Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “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.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

Rather, the case involved the unique part of the Utah statute, which defined “bigamy” to also include when X “cohabits with another person.” This criminalizes quite a lot of conduct which, these days, is pretty common. For example, X and A are civilly married. With A’s knowledge and consent, X spends some weekends at the home of his mistress, B, with whom he has sexual relations. Under the common law, this is the crime of adultery, and adultery is still a crime in some states. But as far as I know, no state other than Utah would describe such conduct as “bigamy.”

In the times we live in, there are all sorts of situations in which X + A are married, and one of them or both of them also cohabit with B. Utah currently disclaims any intention to prosecute X, A, or B. But Utah reserves the right to prosecute the three of them–and sometimes does–if and only if X+A+B claim to be married. This is not a claim made in the sense of marriage as recognized by the government. Prosecution can be based on a claim of marriage in the mere sense of saying “Under our personal value system, we consider the three of us to be married to each other.” Utah does not recognize common law marriage, so in Utah, just telling people that you are married cannot possibly confer the rights of civil marriage.

On pages 60-62 of the Brown opinion are excerpts from the Court’s questioning of the attorney defending the statute. Based on the attorney’s answers, if X+A are married, and they cohabit with B then C then D, there will be no prosecution.  (E.g., there’s no legal problem with having a transitory series of live-in mistresses.) Nor is there a legal problem if X says “I intend to be committed to this woman [B], I will take care of her and her children for as long as she lives.” But if X says that he will take care of B for as long as she lives because X and B consider themselves to be married, then that’s a crime.

To Judge Waddroup, this takes the case out of the Reynolds and Employment Division v. Smith (1990) rule that facially neutral statutes are not a Free Exercise violation, even if they interfere with the exercise of somebody’s religious beliefs. Rather, the case is now like Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (municipal ban on certain types of killing of animals was facially neutral, but was a First Amendment Free Exercise violation because it was aimed at Santeria religious ceremonies).

By policy, Utah rarely prosecutes persons who cohabitate for religious reasons, but Utah does reserve the discretion to do so when it wants. The Court finds a 14th Amendment Due Process violation here, based on a application of Lawrence v. Texas (states cannot criminalize oral or anal sex between consenting adults), the rational basis test, and other modern 14th Amendment doctrine. For example:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

One of the best ways to attract prosecutorial attention in Utah is to be a highly visible advocate for the plural lifestyle of one’s family. That is precisely what happened to the Browns, who are the subjects of the TLC reality TV series “Sister Wives.” (New season starts Dec. 29.) Going on national television week after week led to lots of government investigations of them, and to threats of prosecution which forced them to move from Utah to Nevada.

Lead counsel for the Browns was George Washington University Law Prof. Jonathan Turley. The GWU faculty lounge may soon see an interesting discussion about the case between Professors Kerr and Turley.

It would not be surprising if the case were appealed to the Tenth Circuit, and Judge Waddoup’s opinion seems careful to color within the lines of the Tenth Circuit’s cases interpreting (rather narrowly) the aforesaid modern Supreme Court cases. Should the Browns prevail in the 10th Circuit, the case seems a good candidate for the Supreme Court. The Tenth Circuit has several anti-polygamy decisions within the past few decades, and Judge Waddoups worked hard to distinguish them. Whether the 10th Circuit will consider the distinctions persuasive remains to be seen.

It is important to remember Brown v. Burnham in no way establishes a constitutional right to plural marriage. Nor does the Brown decision challenge ordinary state laws against adultery. Rather, the decision simply strikes down a unique state law which defined cohabitation as “bigamy.” Even then, the statute might have been upheld but for the government’s policy of reserving prosecutions solely for cohabitators who for religious reasons considered themselves to be married to each other under God’s laws, and who fully conceded that they were not married under the civil law of the state.