Keeping 'I Do' Between Two: A Post-Obergefell Analysis of a Bigamous Marriage and Its Implications for Louisiana's Matrimonial Regime

Author:McLaurine H. Zentner
Position:J.D./D.C.L., 2018, Paul M. Hebert Law Center, Louisiana State University.
Pages:335-368
 
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Keeping “I Do” Between Two: A Post-Obergefell
Analysis of Bigamous Marriage and Its Implications
for Louisiana’s Matrimonial Regime
TABLE OF CONTENTS
Introduction .................................................................................. 336
I. Background and Progression Toward the Bigamy Debate ........... 338
A. Introduction to the Due Process and Equal
Protection Clauses ................................................................. 339
B. A Clausal Collision: The Ambiguities in Fourteenth
Amendment Jurisprudence .................................................... 341
1. The Right to Privacy ....................................................... 341
2. The Right to Marry .......................................................... 343
II. The Constitutional Conundrum of Plural Unions ......................... 346
A. Bigamy and Reynolds v. United States .................................. 346
B. The Problem with Louisiana’s Criminal Bigamy Statute ...... 347
C. The Question and Implications of Legalizing
Bigamous Unions................................................................... 348
1. Uncertainty After Obergefell .......................................... 349
2. The Potential Impact of Legalizing Bigamous Unions ... 350
III. Determining the Constitutional Scope of Marriage ..................... 351
A. Defining the Proper Scrutiny Standard .................................. 351
1. The Level of Scrutiny for Criminalizing
Bigamous Unions ............................................................ 352
2. The Level of Scrutiny for Denying Legal Recognition
to Bigamous Unions ........................................................ 354
a. Analysis Under Equal Protection .............................. 355
b. Analysis Under Due Process .................................... 357
B. Identifying a Justifiable Governmental Interest ..................... 361
1. The Conflict with Tax Law ............................................. 362
2. The Conflict with Community Property Law.................. 364
IV. Proposing a Doctrinal Solution .................................................... 365
Conclusion .................................................................................... 368
336 LOUISIANA LAW REVIEW [Vol. 78
INTRODUCTION
Meet Kody Brown, an advertising salesman living happily in Utah
with his four wives and 18 children.1 Apart from the fact that Kody has
multiple wives, the Browns are an otherwise normal family. They take
vacations, argue with one another, and share meals together at the end of
a long day. Unfortunately for the Browns, local authorities began
investigating them to determine whether they were in violation of the
state’s criminal bigamy laws.2 Fearing for their safety, Kody moved his
family to Nevada and filed suit against the state, claiming that the
investigation violated his family’s right to privacy. At trial, the lower court
ruled in favor of the Browns and struck down as unconstitutional the
portion of the state’s bigamy statute that criminally implicated Kody for
cohabiting3 with multiple wives.4 The appellate court, however, dismissed
the case and effectively reinstated the statute that criminalized Kody and
his family’s way of life.5
TLC’s popular television series Sister Wives,” which follows the
Browns’ lives, has entertained millions of viewers over the course of seven
seasons.6 What many viewers may not realize, however, are the legal issues
raised by the show’s plot. The Utah district court’s ruling in favor of the
Browns and striking down of the criminal portion of Utah’s bigamy statute
Copyright 2017, by MCLAURINE H. ZENTNER.
1. T he following hypothetical described herein is based on the factual
circumstances in the 2013 Utah state court decision of Brown v. Buhman. See
genera lly Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013).
2. UTAH CODE ANN. § 76-7-101 (West 2017); Bigamy, BLACKS LAW
DICTIONARY (10th ed. 2014) (“[Bigamy is] [t]he act of marrying one person while
legally married to another.”); see also Polygamy, BLACKS LAW DICTIONARY 1347
(defining polygamy as “[t]he state or practice of having more than one spouse
simultaneously”).
3. Coha bitation, BLACKS LAW DICTIONARY (“[Cohabitation is] [t]he fact,
state, or condition of living together, esp[ecially] as partners in life, usu[ally] with
the suggestion of sexual relations.”).
4. Brown, 947 F. Supp. 2d at 122223.
5. See Brown v. Buhman, 822 F.3d 1151, 1179 (10th Cir. 2016). The court
justified its dismissal of the case by concluding that because Utah prosecutors had a
policy of not pursuing most bigamy cases, the plaintiffs had no credible fear of future
prosecution and thus lacked standing. Id. at 1167; see also discussion infra Part II.A.
6. See Michael Rothman, “Sister Wives”: Everything You Need to Know About
Kody Brown and Family, ABC NEWS (Apr. 12, 2016), http://abcnews.go.com/Enter
tainment/kody-brown-sister-wives/story?id=38331357 (providing background of the
Brown family and discussing the purpose and plot of the show) [https://perma.cc
/HS38-9QVA].
2017] COMMENT 337
was vacated recently by the Tenth Circuit Court of Appeals on procedural
grounds.7 The Tenth Circuit’s decision, along with the recent United States
Supreme Court decision in Obergefell v. Hodges prohibiting states from
banning same-sex marriages,8 has intensified a new and controversial debate
concerning the legality of anti-bigamy laws. A central issue debated concerns
whether marriage should be restricted to relationships consisting of only two
individuals, thus denying marriage rights to individuals, such as Kody and
his family, who are in bigamous unions.
Perhaps the most controversial matter surrounding the constitutionality
of bigamous marriage is whether states should recognize the practice legally
and confer governmental benefits to individuals in these unions. A major
concern surrounding the legal recognition of bigamous marriage is the effect
such recognition would have on tax and community property lawstwo
areas of law shaped by the concept of marriage as a legal union between two
individuals. A United States Supreme Court decision requiring states to
recognize bigamous marriage as a legal institution would disrupt tax and
community property laws significantly throughout the United States.9 The
issue of bigamous marriage is particularly relevant to Louisiananot only
because Louisiana is a community property state10 but also because of
Louisiana’s criminal bigamy statute.11
Part I of this Comment provides background on the United States
Supreme Court’s recent expansion of individual rights and liberties and
the significant ambiguities surrounding the Supreme Court’s interpretation
of the Due Process and Equal Protection clauses of the Fourteenth
Amendment. Part II analyzes Louisiana’s criminal bigamy statute and the
issues surrounding the bigamous marriage debate generally. Part III
conducts a constitutional analysis of Louisiana’s criminal bigamy statute
and highlights the central issues the statute raises. Lastly, Part IV proposes
that the Louisiana Supreme Court, if confronted with the constitutionality
of Louisiana’s criminal bigamy statute, should decline to extend the
fundamental right to marry to bigamous unions under a rational basis
review. Instead, the Louisiana Supreme Court should hold the portion of
the statute criminalizing bigamous marriage unconstitutional in light of
7. Brown, 822 F.3d at 1179; see a lso discussion infra Part II.A.
8. Obergefell v. Ho dges, 135 S. Ct. 2584, 2607 (2015).
9. See Samuel D. Brunson, Taxing Polygamy, 91 WASH. U.L. REV. 113, 117 (2013).
10. See, e.g., LA. CIV. CODE art. 2338 (2017). The question of legally recognizing
bigamous marriage presents a significant challenge to community property states that
treat marriage as an institution consisting of only two people. See, e.g., Hadar Aviram
& Gwendolyn Leachman, The Future of Polyamorous Marria ge: Lessons from the
Marriage Equality Struggle, 38 HARV. J.L. & GENDER 269, 318 (2015).
11. LA. REV. STAT. § 14:76 (2017).

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