For better or worse, the modern face of polygamy in the United States is Kody Brown, a floppy-haired man with one legal wife, three “spiritual” wives, and more than a dozen kids. Unlike the polygamists of an earlier generation, who lived in fear of the authorities and the shaming public eye, Kody and his brood have lived their lives for many years now on television, as stars of the reality show Sister Wives. They have also been the stars of a battle in federal court over the constitutionality of Utah’s broad definition of the crime of bigamy. Although the district court sided with Kody and invalidated the offending provision (discussed below), the U.S. Court of Appeals for the Tenth Circuit just reversed that ruling and reinstated Utah’s ban.
Sister Wives: A G-Rated Show About Plural Marriage
When the show began, they all lived in Lehi, Utah, in a specially designed polygamous house on a television reality show. Kody was legally married to Meri, with whom he had just one child, and was in marriage-like relationships with first two other women, Janelle and Christine, and then a fourth, Robin, whom he acquired during the show’s first season. (Since then, he appears to have divorced Meri and married Robin, in order to be able to adopt Robin’s kids from a prior marriage, but the polygamous nature of the household is unchanged.)
Kody has explained the religious motivation his polygamous lifestyle. He is a member of the Apostolic United Brethren, a break-off sect of Mormonism that is centered in Salt Lake City, Utah. Why polygamy? The Browns’ legal complaint states that because of their faith, Kody and his wives “believe that only through celestial marriage can they ensure the salvation of their souls following death.” The television version of that is Kody’s belief that “love should be multiplied, not divided.”
Although many Americans associate polygamy with mainstream Mormonism, the Church of Latter Day Saints abandoned polygamy as a part of official church doctrine in 1890. But several fundamentalist sects—including the FLDS sect that was targeted in a raid on the Learning for Zion ranch in Texas a few years back—continue to promote and practice polygamy. Researchers estimate that the United States is home to about 50,000 practicing polygamists, living mostly in small towns in Arizona, Colorado, and Utah.
The show mostly focuses on the boring details of everyday life—cooking, cleaning, going to the gym, figuring out how to pay for seventeen kids to go to college, and so on. The unmistakable message is “Hey, America, we’re just like everyone else.” Kody is unapologetic about his unconventional lifestyle, even one that happens to be against the law in Utah.
From Utah to Nevada: The Brown Family Flees
While many reality shows showcase drama at every turn, Sister Wives goes to great lengths to show how little can happen in a single episode—or an ordinary day in a polygamous family. And that, precisely, is the point. There is nothing inherently abnormal or destructive, the show teaches, about polygamy.
The first hint of drama came in the second season, as the cast began to refer to “the investigation,” launched first by local prosecutors and later by the Utah Attorney General’s Office. The “drama” seems contrived, as they hide behind closed curtains to avoid being seen, but keep the camera crews on the inside of the house—broadcasting their hiding to the world. They talk about how scary it is to be public with their lifestyle, as they prepare to fly to New York for an appearance on NBC’s Today Show.
Whether the fear was real or trumped up to create some tension on an otherwise relatively boring show (a fact that has not stopped me from watching most of the episodes), Kody makes the executive decision that the entire family must move to Nevada. In the dead of night, but with a camera crew filming the entire exodus, the Brown family snuck over the state line to Nevada in order to avoid prosecution for bigamy.
Nevada was to be a safe harbor for the Brown family because of a difference in the definition of bigamy. The traditional definition of bigamy is having, or attempting to have, more than one husband or wife. So defined, bigamy has always been a crime in the United States. It was, and is, a crime in every state. It was also declared a federal crime in 1862 by the Morrill Act—aimed specifically at the Mormons—which was upheld in 1878 by the U.S. Supreme Court in Reynolds v. United States against a religious freedom challenge. Indeed, Utah’s admission to statehood was conditioned on its irrevocable prohibition of bigamy.
The bigamy restriction is enforced separately by marriage law and by criminal law. From the marriage-law perspective, a bigamous marriage never really exists, even with a license and solemnization (the usual formalities required to form a valid marriage). Bigamous marriages are void per se. Thus, it isn’t actually possible to have more than one legal husband or wife because the second and subsequent attempts to marry result only in void and unrecognizable unions. But in criminal law, the very attempt to create such a union is itself a criminal act.
Under the traditional definition of bigamy, the Browns are not guilty of a crime because there is only one legal marriage in the family (Kody-Meri, initially, and Kody-Robyn, later.) The nomenclature Kody and the women apply to the other marriages is “spiritual” marriage—but that has no legal meaning. “Marriage,” for legal purposes, is a legal, civil marriage, regardless of whether it was accompanied by religious rites or not. Thus, by opting for a “spiritual marriage”—a non-marriage in the eyes of most bigamy laws—Kody has steered clear of criminal liability. Other practicing polygamists have used different techniques to avoid running afoul of criminal law, such as marrying and divorcing each wife, but continuing to live with all of them at the same time.
Utah, however, is aware of the workarounds adopted by most practicing polygamists and has tried to criminalize their behavior with a broader definition of bigamy. Under section 76-7-101 of the Utah Criminal Code, 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.” (Emphasis supplied.) Bigamy, under this same section, is a third-degree felony. (Cohabitation, here, means living together in a sexual relationship.) Moreover, an opinion from the Utah Supreme Court includes religious ceremonies that are undertaken without a civil license as falling under the heading of “purporting to marry.”
