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Is polygamy the next constitutional right?

A judge recognized that there is such a thing, culturally and constitutionally, as “religious cohabitation.”

Lyle Denniston looks at the long-term implications of a federal court ruling in Utah that permits reality TV star Kody Brown to practice religious cohabitation with multiple women.

The statement at issue:

"This decision is fraught with both religious and historical significance for the state of Utah because it deals with the question of polygamy, an issue that played a central role in the state's development and that of its dominant religion, the Church of Jesus Christ of Latter Day Saints (or Mormon Church)….The state of Utah has no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue here; thus the cohabitation prong of the state's [1973 anti-polygamy] statute is facially unconstitutional….Consensual sexual privacy is the touchstone of the rational basis review analysis in this case."

 – U.S. District Court Judge Clark Waddoups of Salt Lake City, in a decision December 13 striking down the part of a Utah law that made it a crime to "cohabit with another person" if the partners in the relationship are not married to each other.  The ruling left intact a criminal ban on bigamy or polygamy, but barred its use to prosecute what the judge called "religious cohabitation.".

We checked the Constitution and...

Constitutional life sometimes imitates art, even if the "art" is a reality television series.  The program "Sister Wives" has brought to the attention of American TV listeners – no doubt, for the first time for many – what life is like in a religious family of one man and his several "wives" who collectively share an ongoing, intimate relationship as one household.

It is now a real possibility that the leading figure in that show, Kody Brown, a devout believer in the view that polygamy is one of God's commands to him, may help solidify a quite wide-ranging constitutional right to "consensual sexual privacy" outside of traditional marriage.  In other words, a right to cohabit – a fairly common practice, it seems, among many Americans, especially younger adults.

While that right does not exist fully, in the sense that the Supreme Court has explicitly established it, the court has been working for years to advance the idea that the private sexual lives of adults is worthy of at least some form of constitutional protection.  It did so, for example, in assuring a right to birth control measures for unmarried couples, thus allowing intimacy without conception, and it did so in barring enforcement of anti-sodomy laws against homosexuals who engage in intimate acts in private.

A federal judge in Salt Lake City has moved that trend a step further in a new decision in a case filed by realty TV personality Brown.  The decision barred the state of Utah from pursuing criminal charges against anyone in the state who engages in that kind of sexual privacy, in order to make sure that it is not enforced against those who engage in sex outside of marriage as a religious duty.   That is a right, the judge made clear, that protects Brown in his intimate relationship with his several spouses.  (Brown and his "wives," as he calls them, are not seeking to have a multiple marriage, in the full legal sense of marriage.  The family considers itself to be in a "marriage," but in a religious sense only.  They did not seek multiple marriage licenses, for example.)

Judge Clark Waddoups, it should be stressed, did not find in the Constitution a right to engage in polygamy, even if that is done out of a sense of religious obligation.  An 1879 Supreme Court decision, Reynolds v. U.S., allowing criminal punishment for polygamy, stood in the way of any such right, the judge found.   But the judge did raise questions about whether that decision remains sound in law, in the wake of the modern trend to expand constitutional rights, especially among minorities or those who live different lifestyles from the mainstream.

Instead, what his decision did was to recognize that there is such a thing, culturally and constitutionally, as "religious cohabitation," which he defined as living together as a matter of religious faith in an intimate relationship with multiple partners resembling a marriage, but not claiming to be married in a legal sense.  That is a minority religious practice that the Constitution protects from targeted criminal prosecution, the judge ruled.

On the way to that decision, Judge Waddoups wrote more broadly.  He relied upon Supreme Court rulings that do recognize the concept of adult sexual privacy, when no harm is done to vulnerable persons like children, in order to establish the principle that government may not outlaw such intimacy simply because the official thinking is that it is immoral.

Here was the path of his reasoning: cohabitation has become a quite common activity in American life, the Utah law makes that a crime for anyone engaging in it without being married, but the only individuals under threat of being charged with a crime are those who engage in that activity as a matter of their religious faith.   That is a form of discrimination that violates the concept of due process, the judge concluded.

The decision is thus a very specific victory for Kody Brown, or for other adherents of the belief in plural intimate unions, and the decision may well be challenged in an appeal by state officials who are hostile to polygamy and will see the rule as a promotion of that practice.

But, while Judge Waddoups' decision lasts, it is more than that: It is a significant victory for any individuals who choose to live their lives in intimate union with each other as a matter of simple personal preference, and it frees them to go on with the relationship because they pursue it without harm to others.

The decision in the case of Brown v. Buhman is another example of how constitutional rights grow from one specific situation to a broader cultural realm.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog.