By John M. Glionna
10:49 PM PST, December 17, 2013
LAS VEGAS — Advocates for so-called plural marriages are applauding a ruling by a U.S. District Court judge that struck down key segments of Utah's anti-polygamy law, saying they violated constitutional rights to privacy and religious freedom.
In a 91-page decision issued Friday, Judge Clark Waddoups effectively decriminalized polygamy in Utah, ruling that a central phrase in the state's law forbidding cohabitation with another person violated the 1st and 14th amendments.
The ruling, which distinguishes between polygamy and bigamy, was the result of a lawsuit filed in 2011 by Kody Brown, star of the reality series "Sister Wives," now in its fourth season on cable TV's TLC. Brown has four "wives" — who together have 17 children — but is legally married only to his first, Meri Brown.
Proponents say polygamist cohabitation among fundamentalist Mormons traditionally involves one marriage certificate; any additional wives represent religion-based relationships that are protected under the Constitution. They say the judge's ruling has preserved laws against bigamy, which involves more than one marriage license.
Waddoups ruled that while there was no "fundamental right" to practice polygamy, the central issue was religious cohabitation, and that the language in the Utah law — "or cohabits with another person" — should be struck.
Proponents say the judge's ruling grants polygamists the same legal standing as same-sex couples.
Mark Henkel, who describes himself as a "national polygamy advocate," says Americans have a double standard when it comes to plural relationships. "Here we are in society with a TV show with Hugh Hefner with three live-in girlfriends and it's all the super buzz in Hollywood and everybody loves it. But if he was to marry them, suddenly he's a criminal. That's insane," he said. "We're just regular, normal consenting mainstream adults choosing a relationship that works for us."
Jonathan Turley, a Washington-based attorney who represents the Brown family, called the ruling a landmark.
"The importance of this decision is that for the first time in the history of the state, a plural family can publicly be what they are in private," he said. "The law required such families to live as a lie. Such Utah families had to pretend they were not a plural family to avoid investigation and prosecution."
Paul Murphy, a spokesman for the Utah attorney general's office, said state lawyers would soon decide whether to appeal the ruling. "Utah and Texas are unique in that their bigamy laws include language against cohabitation, so we don't think this ruling, if it stands, will have much nationwide significance," he said.
In a statement, Brown said he was "humbled and grateful" for the ruling: "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 … will come to respect our own choices."
One legal expert said Waddoups' ruling defended Americans' right to privacy. "The whole jurisprudence when it comes to privacy is not clear," said Carl Tobias, a constitutional law professor at the University of Richmond. "It's not new that someone says the state should stay out of regulating the family."
He said any appeal on the case might be heard by the U.S. 10th Circuit Court of Appeals in Denver. "I'm assuming that court might have members of the Mormon faith or those who live among them," he said. "They have a sense of the religion and what it means."
Turley said he received a call from Brown after the first episode of "Sister Wives."
"The day after the pilot ran, the prosecutors were publicly denouncing the show, saying the family was committing felonies every night on TV," he said. "The state spent two years trying to find any evidence of a crime or of abuse by this family and found none. It is as it appears on TV. It's an unconventional family, but there is no evidence of wrongdoing."
Turley filed the case in 2011 and faced lawyers for the state attorney general's office in hearings before Judge Waddoups this year. He criticized comments by political conservatives that Waddoups' ruling sullied the traditional definition of marriage.
"This really is a victory that has more to do with privacy than polygamy," he said. "Very few Americans can imagine what it's like to live in a state where family is defined by law as a criminal enterprise. These people lived under the threat that their children could be taken from them at any time."
He said members of plural relationships had the right to be left alone:
"You can't say you believe in the freedom of religion as long as it's yours. It applies to everyone or it applies to no one."
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