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'De Facto' Polygamy De-Criminalized in Utah by Federal Court

     By: Mark Henkel
Date: Dec 24, 2013
Word Count: 1600 words
Cross-Reference: Brown v. Buhman, Sister Wives, Clark Waddoups

AUTHOR: Mark Henkel  
Mark Henkel is both the National Polygamy Advocate for the overall National Polygamy Rights Movement for Consenting Adults and the Founder of the organization, the non-Mormon, cross-denominational, Christian polygamy rights organization. He has been interviewed and reported by numerous major media in the United States, including FOX Business Network's "Stossel," ABC's "20/20," NBC's "TODAY Show," CourtTV (TruTV), 700 Club, Newsweek, Associated Press, Washington Times, and many more as noted at 
He is also a professional speaker who has given numerous speeches before non-polygamous audiences, including a Keynote Speech at Yale. 
FMI, see  
"De Facto" Polygamy De-Criminalized in Utah by Federal Court  
. . . . . . . . . by  
. . . . . . . . . . . . . . Mark Henkel  
Copyright © 2013 ALL RIGHTS RESERVED 

On Friday the 13th of December, 2013, Federal District Court Judge Clark Waddoups struck down the "cohabits prong" of Utah's 1973 anti-bigamy law, limited the definition of its "purports prong," and thereby de-criminalized de facto polygamy.

