Wednesday, December 18, 2013

Plural Marriage Decriminalized

“Sister Wives” reality television show star Kody Brown and his four wives can play house without fearing a possible police raid should they ever return to Utah.

That's the crux of the ruling Federal Judge Clark Waddoups issued from his chambers in Salt Lake City last Friday in the case of Brown and his four wives, stars of the popular reality television show, “Sister Wives,” which appears to decriminalize plural marriage.

For those convinced Armageddon is here for heterosexual, monogamous marriage, rest easy:  Waddoups’ ruling is far from being a full out victory for polygyny or any kind of plural marriage and hardly spells the death knell of marriage as it’s traditionally known, between one man and one woman.

One of the key considerations in the case, Waddoups said, was that the Browns were not asking for legal recognition for the three additional “wives” Kody claims. 

What they were seeking – first and foremost – was the ability to live in Utah, should they return, without fear of a police raid. 

Judge Waddoups didn’t overturn the U.S. Supreme Court’s 19th century ruling outlawing polygamy.

All Waddoups said was adults, because they’re granted freedom of religion, a First Amendment right, are allowed to practice their faith.  If that means they want to live with other, unmarried adults – even have a relationship with them that looks like a marriage – they may do so without fearing the police will break up their families or jail them.

The biggest effect last week’s ruling has is taking away a tool police and district attorneys in Utah use to investigate polygyny – cohabitation.  In Utah, up until Waddoups’ ruling a week ago, it was illegal for unmarried adults to live with one another.

“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,” Utah’s law against cohabitation read until Waddoups’ ruling. 

Waddoups amended the statute by removing its last five words.

In addition, says the Browns’ attorney, Jonathan Turley, the ruling decriminalizes the Browns’ plural marriages – as well as other plural marriages – because of their faith as Fundamentalist Latter-day Saints, which continues to believe in polygyny even though the mainstream Church of Jesus Christ of Latter-day Saints stopped recognizing it more than 100 years ago.

In his 91-page ruling, Waddoups reviewed many of the same legal arguments that Phil Kilbride and I discussed in our book, Plural Marriage for our Times:  A Reinvented Option?  Second Edition, including the infamous Reynolds decision of 1879 by the U.S. Supreme Court prohibiting polygamy because it “has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”

“In other words, the social harm was introducing a practice perceived to be characteristic of non-European people – or non-white races – into white American society,” wrote Waddoups in his critique of the Reynolds decision. 

He also took issue with how the Supreme Court’s ruling is applied today, saying, “In the religious cohabitation at issue in this case … the participants have ‘consciously chosen to enter into personal relationships that they knew would not be legally recognized as marriage even though they used religious terminology to describe the relationships.’”

Waddoups also discussed the most controversial case in recent Supreme Court history, Lawrence v. Texas, which essentially made all sexual behavior between consenting adults legal, saying, the Browns’ “arguments about the meaning and implications of Lawrence for Utah’s ability to criminalize their private conduct of religious cohabitation are very persuasive.”

The judge noted that life has changed, saying that 42 percent of Utah residents between the ages of 18 and 64 were unmarried and that 30 to 60 percent of them were living with one another.

This goes to a point that Salt Lake City civil rights attorney Rodney Parker told me:  If Utah were serious about prosecuting unmarried adults living together, many of his clients would be jailed.

Indeed, around the country, the U.S. Census Bureau estimates there are about 8 million unmarried, opposite gender couples living together and nearly 40 percent of them are bringing up children.

Finally, Dr. Kilbride and I argued that in a time when marriage and family life gives every appearance of being threatened – either because people aren’t marrying or they’re divorcing, leaving children in the hands of their former spouse – plural marriage might very well be the antidote to fix these problems.

Waddoups appears to agree, writing that Utah’s ban on prosecuting “adulterous cohabitation” (sex between a man and woman without any commitment to ever marry) but doing so to those couples who practice “religious cohabitation” (committed to one another as husband and wife but without the marriage license) seems “counterproductive to the goal of strengthening or protecting the institution of marriage” and, thus, family life.

In the United States, according to the Census Bureau, there are two distinct minorities:  Married couples make up less than half of all households, about 48 percent, and less than 20 percent of all households consist of a married couple, where both the husband and wife have a genetic connection to the children they’re bringing up.

It’s difficult to see how defending heterosexual marriage will improve these numbers.  The more likely scenario, in the coming years, is that plural marriage and same-gender marriage will live alongside heterosexual, monogamous marriage.

While I continue to miss Phil Kilbride’s enthusiasm for the topic we researched and wrote about, I’m sure he takes as much satisfaction as I do in knowing Judge Waddoups used many of the same legal arguments we discussed in support of plural marriage.

Post Script:  Phil Kilbride passed away about a month after our book, “Plural Marriage for our Times:  A Reinvented Option? Second Edition,” (Santa Barbara, CA:  Praeger Publishers, August 2012) was published, in September 2012.  He was a wonderful man, great scholar, loving father and a tremendous colleague.  He’s very much missed.

No comments: