Written by Don Byrd
A lawsuit brought by the star of the reality television show “Sister Wives” challenging Utah’s anti-bigamy received a surprising victory Friday. A federal judge in Utah struck down as unconstitutional a provision in the law that prohibits cohabitation with another person while married. That portion of the state’s anti-bigamy statute, Judge Clark Waddoups said, is beingimproperly applied to target religious cohabitants in violation of the Free Exercise clause of the U.S. Constitution.
The U.S. Supreme Court has clearly established that laws barring bigamy are constitutional, and not a violation of religious freedom. Here however, the judge reasoned (91-page pdf), the issue is not polygamy but the state’s discrimination in applying its cohabitation laws.
Given the fact that all prosecutions under the Statute’s cohabitation prong (as opposed to straightforward bigamy with multiple marriage licenses) have been of those cohabiting for religious reasons underscores that, in practice, the law is not operationally neutral under Hialeah. The State’s argument reveals that the object of the Statute “is to infringe upon or restrict practices because of their religious motivation.” This it may not do unless it is a narrowly tailored means of advancing a compelling state interest.
Importantly, this ruling still would leave in place the law’s ban on polygamous marriage, but strikes the phrase “or cohabits with another person.” Professor Orin Kerr notes the interesting logical gymnastics involved in this decision. SCOTUSblog’s Lyle Deniston called the ruling “historic.” We may yet see what the Appeals Court thinks.
