The Sister Wives: Has Incest and Sexual Assault Become the New Reality? the United States District Court for the District of Utah Grants Polygamists the Holy Grail

• Publication year: 2022

48 Creighton L. Rev. 681. THE SISTER WIVES: HAS INCEST AND SEXUAL ASSAULT BECOME THE NEW REALITY? THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH GRANTS POLYGAMISTS THE HOLY GRAIL

THE SISTER WIVES: HAS INCEST AND SEXUAL ASSAULT BECOME THE NEW REALITY? THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH GRANTS POLYGAMISTS THE HOLY GRAIL

Kelly O. White - '15

I. INTRODUCTION

When the United States Supreme Court stated the Union has always considered polygamy an offense against society, it was reiterating Congress's intent that bigamy is a crime in all territories.(fn1) In Potter v. Murray City,(fn2) the United States Court of Appeals for the Tenth Circuit determined the Reynolds v. United States(fn3) decision prohibiting polygamy remains fully applicable today.(fn4) Since then, Utah courts have extended the prosecutions of bigamy to both religious and non-religious contexts.(fn5) The Utah Supreme Court explained that criminalizing the practice of plural marriage reduced the likelihood of crimes related to its practice, such as incest, sexual assault, statutory rape, and failure to pay child support.(fn6) Government investigations and modern testimonials indicate that both physical and sexual abuse commonly occur within polygamist communities due, in part, to its structure.(fn7) The Utah Supreme Court, in State v. Green(fn8) and State v. Holm,(fn9) upheld Utah's anti-bigamy statute(fn10) as constitutional on multiple grounds.(fn11) Under the statute, a person who has a husband or wife is guilty of bigamy when such person cohabits with or purports to marry another person.(fn12) A person is also guilty of bigamy under the statute if such person cohabits with, or purports to marry, another person who such person knows is married.(fn13)

In Brown v. Buhman,(fn14) the United States District Court for the District of Utah declined to follow the Utah Supreme Court.(fn15) The Brown court held the statute was unconstitutional under the Free Exercise Clause and Due Process Clause of the United States Constitution.(fn16) In Brown v. Herbert,(fn17) a polygamist group brought an action against a county attorney and the governor of Utah, challenging the constitutionality of the statute.(fn18) The polygamist group, commonly referred to as the Brown family, includes: Kody Brown, an avowed polygamist, his four wives, and his seventeen children (hereinafter the "Brown family").(fn19) As members of the Apostolic United Brethren Church, the Brown family considers polygamy a fundamental religious practice.(fn20) The Brown family argued the statute is unconstitutional, both facially and as applied to the Brown family.(fn21)

The district court broke its analysis of the statute into two parts: the cohabitation prong and purports to marry prong.(fn22) During its Free Exercise analysis, the court applied strict scrutiny, found the cohabitation prong unconstitutional and struck it from the statute.(fn23) The court also reasoned, under the Due Process Clause, that the cohabitation prong did not survive rational basis review under Lawrence v. Texas(fn24) and struck it.(fn25) Lastly, the court found the purports to marry prong to be overly broad, and thus, narrowed its construction.(fn26)

This Note will first review the facts and holding of Brown.(fn27) The Note will then discuss the district court's application of the Church ofthe Lukumi Babalu Aye, Inc. v. City of Hialeah(fn28) standard to the statute in its Free Exercise analysis and how it mistakenly applied strict scrutiny to the statute's cohabitation prong.(fn29) This Note will also assert that the district court erroneously applied the Lawrence reasoning in its Due Process analysis of the statute's cohabitation prong.(fn30) Lastly, this Note will demonstrate that the district court incorrectly interpreted the purports to marry prong and inappropriately failed to apply the statute to the Brown family.(fn31)

II. FACTS AND HOLDING

In Brown v. Buhman,(fn32) a polygamist family that participated in a television reality show, The Sister Wives, brought a civil rights complaint against the Utah County Attorney General, Jeffrey R. Buhman, seeking a declaration that Utah Code section 76-7-101 was unconstitutional.(fn33) Under the statute, a person who has a husband or wife is guilty of bigamy, a third degree felony, when such person cohabits with or purports to marry another person.(fn34) It is also considered bigamy if such person cohabits with or purports to marry another person that such person knows is married.(fn35)

