Solving Utah's polygamy puzzle

The Browns, the Mormon stars of the TLC reality show “Sister Wives,” seem like a nice enough family. The patriarch, Kody, is an advertising salesman. His four wives struggle with issues that are familiar to many American women — their weight, their kids (17 in total), starting a business, buying houses, preparing for uncertain futures. In the three years that the show has chronicled their lives, it has succeeded in underscoring that polygamy is not that different; that four women sharing a husband is not that misogynistic; and that grown women should be permitted to choose such an arrangement, if they please. On the show, the Browns have argued that it is no one else’s business if they want to live together and call themselves married. (Brown is legally married only to his first wife; he has so-called spiritual unions with the other three.) Indeed, the easy, if fake, intimacy of reality television makes dysfunction seem familiar and then asks why it should not be considered normal and, ultimately, lawful.

Clark Waddoups, the federal judge who presided over Brown v. Buhman, the Browns’ lawsuit attacking the constitutionality of Utah’s anti-bigamy statute, seems to have suffered from similar conundrums. On Dec. 13, Waddoups ruled a key part of the Utah statute criminalizing polygamy unconstitutional, thereby allowing multispouse families to live together legally, provided they do not obtain multiple marriage licenses. But he struggled and grasped in his 91-page opinion: He discarded an existing definition of marriage defined by Utah courts; borrowed arguments from Edward Said’s "Orientalism"; and mixed up two entirely different issues, that of polygamy and same-sex marriage.

The Utah anti-bigamy statute originally stated: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Waddoups upheld the bigamy provision, but deemed unconstitutional the portion that said “or cohabits with another person.”

That portion of the law, Waddoups concluded, conflicted with the Free Exercise Clause of the First Amendment of the U.S. Constitution because it was not operationally neutral toward religion. Furthermore, he ruled, the Utah law violated the Due Process clauses of the Fifth and 14th Amendments. Citing Lawrence v. Texas, the 2003 case that struck down laws against sodomy, the opinion holds that the law violated the principle of “consensual sexual privacy” and was also void for “vagueness” in that it did not satisfy the constitutional “strict scrutiny” test applicable to such restrictions on the behavior of private citizens. In other words, if the Browns want to live together and if Kody Brown is legally married to only one of his wives, the state of Utah cannot stop or prosecute him. 

The change is significant. First, Reynolds v. United States, an 1897 Supreme Court decision that upheld an anti-bigamy law, was decided not on the grounds of a citizen’s privacy interest but, rather, on the question of whether constitutional provisions on the freedom of religion permitted members to violate the law on the basis of their faith. In that case, which also had a Mormon plaintiff, the court decided that such a violation of law was not permitted by the Free Exercise Clause. In a delicate dance around this existing precedent, the new decision in Brown retains bigamy as a criminal violation but protects from prosecution the act of living together and pretending to be married to a second or third spouse when one is already married to a first. With his ruling, Waddoups thus sticks polygamists in the same bucket as gay couples living in states where same-sex marriage is not allowed, and positions them as advocates of a more flexible understanding of marriage.

Here is why such conflation is wrong. To begin, there is absolutely no legal bar, in any territory of the United States, that prevents couples, polygamous or polyamorous or polygynous, from living together in any constellation of partners. A man can live with one or two or 10 women, and so can any woman. The anti-bigamy law in Utah comes into operation when the man in question lives with one woman and marries her, and then cohabits with a second, third or even 10th woman, and tells them that they are also his “wives.” What the Browns were asking of the court, then, was not the freedom to live together and do what they want in their homes, but also — and specifically — that Kody Brown be able to call each woman his “wife.”

The unarticulated problem — which the show, with the four Brown wives parading their persons and positions to the world, effectively elides — is that an operative, mainstream definition of marriage (which, for the most part, involves two partners) is being utilized by the man at the center to suggest that second and third wives will essentially be entering into unions that have the same status as the original first marriage. In this sense, the state’s interests in refusing to allow the second and third and 10th marriages to be called as much is to prevent those entering unions with already committed partners from being duped and defrauded into believing that these relationships are of the same type as monogamous marriages.

Whereas same-sex marriage is a recognized legal status in some states, polygamists seek to use the label of marriage so that they may, within their polygamous communities, package formally equal relationships that in reality cannot be equal in the familiar jargon of something that sounds equal. In pretending that a polygamous marriage is four separate marriages only incidentally featuring the same man, the women entering it imagine the possibility of parity where none can exist. Hence, the inherent inequality of a hub-and-spoke model (which, let’s face it, largely places the man at its celestial center) can be happily ignored.

Thus, the compelling state interest in denying the use of the marriage label to polygamists — even endearing ones like Kody Brown — is the prevention of this fraud. What polygamists seek is not the possibility of unconventional pairings, but rather the use of a label that defrauds potential partners into imagining parity. It is a clever disaggregation of a group into separate pairs that hide their inherent asymmetry, seem innocuous and hence also appear acceptable. In the case of same-sex marriage, objections often centered on morality and its constrictions. Polygamy, instead, tests a society’s commitment to equality and its willingness to enshrine it in the laws of the polity.