Dec 202013

legal-gavel-medium-425x283-4562001If you follow the world of sex and law (as I assume you do), you may have noticed that the internets are ablaze with enthusiasm over a judge in Utah taking a slice out of the bigamy law.  The short form of the long story is that the Brown family, featured on reality TV show Sister Wives, fled to Nevada in 2011 for fear of prosecution for Polygamy, and then filed a lawsuit against various officials (the DA, the Governor, the Sheriff) in Utah.  Some of the charges were thrown out, but one claim – against County Attorney Jeff Buhman – went forward.   On Friday, December 13th, the Federal District Court in Utah issued a 91 page decision holding that part of the Utah bigamy law is unconstitutional.  The Salt Lake Tribune said that the ruling “effectively decriminalized bigamy,” although the statute “technically survived the ruling.”  Nevertheless, zeal over the decriminalization is echoed coast to coast, though in different words (in some circles, it’s “sanctioned sodomy, same sex marriage, and now legalized polygamy.. HOORAY!” and in others, it’s “fire, brimstone, plague, and now legalized polygamy!!”)

In no way do I want to take anything away from this victory.  It is momentous that the court, especially in the context of a challenge to the bigamy law, should side with what we outside of Utah might call a “Poly family.”  This is a great moment and a great victory for the Brown family & for attorney Jonathan Turley.  Most importantly, with the victory The Browns won freedom from fear of prosecution.  And I heartily recommend reading the 91 page opinion of the court – or Attorney Turley’s great arguments in the filed documents.  Buried in the legalese of the opinion are nifty discussions of Lawrence v Texas and Sexual Freedom.  But I think it’s instructive to look carefully at what this opinion actually does.

The first clause of the Utah law reads: “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 added.   I daresay that most of us think the ‘crime’ of bigamy involves being married to more than one person, and claiming some kind of legal status for each marriage.  But who knew: in Utah, you could be found guilty of bigamy if, married to someone, you cohabit with another.  The court calls this “religious cohabitation,” which they say occurs when “those who choose to live together without getting married enter into a personal relationship that resembles marriage in its intimacy, but claims no legal sanction.”  (Brown decision, p. 35).  No religious tradition invoked, no ceremony, no party – merely a secondary relationship that ‘resembles marriage in its intimacy’ was a felony under Utah law…. as long as there was also cohabitation.

This gets ludicrous with only a bit of effort.   If someone is married, but has an “intimate relationship” with another person, they’re OK as long as the other person doesn’t move in with them…in which case, by literal reading of the statute, they are guilty of bigamy (a felony, punishable by up to five years).  If the parties in question have any kind of private ceremony – anything from hand-fasting to collaring – then they’re in real trouble, because then it’s certainly “religious cohabitation.”  In his opinion, the judge draws out the absurdity of this by posing a number of hypothetical situations to one of the attorneys (Brown decision, p  59-62).  You can almost hear the poor attorney squirming as he fumbles each situation in turn.  It becomes very obvious that this ‘prong’ of the statute is not “operationally neutral” in other words, this part of the law cannot be applied to everyone equally without ridiculous results.  And so this part of the law was declared unconstitutional.

In the end, the court removed the cohabitation part of the statute, but left the bigamy part intact.  It also defined bigamy specifically as more than one purportedly legal marriage (Brown decision, p  90-91).  The Utah statute now reads very much like the bigamy statutes that still exist in most other states.   So… the court removed the part of the law that said that you can’t be married to one person and live with another (with or without your spouse).  In other words:  the court has stepped in and sanctioned relationships that have nothing to do with the legal system – that were created entirely outside of its jurisdiction.    Gee.. thanks, courts.  But I have a question: why is it that every time you stick your nose into relationships that are not legally created, you sound like your legislating from the 1950s?  Why must the legal system lag so far behind cultural reality?  Don’t get me wrong: decisions like this one, or like Lawrence, are vital for framing sexual freedoms in legal terms.    But it seems to me that consensual sodomy  – for example – was culturally acceptable long before the Lawrence Court gave it the legal stamp of approval.  If we are going to allow the legal system to pour cement  over our cultural mores, we’d better keep pushing it into the future – one day it may even catch up to where we are now.