On   December   13,   2013,   Judge   Clark   Waddoups   handed   down   the   federal   District   Court's   Decision   in   the   Utah   case   of   Brown   v.   Buhman.     This   case   had   been   filed   on   Wednesday,   July   13,   2011,   by   the   TV   stars   of   TLC's   polygamy   reality   show,   "Sister   Wives."     With   constitutional   attorney   Jonathan   Turley   as   legal   counsel,   Kody   Brown,   his   legally   married   first   wife   (Meri),   and   his   three   unlicensed   wives   (Janelle,   Christine,   and   Robyn),   sued   the   State   of   Utah,   asserting   that   Utah's   1973   anti-bigamy   statute   was   unconstitutional. 
That   the   decision   was   given   on   a   "Friday   the   13th"   did   not   go   unnoticed.     Some   irresponsible   news   outlets   even   attempted   to   "scare"   their   audiences.     But   contrary   to   such   reports,   the   Decision   did   not   "legalize   polygamy."      
While   de   jure   polygamy   remains   criminalized,   Judge   Waddoups'   Decision   merely   de-criminalized   de   facto   polygamy. 
To   more   accurately   grasp   the   Decision,   one   must   first   understand   the   relevant   terms.    
Bigamy   is   the   term   used   in   law   –   the   actual   crime.   Contrary   to   popular   misunderstanding,   it   is   not   limited   as   a   "polygamist   with   only   two   spouses."     Rather   than   referring   to   any   such   limit,   bigamy   refers   to   "secondary   marriage."     By   law,   no   one   is   authorized   to   have   any   "secondary   marriage"   –   no   matter   how   many   "secondary   marriages"   they   have.     For   example,   when   a   polygamous   man   with   three   wives   is   accused   of   the   crime,   he   would   be   charged   with   two   counts   of   bigamy.     The   first   count   of   bigamy   would   be   for   his   first   "secondary   marriage"   to   his   second   wife.     The   second   count   would   be   for   his   second   "secondary   marriage"   to   his   third   wife. 
Polygamy   is   the   anthropological   term   for   one   gender   marrying   multiple   partners   of   the   opposite   gender.     Accordingly,   polygamy   includes   both   subsets   of   polygyny   (one   man   married   to   multiple   women)   and   polyandry   (one   woman   married   to   multiple   men).     Unlike   polygamy,   however,   group   marriage   refers   to   any   configuration   of   genders   married   together   and   polyamory   refers   to   any   configuration   of   relationships   as   the   multiple   participants   self-define   (with   or   without   marital   commitment).   Having   only   non-monogamy   in   common,   laws   affecting   polygamy   also   affect   group   marriage   and   polyamory. 
With   the   difference   between   the   legal   term   of   bigamy   and   the   anthropological   term   of   polygamy   understood,   one   can   more   easily   understand   the   equally   important   difference   between   de   jure   polygamy   versus   de   facto   polygamy.    
In   legal   terminology,   de   jure   means   by   law   (as   in,   being   lawful   and   legitimized),   while   de   facto   means   factually   existing   (but   not   by   law).     Hence,   de   jure   polygamy   refers   to   bigamy   involving   multiple   government   marriage   licenses   (i.e.,   marriages   legitimized   by   law).     Conversely,   de   facto   polygamy   refers   to   plural   marriages   that   involve   no   more   than   only   one   legal   government   marriage   license   to   only   one   spouse   (as   legally   allowed   and   recognized). 
Most   practicing   polygamists   (in   Utah,   around   the   United   States,   and   beyond)   neither   seek   nor   obtain   government   marriage   licenses   for   any   more   than   one   wife.       Accordingly,   as   their   additional   marriages   are   not   "legitimized"   by   any   government   marriage   license,   such   plural   families   are   simply   de   facto   polygamists   –   including   the   Brown   family.    
Any   polygamist   who   seeks   to   obtain   such   a   government   marriage   license   for   any   spouse   beyond   the   first   legally   married   wife   is   seeking   to   have   their   marriage   legitimized   by   law.       Doing   so   is   understood   as   de   jure   polygamy. 
Unlike   the   honest   polygamy   of   consensual   de   facto   polygamists   wherein   all   the   unrelated   adults   freely   consent   to   the   plural   marriages,   the   real-world   occurrences   of   de   jure   polygamy   are   mostly   limited   to   what   is   known   as   "dishonest   bigamy."   Indeed,   "dishonest   bigamy"   refers   to   someone   who   secretly   marries   multiple   spouses   in   different   locations   (including   with   full   government   marriage   licenses)   wherein   none   of   the   spouses   even   know   of   each   other.     Adamantly   opposing   the   deceitfully   misrepresentative   aspect   of   such   "dishonest   bigamy,"   the   freely   consenting   adults   in   most   examples   of   de   facto   polygamy   emphatically   agree   with   society   having   a   law   that   sanctions   a   legal   punishment   against   such   cruel   fraud. 
With   the   foregoing   understood,   the   Brown   v.   Buhman   Decision   very   clearly   did   not   "legalize   polygamy."     At   the   end   of   Footnote   6   on   Page   9   of   the   Decision,   the   Judge   quite   directly   declared,   "the   court   indeed   concludes...   that   there   is   no   'fundamental   right'   of   individuals   to   enjoy   official   State   recognition   or   legitimation   of   their   'purported'   polygamous   marriages."     Explicitly,   the   decision   did   not   "legalize"   any   right   to   government-recognized   or   government-licensed   de   jure   polygamy. 
Judge   Waddoups   then   clarified   that   the   reason   that   he   found   no   "fundamental   right"   to   de   jure   polygamy   was   "substantively   on   Due   Process   grounds   based   on   a   Glucksberg   analysis   rather   than   based   on   the   type   of   'social   harm'   implied   in   Reynolds   under   that   decision's   narrow   Free   Exercise   analysis."     In   other   words,   in   this   unexpectedly   positive   and   serendipitous   explanation,   Judge   Waddoups'   Decision   to   still   deny   an   existence   of   a   "fundamental   right"   to   de   jure   polygamy   was   overtly   explained   that   it   was   not   based   on   any   maligning   assertions   of   a   supposed   "harm   to   society"   from   polygamy.      
