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A Look at the Sister Wives Ruling with an Attorney for the Browns.

In his office, Adam Alba has a picture of early Mormon Apostle George Q. Cannon wearing a black and white stripe prison uniform in the 1890s. In the picture, Cannon is sitting with other prominent Mormons of the day who, like Cannon, were imprisoned for violating anti-polygamy laws.

John Walton Price, James C. Hamilton, Guard, George Q. Cannon (seated), Guard, Charles Nookes and A. J. Hansen in the Utah Penitentiary, 1888. (Source: http://www.stayfamily.org/showmedia.php?mediaID=247)

A Mormon himself, Alba, the co-counsel for the legal team representing the Brown family of Sister Wives fame in their legal battle with the state of Utah, reflected in an interview with Approaching Justice about the Brown v. Buhman ruling handed down last Friday.

Much has changed when it comes to the relationship between Utah and polygamy. 120 years ago, Utah was marginalized and abused because of polygamy. Today, Utah, in an attempt to distance itself from that polygamist, marginalizes polygamists. This irony, noted Alba, was acknowledged in the ruling by U.S District Judge Clark Waddoups.

The Ruling

Alba explained that the ruling was made on two grounds.

First, the free exercise clause of the First Amendment which guarantees the free exercise of religion. Polygamy, as practiced in Utah and surrounding areas, is primary practiced by Mormon fundamentalist groups for religious reasons.

Second, the due process clause of the Fourteenth Amendment was applied to the Utah bigamy law. The Utah bigamy law criminalized not only bigamy (having multiple marriage licenses), but also the co-habitation of a married couple with other adults. Since, this element of the bigamy laws was only being used by Utah to prosecute religious polygamists (and was worded to specifically include polygamist within the statute), it was found to be in violation of both the 1st Amendment and the 14th Amendment.

This reasoning, particularly this application of the due process clause of the Fourteenth Amendment followed the application of the due process clause in the 2003 Lawrence v. Texas Supreme Court decision, Alba said.

In Lawrence v. Texas, the Supreme Court ruled that sodomy laws violated the due process clause because they where only used to target homosexuals as a group. In Friday’s ruling, it was ruled that Utah was using the co-habitation element of the bigamy law as a means of prosecuting a specific group, rather than as a means of banning cohabitation as a practice.

“This is just the de-criminalizing religious co-habitation,” added Alba. He noted that one still cannot get a marriage license that will allow one to have multiple wives. In this way, Alba noted that this case legally has much more in common with the Lawrence decision which struck down sodomy laws than it does more recent same-sex marriage rulings.

This case “…bolsters the privacy notion we have of consenting adults and their intimate relations,” Alba said.

The Brown Family: Janelle, Christine, Kody, Meri, and Robyn. (Source: TLC)

In the case of Kody Brown, he is only married to his first wife Meri. In the legal sense, Kody is only co-habitating with Janelle, Christine, and Robyn. However, in a religious and spiritual sense, they view themselves as being married. While Brown is still not legally married to Janelle, Christine, and Robin, their relationship can no longer be treated as a criminal act in Utah because of this ruling.

What is next?

The state of Utah will have 30 days to either ask Judge Waddoups to reconsider or to appeal to the Tenth Circuit Court of Appeals, Alba said. Given that the 91 page ruling was a “pretty thorough decision,” as Alba put it, it would seem most likely that the Tenth Circuit would be the focus of the state’s next move.

The Utah Attorney General’s office will make that call and with the recent resignation of Utah Attorney General John Swallow, it is not clear what the office intends to do in this case. College of William and Mary law professor Nate Oman has told Approaching Justice that Utah will likely appeal.

Alba is a full-time attorney with the Salt Lake Public Defender Association. He worked on the Brown’s legal team on a pro bono basis.

Adam Alba (left) with Jonathan Turley. (source: George Washington Today)

A graduate of the The George Washington University Law School, Alba had taken a class while there from Professor Jonathan Turley. When he found out that Turley was representing the Brown’s in this case, he volunteered to assist.

Turley was the lead counsel for the Brown’s team and Alba credits Turley, and the merits of their case, with the victory that was announced last Friday.

Click on this link for all coverage and commentary at Approaching Justice related to the Sister Wives ruling.

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Comments

  1. These people should be able to marry! marriage is about love !

    • Monimonika says:

      What happens if the husband and other wives agree to add another wife but one of the wives disagrees? Is the one who is disagreeing able to veto the love of the others? Or is that one wife’s wishes pushed aside (where’s the love)?

  2. pagansister says:

    I personally cannot understand “sharing” a man with any other woman, much less 3 or more women. In this case the “family” is making a bundle of money because they are a TV “reality” show, thus getting paid to expose this arrangement to the world. If this were not the case, would Kody Brown be able to support his 4 wives and 17 children? (no I do not watch the show). Are the women working outside the home or being good little home makers, and baby makers?

    • If I recall correctly, at least two of the wives work full-time outside of the home. The religious group that they associate with has a range of successful business ventures from what I remember. Kody has been married to Meri, Christine, and Janelle for over a decade. So they lived this way prior to the show.

      • pagansister says:

        Glad they were self-supporting before the reality show. Though, as I mentioned above, I couldn’t share my husband of 49 years with 1 never mind 3 other women. To each his/her own. Plural wives are considered normal in many countries, but I don’t know that this country is ready for it. . 🙂

  3. I don’t know why women allow themselves to be treated like this by men, but hey, whatever. I don’t think it should be against the law. It just would be nice to see a woman who has multiple husbands for a change. Now that would be a reality show!

  4. I hope their marriage is recognized legally. There is no reason why it shouldn’t be if we really stand for marriage equality. What are your thoughts Chris?

