Scrutinizing Polygamy: Utah's Brown v. Buhman and British Columbia's Reference Re: Section 293

• Publication year: 2015

Scrutinizing Polygamy: Utah's Brown v. Buhman and British Columbia's Reference re: Section 293

Maura I. Strassberg

SCRUTINIZING POLYGAMY: UTAH'S BROWN V. BUHMAN AND BRITISH COLUMBIA'S REFERENCE RE: SECTION 293

Maura I. Strassberg^*

ABSTRACT

In Brown v. Buhman, the recent challenge to the Utah law criminalizing polygamy brought by the stars of the reality television show Sister Wives, a federal district court determined both that strict scrutiny was required and that strict scrutiny could not be satisfied. A significant factor in this result was the state's failure to mount a strong defense of the law, assuming that it could rely on long standing polygamy precedents such as the United States Supreme Court decision in Reynolds v. United States and more recent Tenth Circuit and Utah Supreme Court decisions to justify limiting scrutiny to rational basis and to provide legitimate reasons for the criminalization of polygamy. However, the State could have taken advantage of a then just released Canadian opinion, Reference re: Section 293 of the Criminal Code of Canada (Reference), to explain the real and expansive harms of polygamy. The Reference court undertook an exhaustive examination of the impact of polygamy on women, on children, on men, and on society, utilizing empirical evidence, expert reports, personal anecdotes, and a wide range of "Brandeis Brief" materials. This Article argues that the broad range of social and individual harms of polygamy identified in Reference provide a compelling state interest sufficient to withstand the strict scrutiny deemed necessary by Brown.

The Article also argues that the Utah statute cannot properly be understood to be a "religious gerrymander" requiring strict scrutiny. The Brown court's determination that the Utah statute only targeted religiously motivated polygamy was based on its improper segregation of the statute's coverage of licensed bigamy and polygamy, which the court acknowledged covered both religiously and nonreligiously motivated marriages, from the statute's coverage of unlicensed ceremonial polygamous marriages and

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polygamous marital cohabitation, which the court saw as only religiously motivated. The Article goes on to show that the real target of the Utah statute are the multiple marital relationships present in all polygamy and not the religious motivation for polygamy undeniably present in much of the actual Mormon Fundamentalist polygamy practiced in Utah. The Article additionally argues that the heightened scrutiny called for by the Brown court under the Smith hybrid analysis is also not justified.

Finally, the Article briefly considers how a statute that only criminalizes religiously motivated polygamy might be justified, based on the way in which polygamous religious communities funnel teenage girls into polygamous marriages by ensuring that they never have the chance to develop sufficient autonomy to truly choose for themselves, not unlike the way the Amish in Yoder sought to limit their children's education to prevent them from having either the desire or ability to live anything but an agrarian life. This Article suggests that confronting the autonomy-destroying impact of religiously motivated practices, such as polygamy, might force reconsideration of both Yoder and the limits of free exercise.

Introduction............................................................................................1817

I. What are the Harms of Polygamy?..........................................1821

A. The Harms Identified in Reynolds, Potter, Green, and Holm .. 1821

1. Harm to Society................................................................. 1823
2. Despotic Government........................................................ 1825
3. Maintaining the Network of Laws Governing Monogamy 1828
4. Marriage Fraud................................................................. 1830
5. Misuse of Government Benefits......................................... 1831
6. Protecting Women and Children from Abuse.................... 1831

B. The Harms Identified in the British Columbia Reference ....... 1834

1. The Cruel Arithmetic of Polygamy.................................... 1836
2. Harm to Polygynous Wives and Women in General ......... 1837
3. Harm to Children of Polygynous Families........................ 1838
4. General Social Harms ....................................................... 1839
5. Scrutiny of the Infringements to Liberty and Freedom of Religion ............................................................................. 1841
6. Summary ............................................................................ 1842

II. Neither Strict nor Heightened Scrutiny of the Utah Bigamy Law Was Justified in Brown..........................................1843

A. Strict Scrutiny of Polygamy Law Under Hialeah's Free Exercise Analysis..................................................................... 1844

