February 28, 2016

Utah Revisits Polygamy

As we discussed at the beginning of the semester, in 1878, the Supreme Court ruled in Reynolds v US that anti-bigamy laws were constitutional and the restriction of marriage to two people was not a violation of the Mr. Reynold’s right to exercise his religion.  This ruling set the precedent for anti-bigamy laws in Utah for the next 100+ years, although these laws were rarely enforced.  In most cases polygamist families all live together, but only one of the unions actually has a marriage license, while all the others are spiritual.  For anyone who has seen the hit TLC TV show “Sister Wives”, this arrangement may seem familiar.  The show centers around Kody Brown and his four wives living together in Utah.  This arrangement and many others like it have been allowed to continue, even though they are technically illegal, as long as everyone involved is an adult and an otherwise law abiding citizen.  

In 2013, the family successfully challenged part of Utah’s polygamy ban.  They argued that the portion of the statute that outlawed cohabitation violated their first amendment right to practice their religion.  The State argued that polygamy is often associated with other crime including sexual assault, statutory rape, and the exploitation of government benefits.  A judge agreed with the Brown family over Utah and struck down that part of the statute.  It is important to note that in this case there is a necessary distinction between polygamy and bigamy.  Polygamy, which is now decriminalized under this ruling, is the practice of taking multiple spouses and all living together.  Bigamy, which remains illegal, is the practice of holding marriage licenses with multiple spouses.  This ruling essentially protected families like the Browns from prosecution.  There are estimated to be roughly 30,000 polygamists living in Utah.  

Recently, Utah appealed the 2013 decision and the case was heard by the 10th circuit court in Denver.  The family claims that the law makes them live under the threat of constant prosecution and is an unconstitutional restriction of their right to freely practice their religion.  According to traditional Mormon teachings, multiple marriages are necessary to reach heaven.  The family believes that although Reynolds has been the standard for years, it is time for the court to revisit the decision and the precedent it set.  They argue that the state’s claims that polygamy facilitates illegal activities are unwarranted.  They argue that their TV show is evidence that polygamous families can be both functional and healthy and should therefore not be unfairly persecuted.  

The Brown family and their lawyers also point to last summers’ landmark same sex marriage ruling as opening the door to polygamous unions.  Most of this comes from Chief Justice John Roberts’ dissent where he criticizes the majority for appearing to arbitrarily including the word “two” in some places in the decision, but not in others.  They also make the argument that as long as the court is willing to expand its definition of marriage, their claims are valid.  The problem with this, though, is that in cases like this the Court tends to take public sentiment and consensus into account.  In the case of same sex marriage, the court recognized the public’s changing opinion of same sex marriage and the widespread consensus in favor of allowing same sex couples to marry.  This reasoning does not necessarily help the Brown family as last summer, right after the Supreme Court ruled in favor of same sex marriage, a Gallup poll found that only 16% of Americans believed plural marriage to be acceptable.  On the other hand, the Court has, on occasion, drawn on international norms and consensus to make decisions.  For instance, when the Court ruled against the constitutionality of sentencing minors to the death penalty, it cited movements against this in states and also internationally.  This could help the Brown family, as plural marriage is legal and considered common in many parts of the world.  I think that as this case moves through the court system, the country may be forced to revisit polygamy.  At this point I don't think the Utah law will be overturned.

What do you think? Is it time to revisit the Reynolds decision? Are the Browns free exercise rights being violated? 


Matthew L. said...

Although I do agree with you that it is unlikely for the law to be overturned given the current situation, I do not believe that the proof needed to uphold this sentiment is valid. My main question regarding the legality of this issue would be in considering the origins of the monogamistic laws. As you covered in your post, you state that polygamy is commonly fought against due to its past correlation with illegal activity, as well as it being taken advantage of for tax evasion. Although some may view this as a compelling state interest to curtail polygamistic practices, I disagree. If an activity is illegal, you are unable to truly study the impact that the practice has on society has a whole. Therefore, we are unable to state whether the compelling state interest is authentic in this situation. I do understand that this is an issue of public opinion towards the topic that may make this road to legality more difficult, and with that, there is a drastic need for a revisitation of the public's view of polygamy. As far as a public standpoint, we are all, including myself, unaware if the perceived view of polygamy is true, or just a fallacy.

Jim R said...

I do not believe that this decision will be revisited in the foreseeable future. As Maddie pointed out in her original post, "only 16% of Americans believed plural marriage to be acceptable." The Supreme Court has a duty to rule on cases that are more divisive to the nation. Public opinion of same sex marriage at the time of the marriage ruling was much closer between its proponents and opponents. Until the American public sees this as a major issue they wish to hear, no ruling will be performed.

In addition, with the recent loss of Justice Scalia and the lack of cooperation between the President and the Senate, it is highly unlikely for a clear ruling to be formed. There are currently four justices who tend to lean towards the liberal perspective and four others who tend to lean towards the conservative perspective. If there were to be a tie in the voting, the precedent would rely on the district courts ruling and it could no longer be challenged in future cases, leaving the issue no clearer than where it started. In my opinion, if this case is to be heard, it should be at a time when the Supreme Court returns to full strength with 9 sitting justices.

If the case were to be heard, I also feel that the Supreme Court is more likely to use other developed or highly developing nations (United Kingdom, various European Union members, Brazil, China, Japan, Australia, etc.) to help guide its decision on the issue. Most of these places are more likely to favor marriages between only one set of people based on the religious backgrounds that their respective countries practice.

Caroline S. said...

I struggle to accept the Reynolds ruling because of the Court's position on the belief/action dichotomy as the rational behind its decision. I think that it is unlikely for the law to be overturned, however I think that it is important for the court to look into the racist and discriminatory intent behind this law and to review in depth whether or not Reynolds was ruled incorrectly. I understand that public sentiment is not currently in favor of polygamy, however there is not compelling state interest to prohibit polygamy today. I believe that a review of this decision would be a welcomed opportunity for the Supreme Court to demonstrate its continued interest in protecting the minority from the tyranny of the majority and to prove that the court will continue to function and uphold the Constitution in spite of Justice Scalia's recent passing. Although I believe it to be highly unlikely- I believe the Court should overturn the Reynolds decision in favor of the "Sister Wives".