Thereby   rejecting   the   anti-polygamists'   assertion   that   polygamy   causes   any   supposed   "harm   to   society,"   the   Judge   then   proceeded   to   effectively   de-criminalize   de   facto   polygamy. 
On   Page   25   of   Judge   Waddoups'   Decision,   Utah's   1973   bigamy   statute   at   issue   was   originally   codified   as   follows:   "[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."     Judge   Waddoups   struck   down   the   last   five   words,   which   he   identified   as   the   "cohabits   prong." 
In   his   analysis,   Waddoups   recognized   that   cohabitation   outside   of   polygamy   is   never   otherwise   prosecuted   as   a   crime   in   modern   society.     His   analysis   observed   the   "commonplace   occurrence   of   adulterous   cohabitation   in   contemporary   society"   and   "the   complete   lack   of   prosecution   for   adultery   or   fornication."   (Page   65.)       He   observed   that   the   "cohabits   prong"   was   only   used   as   a   government   tool   to   re-define   religious   de   facto   polygamists   as   being   officially   "married"   when   government   did   not   equally   re-define   other   unlicensed   persons   as   "married"   for   any   other   crimes,   to   exploit   for   prosecutorial   "fishing"   investigations   for   other   not-yet-determined   charges,   and   to   trump   up   additional   sentence-lengths   after   other   actually-convicted   crimes. 
Consequently,   the   Decision   declared,   "Because   the   cohabitation   prong   of   the   Statute   is   not   operationally   neutral   or   generally   applicable,   it   must   be   'justified   by   a   compelling   governmental   interest'   and   'narrowly   tailored   to   advance   that   interest.'"   (Page   65.)     "For   all   of   these   reasons,   the   cohabitation   prong   of   the   Statute   cannot   survive   strict   scrutiny   and   must   be   stricken   as   a   facial   violation   of   the   free   exercise   of   religion   under   the   First   Amendment."   (Page   71.)     It   further   added,   "the   cohabitation   prong   of   the   Statute   cannot   withstand   heightened   scrutiny   as   to   any   compelling   state   interest   and   must   be   stricken   when   reviewed   against   that   standard."   (Page   73.) 
The   Judge   next   realized,   "striking   the   cohabitation   prong   does   not   end   the   court's   analysis   because   the   phrase   'purports   to   marry   another   person'   becomes   similarly   problematic."   (Page   79.) 
To   solve   that   problem,   the   Decision   defined,   "the   'purports   to   marry'   prong   should   be   interpreted   'as   referring   to   an   individual's   claim   of   entry   into   a   legal   union   recognized   by   the   state   as   marriage.   The   phrase   does   not   encompass   an   individual's   entry   into   a   religious   union   where   there   has   been   no   attempt   to   elicit   the   state's   recognition   of   marital   status   or   to   procure   the   attendant   benefits   of   this   status   under   the   law,   and   where   neither   party   to   the   union   believed   it   to   have   legal   import.'"   (Page   87.) 
Finalizing   the   definition   of   the   "purports   prong,"   the   Decision   specified,   "under   this   narrowing   construction,   the   Statute   remains   in   force,   submitting   anyone   residing   in   Utah,   knowing   he   has   a   wife   or   she   has   a   husband   or   knowing   the   other   person   has   a   husband   or   wife,   to   prosecution   for   the   crime   of   bigamy   for   entering   into   any   further   purportedly   legal   union."     (Page   90.) 
Having   struck   down   the   "cohabits   prong"   as   unconstitutional,   and   having   limited   the   "purports   prong"   (and   the   term,   "marry")   to   only   legally   licensed   marriage,   Judge   Waddoups   concluded,   "The   court   finds   the   cohabitation   prong   of   the   Statute   unconstitutional   on   numerous   grounds   and   strikes   it.   As   a   result,   and   to   save   the   Statute,   the   court   adopts   the   interpretation   of   "marry"   and   "purports   to   marry,"   and   the   resulting   narrowing   construction   of   the   Statute,   offered   by   the   dissent   in   State   of   Utah   v.   Holm,   2006   UT   31,   ¶¶   131-53,   137   P.3d   726,   758-66,   thus   allowing   the   Statute   to   remain   in   force   as   prohibiting   bigamy   in   the   literal   sense   -   the   fraudulent   or   otherwise   impermissible   possession   of   two   purportedly   valid   marriage   licenses   for   the   purpose   of   entering   into   more   than   one   purportedly   legal   marriage."   (Pages   90-91.) 
As   the   Judge   had   previously   explained,   "Stated   succinctly,   the   one   and   only   factor   that   is   officially   indicative   of   marriage   is   the   marriage   license   which   must   be   present   before   any   kind   of   solemnization   ritual   has   legal   effect   creating   a   marriage,   and   fraudulently   obtaining   more   than   one   license   constitutes   bigamy."   (Page   58.) 
If   choosing   to   appeal   this   Decision,   the   Utah   Attorney   General   has   until   January   16,   2014,   to   file   it   in   the   federal   Court   of   Appeals   for   the   Tenth   Circuit   in   Denver,   Colorado.     Whoever   loses   in   that   subsequent   appeals   court   may   then   bring   a   final   appeal   to   the   Supreme   Court   of   the   United   States   (SCOTUS). 
Ergo,   for   every   irresponsible   media   trying   to   "scare"   their   audiences   about   this   "Friday   the   13th"   Decision,   the   facts   show   that   there   is   nothing   to   fear.       Brown   v.   Buhman   did   not   "legalize   polygamy."     Marriage   in   Utah   can   only   be   legally   defined   by   actual   government   marriage   licenses.     De   jure   polygamy   is   still   a   crime.     Only   de   facto   polygamy   is   de-criminalized.     And,   unfortunately,   whether   on   appeal   or   by   SCOTUS,   the   case   could   still   be   overturned,   wiping   out   the   possible   precedent. 
But   unless   or   until   that   happens,   both   the   Brown   family   and   other   unrelated   consenting   adult   polygamists   in   Utah   can   breathe   a   little   more   easily.     For   now,   de   facto   polygamy   has   been   de-criminalized. 


Bibliographic URLs:

Brown v. Buhman, 12/13/13 
Judge Waddoups' judgment officially ordered, 12/17/13 
De jure vs. De facto
[Reviewed for publication - Review Board.]

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