Utah has publicly announced that the state will not prosecute consenting adult polygamy unless there are other crimes involved, but argues that the law against polygamy is constitutional.
“It is not protected under religious freedom because states have the right to regulate marriage,” said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff (R).
Utah County Attorney Jeff Buhman (R) in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, claiming the Browns no longer have standing since they aren’t subject to prosecution.
But the judge in the Browns case appeared reluctant to drop the case, worrying that the state was trying to avoid the constitutional issue.
U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was “simply a ruse to avoid having the issue reviewed.”
“What’s the policy reason behind this … that would give assurances that similar prosecutions will not be pursued in the future?” Waddoups asked. “What about the next couple?”
The lawsuit by the Browns does not challenge Utah’s authority to refuse to grant or recognize multiple marriage licenses, only the part of the law that makes it illegal to even purport to be married to multiple partners. The Browns argue that private intimate relationships between consenting adults are constitutionally protected, and they may have a point.
In Lawrence v. Texas the Supreme Court struck down Texas’s sodomy ban, reasoning that intimate sexual relationships are protected by the liberty interest guaranteed by the 14th Amendment. Justice Anthony Kennedy, writing for the majority, ruled that “the State cannot demean [Lawrence and Garner's] existence or control their destiny by making their private sexual conduct a crime.” Kennedy continued “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Kennedy also rejected the idea that a history of moral condemnation of homosexual conduct could overcome the constitutional protection, ruling that the majority can not use the state to impose its moral views on sexuality on society as a whole through the operation of criminal law.
As long as polygamous couples aren’t asking for legal recognition of multiple marriage licenses, the same reasoning applied in Lawrence appears to extend to consensual adult polygamous relationships. If same sex couples’ freedom to define personal relationships in the privacy of their homes is constitutionally protected, there is no reason that polygamous couples who also wish to privately define their relationships to each other should not be. And if society’s views on the immorality of homosexual conduct cannot support a ban on sodomy, there is no reason for society’s views on the immorality of polygamy to support a ban on purporting to be married to more than one person.