This story was first reported in the N.Y. Times article released online yesterday, 12/14/13 titled: A Utah Law Prohibiting Polygamy Is Weakened.
I started to dig into the 91 page decision, which is a scholarly convoluted, document, but wanted it posted here, even if prematurely. As I got into the decision, I looked at the Time's article and realized it was potentially misleading, and could result in conveying the wrong message echoed in the hundreds of sites that will not read the decision, but have variations of the Times report. Here's the Time's lead:
Judge Clark Waddoups of United States District Court in Utah ruled late Friday that part of the state’s law prohibiting “cohabitation” — the language used in the law to restrict polygamous relationships — violates the First Amendment guarantee of free exercise of religion, as well as constitutional due process. He left standing the state’s ability to prohibit multiple marriages “in the literal sense” of having two or more valid marriage licenses.
This decision not only "leaves standing," but requires that Utah adhere to the "irrevocable clause" of their Constitution that states on pg 83: ......Polygamous or Plural marriages are forever prohibited." This means more than the Times' only denying multiple "marriage licenses" but prohibiting any of the rights and immunities thereof. This decision, at the core, simply revised the state law to make clear that "cohabitation may no longer be restricted to those who are married to each other."
If the N.Y. Times can be slightly off in their interpretation, how much more can this be exaggerated by other media, as was the case in the widespread international reporting of the legality of a certain solitary sex act when performed in public in Sweden-clarified here long after millions had been given the wrong story.
As of now, Sunday morning, we can examine the degree of contagion of erroneous reporting by looking at the list of article when searching this subject, Utah court weakens polygamy law. There are hundreds of websites that have simply repeated the Times Headline, and rather surprisingly, only one conservatives site, The National Review, pointing out the distortion that I posted yesterday, when only the Times article was on the internet. It is surprising since there were some conservatives who predicted that marriage equality would lead to a slippery slope that included rampant polygamy-and were Time's story accurate it would have been confirmation of this prediction
The main thrust of this decision is not to move closer to making plural marriages equal to traditional two person legally defined relationships, which now includes those of different genders in fifteen states. Rather, It reinforces the reality of the implicit zone of privacy that has been accepted as part of our constitutional rights, so that whatever a group of people choose to willingly engage in shall not be questioned by any government for the actions themselves.
The concept of "morality" can be considered that consensual value system that provides order and structure to a society, and thus can be the basis for laws that define such appropriate behavior. This creates an inherent tension between individual freedom, and the right of a democratic society to codify it's its cultural norms. The other issue that was carefully considered is how far a given religious practice should have immunity from such normative creating laws. From my brief reading of this section, while it was considered, it was dismissed as not dispositive in this case. (see addendum for the contribution of this issue to the decision)
Judge Clark Waddoups provided a rather comprehensive history of not only the jurisprudence but also Mormon-Utah history. On page 51 he describes how during the territorial era of Utah, Common law marriage did lead to the statutory relationship, something that was ended during statehood, so he concludes:
Though “cohabitation” might arguably have been a necessary addition to nineteenth century federal anti-polygamy legislation in light of this historical context, its inclusion in the Statute effects a constitutional violation under the Free Exercise Clause, as analyzed in Hialeah.
What this decision seems to confirm is that multiple individuals of any combination of genders may engage in consensual activities, and if they want to call it marriage they may do so, but that this does not confer any of the rights of marriage on such groups. In fact the recent conviction of
Warren Jeffs illustrates that existing laws defining rape, both statutory and otherwise, are still in effect, as Jeffs was not convicted on this now modified law, but on statutory rape because one of his "wives" was a minor.
So, Polygamy has not been legalized, nor does this decision seem to create a path for this to happen. What it does is to acknowledge just how much our country, and the Western world has expanded the scope of individual freedom of behavior. This decision could be viewed as advancing legitimacy of plural marriage, which has had the effect of leaving many young men living a life alone. Monogamy means that no matter how powerful a man may be, he only gets to spend his life with one women--in theory at least. Cultural norms such as promotion of monogamy, do have a value, even if they can't be articulated. This decision, once the details are explored, was a rational correction that this Judge took the effort to truly expand on it's limited application, while seeing the necessity to correct it to reflect current values. In his words:
(Courts have) developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices, though such legislatures may sincerely believe that such criminal sanctions are in the best interest of society. The court has concluded that this would not be the legally or morally responsible approach in this case given the current contours of the constitutional protections at issue
---------------------
Addendum: The following is a legal analysis of this very complex decision from the website of a UCLA law professor, Eugene Volokh, called
The Volokh Conspiricy I quote from the article by Orin Kerr:
......so here’s the reasoning of the court’s opinion, at least as far as I can tell. First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion. It is a phrase in the statute that has been used to target religious minorities that are polygamists, the judge reasons. The phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny.
My note: This is the troublesome part. If a religion dogmatically mandated genital mutilation (male or female) it implies that the mere assemblage of a group with implements of the surgery could not be criminalized, since it would be targeted at the specific religious group. But this reasoning was not necessary in this case due to other precedences below. A reminder, a district court decision such as this, unlike appellate courts do not constitute precedent
The phrase also violates Due Process under Lawrence because it violates the principle of “consensual sexual privacy,” and that it is also void for vagueness. (I don’t know where the judge gets the idea that individual words or phrases are evaluated for their constitutionality, as compared to laws, but that’s an assumption the judge makes throughout the opinion.)