    • I support gay marriage on the grounds that stable monogamous relationships should be supported by the state. I have never been been moved by “marriage equality” as a principle in and of itself. That said, I do not see the Browns and others calling for legally recognized polygamy, though that might change someday. Instead, they want the state to stop harassing them. That is very simple and reasonable request.

    • Monimonika says:

      The problem is that the way marriage regulations are currently written cannot handle the logistics of such marriages. Ask yourself, if A & B are married, and C & D are married, when A marries C, is B automatically considered married to C? To D? If A, C, and D all agree to marriage with each other, but B does not, can they form a marriage of A & C & D and have B only married to A?

      Now enter divorce/inheritance proceedings… with children. Can B claim for a greater portion (or all) of A (deceased)’s property than C and D, since B does not recognize C & D as relatives?

      Strangely, I can see the custody dispute over children being handled okay, since the courts already handle convoluted cases involving more than two parents/guardians. It’s the question of how polygamous marriages should be defined in order to give all the spouses (whether male or female) equal rights to either agree to or not be forced to marry who they choose.

      For same-sex marriage, the problems were mostly solved beforehand when equal rights for both genders within opposite-sex marriages made it pointless to have to define who is the “wife” and who is the “husband”. Add in the non-requirement of marriages having to produce biological children and we are left with the easy solution of just changing some wording in marriage laws via find-and-replace.

      • Monimonika says:

        Just to add, I used the term “biological children” because I wanted to make a subtle note about how those people making the anti same-sex marriage argument about the “natural result of opposite-sex marriages” tend to ignorantly sh*t all over the existence of adopted non-biological children.

  5. For me, this is firmly in the “none of my business” field. If they are happy in their relationship, I’m happy for them. If they aren’t happy, they know where the exits are. I certainly don’t consider it to be ideal for their kids, but few households are ideal. Mine isn’t, I know. The household I grew up in was not, and my sister and I came out fine. For the most part, I think the state should allow adults to live however they wish, as long as there is no deliberate harm done.

    • I agree, I even knew one man who had a relationship with his pet dog. He was happy and not hurting anyone else. It’s cool with me too…

  6. Y. A. Warren says:

    We tend to forget that the legal institution of “marriage” was to assign financial and other responsibility to the vulnerable, especially children and their mothers. This was to stabilize society. The marriage of religion and politics has blurred this reality. Clergy should never have been given the right to form the legal partnerships of domestic and family responsibility.

    My understanding of polygamy in the Book of Mormon is that men who had excess financial resources were granted the privilege of taking on responsibility for more than one family. In recent times, it seems that those who have become publicly polygamous have taken on women to bear children that we taxpayers would support.

    We must do everything in our power to stop religions from exempting themselves from the laws of our land.

    • “My understanding of polygamy in the Book of Mormon is that men who had excess financial resources were granted the privilege of taking on responsibility for more than one family.”

      That is for sure not in the Book of Mormon. As far as I am aware, it is also not in any other Mormon scripture.

      “We must do everything in our power to stop religions from exempting themselves from the laws of our land.”

      First Amendment is a bitch like that.

      • Y. A. Warren says:

        The Book of Mormon and Polygamy

        Criticism

        Critics use the Book of Jacob to show that the Book of Mormoncondemns the practice of polygamy:

        24 Behold, David and Solomon truly had many wives and concubines, which thing was abominable before me, saith the Lord. 25 Wherefore, thus saith the Lord, I have led this people forth out of the land of Jerusalem, by the power of mine arm, that I might raise up unto me a righteous branch from the fruit of the loins of Joseph. 26 Wherefore, I the Lord God will not suffer that this people shall do like unto them of old. 27 Wherefore, my brethren, hear me, and hearken to the word of the Lord: For there shall not any man among you have save it be one wife; and concubines he shall have none; 28 For I, the Lord God, delight in the chastity of women. And whoredoms are an abomination before me; thus saith the Lord of Hosts. 29 Wherefore, this people shall keep my commandments, saith the Lord of Hosts, or cursed be the land for their sakes (Jacob 2:24-29).

        Critics go on to claim that Joseph Smith ignored this restriction by introducing the doctrine of plural marriage.

        Source(s) of the criticism

        Peter Bartley, Mormonism: The Prophet, the Book, and the Cult(Dublin: Veritas, 1989), 88.

        Response

        Critics generally refrain from citing the very next verse:

        30 For if I will, saith the Lord of Hosts, raise up seed unto me, I will command my people; otherwise they shall hearken unto these things (Jacob 2:30 ).

        The Book of Mormon makes it clear that the Lord may, under some circumstances, command the practice of plural marriage:

        Jacob 2:30 is the key verse for understanding why Mormonsbelieve that Joseph Smith, Brigham Young, and other nineteenth-century Mormons were justified in their practice of polygamy, but that this is the exception to the Lord’s law, not the rule…. Mormons believe that the period when polygamy was publicly sanctioned (1852–1890)—and the longer period in which it was privately approved (the early 1830s to 1904)—were exceptions to God’s basic law that Jacob spelled out in verse 27.[1]

        Conclusion

        The Book of Mormon endorses monogamy as the proper lifestyle, unless God commands his people otherwise. It is understood, as the Lord Himself explains it, that the reason the Lord sometimes commands plural marriage is to “raise up seed unto Himself.”

        Endnotes

        [back] Jana Riess, The Book of Mormon: Selections Annotated & Explained (Woodstock, VT: Skylight Paths Publishing, 2005), 82.

        • Yeah, I have read the Book of Mormon. Still, no reference to “excess financial resources” as a pre-condition for polygamy. Keep trying.

        • Y. A. