I’m no fan of the Utah federal court’s opinion striking down the Utah law criminalizing polygamy. But I do think that the law, at least as currently interpreted by Utah officials, is indeed unconstitutional. Here’s a brief sketch of my thinking.
1. The relevant statute 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.
It isn’t limited to attempts to fraudulently claim a legal status of marriage, whether the claims are made to the government, to one’s supposed spouse, or otherwise. “Cohabits,” in Utah law, means “to live together as husband and wife.” State v. Barlow, 153 P.2d 647 (Utah 1944). Moreover, the prosecutor in this case stated (pp. 59-60) that simply being in a long-term sexual relationship and living together isn’t sufficient. Neither is being in a sexual relationship in which a person who is already married to A says, “I’m committed to this woman [B], I’m going to take care of her for the rest of her life.”
What is necessary, according to the prosecutor, is that “there be a marriage of some sort,” even one that doesn’t purport to be legally valid. According to the prosecutor, “I think it’s the representation that they make to the world as to what is their relationship. If they make it as husband and wife, then that constitutes marriage under the statute.”
2. Utah law, then, isn’t a regulation of sexual conduct (which would raise interesting questions under Lawrence v. Texas). People are free to have sex with lots of other people, and live with all those people. What triggers criminal punishment is saying something to the world — “we’re married,” including “we’re married in the eyes of God” or “we’re married in our own eyes,” even when it’s clear to all that the marriage is not legally recognized. It is a restriction on speech, including a particular ritual that is usually a religious ritual.
The analogy, if you want one, to the debate about same-sex marriage would be this. Take a state that doesn’t recognize same-sex marriage, but that also doesn’t ban homosexual sex. (Given Lawrence, states can’t ban homosexual sex, but before Lawrence most states didn’t either.) Assume that the state also doesn’t ban promises of lifetime sexual commitments outside marriage. (To what extent the law may restrict promises, even legally unenforceable promises — such as cartel agreements, criminal conspiracies, and the like — is an interesting question, see pp. 1333-35 of this article, but it isn’t implicated here, given the Utah prosecutor’s statements that expressions of lifelong commitment that aren’t labeled “marriage” don’t suffice.)
But assume that it has a statute making it a crime to engage in same-sex marriage rituals, or to call your same-sex sexual partner your “wife” or “husband.” That, I think, would be seen as a speech restriction. The same would be so here.
3. And this speech restriction is unconstitutional. It restricts speech based on its content. The content is not within any First Amendment exception. And the restriction isn’t narrowly tailored to some compelling government interest. I think there are good reasons for the government not to recognize polygamous marriages, and all it would take is a nonfrivolous reason for the government to be entitled to make such a nonrecognition decision. But those reasons can’t suffice to outlaw speech.
Note that I’m not relying here on the Free Exercise Clause, only on the Free Speech Clause. It’s possible that this law was indeed targeted at religious polygamists, but I don’t think that should be necessary to the analysis. And I think that the fact that the prohibited behavior is overwhelmingly engaged in by religious people shouldn’t be dispositive; peyote bans, for instance, wouldn’t be unconstitutional even if it turned out that most or nearly all peyote users are using it for religious purposes.
What matters it that the prohibited behavior is speech, whether religious speech — going through a religious marriage ceremony — or nonreligious speech, such as going through a secular marriage ceremony or simply living with several people in a secular committed polyamorist household and calling them your spouses. Living together in a multi-person committed sexual relationship isn’t a crime in Utah. Doing so while saying “these are my wives” or saying wedding vows is a crime. That means that what the law is restricting is speech, not sex as such or living together as such.