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1. Federal Precursors to the Utah Statute............................. 1844
2. History and State Interpretation of Utah's Current Bigamy Statute................................................................... 1845
3. Hialeah .............................................................................. 1849
4. Free Exercise Challenges to the Utah Bigamy Statute Before Brown .................................................................... 1851
5. Brown's Hialeah Analysis of the Utah Bigamy Statute ..... 1852

a. Divide and Conquer.................................................... 1853
b. Cohabitation is Cohabitation ..................................... 1855
c. Purports to Marry....................................................... 1860
d. Selective and Minimal Prosecution ............................ 1863

B. Heightened Scrutiny Under Smith's Hybrid Rights Analysis .. 1867

III. Criminalization of Polygamy Can Survive Strict Scrutiny ......................................................................................... 1869

A. Would the Utah Bigamy Statute Be Viewed as Narrowly Tailored? ................................................................................. 1870
B. Religious Polygamy Has Its Own Unique Harms.................... 1871

Conclusion................................................................................................ 1876

Introduction

The constitutionality of criminalizing¹ polygamy was once an easy decision for the courts. In 1879, the United States Supreme Court confined its substantive discussion of polygamy to two paragraphs in Reynolds v. United States,² and the Court has never seriously reconsidered the conclusions it reached.³ However, modern readers of Reynolds find the Court's conclusory and vague claims about the negative effects of polygamy on social order and political organization⁴ unconvincing and tainted by the Court's disparaging association of polygamy with "Asiatic and . . . African people."⁵ As same-sex

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relationships have become decriminalized⁶ and legally recognized,⁷ many have also found it difficult to understand why and how polygamy could continue to be criminalized. With the ground appearing to shift under what had previously been unquestioned rejection of polygamy, two recent major court decisions have tackled the issue head-on and have come out on opposite sides of the question.

In Canada, the British Columbia Supreme Court, addressing a constitutional reference to the court by the government of British Columbia, upheld the continued criminalization of polygamy under the Canadian Charter of Rights and Freedoms (Charter).⁸ The trial in Reference re: Section 293 of the Criminal Code of Canada (Reference), under Canadian law,⁹ was able to be brought in the absence of a "case or controversy."¹⁰ It involved forty-two days of hearings,¹¹ ninety affidavits and expert reports,¹² and "Brandeis Brief materials . . . . compris[ing] several hundred legal and social science articles, books and DVDs."¹³ Under Canadian law, limits on a right protected by the Charter must be justified by a purpose that is "pressing and substantial."¹⁴ As such, a large part of the decision in Reference was concerned with identifying the harms of polygamy and determining whether they were pressing and substantial.¹⁵ In 2011, the court issued a comprehensive 228-page opinion setting out the psychological, sociological, and political impacts of polygamy, finding that this was an objective that was pressing and substantial¹⁶ and

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concluding that the law was consistent with the Charter, despite the way in which it infringed upon liberty and freedom of religion.¹⁷

In the United States, in a case brought by the reality Tv stars of Sister Wives, Kody Brown and his four wives (Meri, Janelle, Christine, and Robyn) and litigated by Professor Jonathan Turley of George Washington University Law School, the United States District Court for the District of Utah found Utah's criminalization of polygamy unconstitutional.¹⁸ Brown v. Buhman was decided on summary judgment based on twenty-two undisputed facts¹⁹ with the State failing to submit any admissible evidence on the social harms of polygamy and largely failing to substantively oppose the constitutional claims.²⁰ In its long and complex 2013 opinion in Brown, the Utah federal court held that parts of Utah's criminal bigamy statute²¹ failed to pass either strict, heightened, or rational basis scrutiny.²² The court upheld the statute insofar as it prohibited multiple legal marriages but struck down the statute's application to a practice of polygamy that involved multiple religious marriages for which legal recognition was not sought.²³

Although the focus of this Article is not on the comparative advantages or disadvantages of a constitutional reference versus a case or controversy approach, it is notable that the presence of an adversarial "case" in Brown failed to produce the expected full exploration of the issues; it was not...