The Reasoning of the Utah Opinion Partially Striking Down and Rewriting the State’s Bigamy Law

In his post below, Eugene notes the new decision in Brown v. Buhman, involving Utah’s bigamy law. In the case, a group that considers polygamy a core part of its religious practice challenged a Utah law that states: “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.”

I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23). More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point. It’s definitely different.

But you don’t pay us the big bucks to skip over the legal goods, so here’s the reasoning of the court’s opinion, at least as far as I can tell. First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion. It is a phrase in the statute that has been used to target religious minorities that are polygamists, the judge reasons. The phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny. The phrase also violates Due Process under Lawrence because it violates the principle of “consensual sexual privacy,” and that it is also void for vagueness. (I don’t know where the judge gets the idea that individual words or phrases are evaluated for their constitutionality, as compared to laws, but that’s an assumption the judge makes throughout the opinion.)

Having stricken the phrase “or cohabits with another person” as an unconstitutional phrase on various grounds, the court is left with a statute that prohibits marrying another person when already married. The court is then left with a puzzle because the Utah Supreme Court has interpreted the word “marry” to mean not only state-sanction marriages, but also non-state sanctioned marriages. The federal court is bound by that interpretation. But with that interpretation, the court would have to also excise the phrase “purports to marry another person” as unconstitutional for the reasons that it excised the “or cohabits with another person” phrase. But the court can’t excise that phrase, as it would leave a statute that is linguistically meaningless. So instead the Court adopts the interpretation of the word “marry” from a dissent in the Utah Supreme Court that had wanted to interpret the phrase “marry” to mean only state-sanctioned marriages. As reconstructed, the statute now punishes a person who, “knowing he has a wife or she has a husband or knowing the other person has a husband or wife,” then enters into a purportedly state sanctioned marriage.

In other words, as reconstructed by the court, people who are married by the state already can’t get married a second time. But people who are already legally married are allowed to live with other people as if they are married to those other people, and to hold themselves out as being married to those other people, as long as they do not try to get married to those other people. At least, that’s what I think the court is saying. This isn’t an easy opinion to decipher.

Strange stuff. And perhaps the most remarkable aspect of the opinion, at least to me: The author of the opinion, Judge Clark Waddoups, is a 2008 appointee of President George W. Bush. And to bring in a VC connection, Waddoups was nominated to fill the vacancy created by the departure from the bench of our co-blogger Paul Cassell.