Under Utah’s definition of bigamy, it seems clear that all five adults in the Brown family are guilty. Kody is guilty because he cohabits with other women while knowing he has a wife. And the wives are each guilty because they are cohabiting with Kody while knowing he has a wife. Notably, the original anchor marriage between Kody and Meri is what turns their lifestyle into a crime. If Kody and Meri had never married (or were to divorce), the family would have no problem at all with the bigamy law. All states allow a single man to maintain sexual relationships with several women at once, and/or to cohabit with several women at once. (Groups of unrelated individuals may run afoul of local zoning ordinances, a scene being played out now in this controversy in Connecticut, and one that has been litigated several times before. Under the U.S. Supreme Court’s ruling in Village of Belle Terre v. Boraas, there is no constitutional right to live with unrelated individuals.)
Nevada, although also home to some polygamists, uses a more conventional definition of bigamy. Section 201.160 of the Nevada Code provides that “Bigamy consists in the having of two wives or two husbands at one time, knowing that the former husband or wife is still alive.” Thus, Nevada is a safe haven for a family like the Browns, in which no one has two legal wives (or two legal husbands, for that matter). Mere cohabitation is not enough to trigger a bigamy prosecution.
Brown v. Buhman: A Victory Followed by a Loss for Kody
From the safety of Las Vegas, Kody sued the state of Utah, alleging that its bigamy law was unconstitutional to the extent it criminalized cohabitation-while-married. At the district court level (a trial court in the federal system), Kody won his case. In Brown v. Buhman, the court granted summary judgment to Kody—a state of a lawsuit in which the court finds there are no genuine disputes of facts between the parties, leaving only matters of law for the court to decide. And the legal question in this case was straightforward: Can Utah, consistent with the federal constitution, criminalize Kody’s style of polygamy?
The ruling in Kody’s favor rested on two basic conclusions: First, Utah’s criminalization of mere cohabitation with a second person while married to a first is unconstitutional under both the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause, the latter of which has long been recognized to protect a somewhat amorphous right of privacy. And second, the court applied a narrowing interpretation of the “purport to marry” clause in order to save it from invalidation on constitutional grounds. Under the court’s interpretation, one “purports to marry” only when one attempts to procure a marriage license or solemnize a marriage with the expectation that it will be legally recognized. Merely participating in spiritual or commitment ceremonies without any of the trappings of legal validity is not enough. On this latter point, the court distinguished a case from the Utah Supreme Court,
State v. Holm, in which it had held that the bigamy law applied to both state-sanctioned and non-state-sanctioned (e.g., spiritual) marriages.
Although the U.S. Supreme Court’s ruling in Reynolds v. United States (1879), in which it upheld the federal bigamy ban over a free-exercise challenge, hung over the Brown case, the court did not think it applied to the cohabitation provision. The court instead relied on a more recent case, Lawrence v. Texas (2003), in which the Supreme Court invalidated a state sodomy ban on the grounds that the Due Process Clause protected whatever consenting adults choose to do with each other in the privacy of their own homes. The state had trouble justifying the cohabitation provision of its bigamy law as anything other than moral disapproval—but Lawrence says explicitly that such a rationale is insufficient to defend a law that infringing on fundamental rights. It did not help that the state did not enforce any of its other laws purporting to criminalize consensual sexual activity; only the polygamists were prosecuted.
Because the court concluded that the Utah law could not survive under the federal Due Process Clause, it ordered the phrase “or cohabits with another person” to be stricken from the Utah law. The ruling left the statute in place to the extent it criminalizes old-fashioned bigamy—marrying or purporting to marry someone while married to someone else.
Utah appealed the ruling, however, and won. In a recent ruling, Brown v. Buhman (2016), the Tenth Circuit reversed, but on jurisdictional grounds. While the lawsuit was pending in the district court, the Utah County Attorney’s office closed its “file” on the Browns and adopted a policy, under which bigamy would be prosecuted only against those who induce a partner to marry through misrepresentation or are suspected of committing a collateral crime such as fraud or abuse. There have been such prosecutions against polygamists throughout history for child rape, forced marriage, welfare fraud, and so on. The new policy, then, was in essence a return to an old policy—willful blindness to a relatively benign offense.
But the new/old policy also changed the situation for the Browns. They were no longer subject to the threat of prosecution merely for cohabiting-while-married, and they had never been alleged to have committed any collateral offenses. So, in the view of the court of appeals, they could have safely moved back to Utah. But that fact has consequences for federal courts, which are courts of limited jurisdiction. As the Tenth Circuit wrote, “[t]hey lack power to decide issues—however important or fiercely contested—that are detached from a live dispute between the parties.” This reflects the “case or controversy” requirement under Article III of the Constitution, which curtails the jurisdiction of federal courts. The case or controversy requirement is one component of separation of powers—it prevents courts from overstepping into policymaking, which is the job of the legislature. Although the Browns might have had cause to file their suit because they faced a “credible threat of prosecution,” it became moot after the new policy was adopted. Even more so since they moved to Nevada, and Utah had no grounds for prosecuting them while living in another state. In short, there was nothing for the court to resolve at that point—since the law was not going to be applied to the Browns.
The Tenth Circuit thus remanded the case with an order that the district court’s ruling be vacated. The Browns are free to move back to Utah without fear of prosecution as long as they continue to their ultra-ordinary lifestyle and stay away from the habits that have gotten other polygamists (e.g., Warren Jeffs!) in trouble.
The Brown case does not raise the more interesting question—posed by Justice Alito during the oral argument in Obergefell v. Hodges—whether granting same-sex couples the constitutional right to marry means that polygamy must also be recognized. (This issue is discussed in detail here.) The specter of polygamy has at least lightly haunted the marriage equality movement—and we still have no answer. Perhaps Kody will take another woman to the civil altar and then sue again.