The Brown family are members of the Apostolic United Brethren Church, a religious organization that believes polygamy is a core practice of its religion.(fn36) According to the Brown family, Kody Brown was legally married to Meri and spiritually married to Janelle, Robyn, and Christine.(fn37) After the Brown family admitted to being in a polygamist relationship on The Sister Wives, the Lehi City Police Department filed a report with Buhman, alleging the offense of bigamy in violation of the statute.(fn38) Buhman then watched commercials for The Sister Wives television show and publically stated that he had placed the Brown family under investigation.(fn39)

The Brown family filed a claim in the United States District Court for the District of Utah to challenge the statute, which bans and criminalizes polygamy, as unconstitutional and sought a preliminary injunction to prevent its enforcement.(fn40) First, the Brown family argued the statute violated the Free Exercise Clause, both on its face and as applied.(fn41) The Brown family contended there is no compelling state interest to support the statute.(fn42) Second, the Brown family argued the statute violates the Due Process Clause, both on its face and as applied.(fn43) In support, the Brown family claimed the statute criminalizes the private behavior of adults exercising their freedom, identifies consenting adults as criminals based on their private choices, and allows for selective prosecution of cohabitation.(fn44)

Buhman maintained the statute was constitutional based on three arguments.(fn45) First, Buhman argued that clear and binding precedent, which indicates that the government can criminalize polygamy, is the basis for Utah's statute.(fn46) Second, Buhman asserted the Constitution does not protect the practice of polygamy as a fundamental right.(fn47) Lastly, Buhman argued the State of Utah has a compelling interest in averting social harms.(fn48) Buhman supported his argument in favor of Utah's compelling interest by recounting stories of former members of the Apostolic United Brethren Church, of which the Brown family are members.(fn49) The stories explained that polygamist communities are rampant with the sexual and physical abuse of children and women.(fn50)

In its Free Exercise analysis, the district court found parts of the statute were unconstitutional, both facially and as applied, and struck the phrase "or cohabits with another person" as a violation of the First Amendment to the United States Constitution.(fn51) The district court followed the United States Supreme Court's holding in Employment Division, Department of Human Resources of Oregon v. Smith(fn52) as construed by Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,(fn53) which explained that even though the Brown family has a right of free exercise, they still must comply with a neutral and valid law that generally applies to religious practices.(fn54) If, however, a law is found not to be generally applicable or neutral and it burdens a religious practice, the court must apply strict scrutiny.(fn55) Under strict scrutiny, a law must be narrowly tailored to advance a compelling governmental interest, otherwise, the law will defy the Free Exercise Clause.(fn56)

Buhman argued the Utah Legislature has determined, based on documented abuse in polygamist communities, that polygamy is harmful to society and that the state should prohibit polygamy.(fn57) The court was unconvinced and reasoned adultery, including adulterous cohabitation, is not prosecuted, and conversely, religious cohabitation is prosecuted at the discretion of the state.(fn58) The court found no rational basis to distinguish between polygamy and adultery because the cohabitation of unmarried couples, who live as if they are married, is commonplace in contemporary society.(fn59) Most importantly, the court noted that adultery is generally not prosecuted and that adultery statutes are essentially moribund.(fn60) Thus, the court finally reasoned the cohabitation prong was not narrowly tailored to advance the state's interest in protecting the institution of marriage.(fn61)

Analyzing the Brown family's Due Process claim, the district court determined Seegmiller v. Laverkin City(fn62) was binding authority.(fn63) In Seegmiller, the United States Court of Appeals for the Tenth Circuit denied a substantive Due Process claim and asserted the Constitution does not protect a person's participation in private consensual sex.(fn64) In its substantive Due Process analysis, the district court also determined that religious cohabitation is not entitled to heightened scrutiny and further reasoned it could not ignore the Tenth Circuit's rationale, which stated there is not a sweeping right to sexual privacy.(fn65)

Although the district court was bound by Seegmiller in regard to the fundamental rights issue, the court reasoned Lawrence v. Texas(fn66) controlled...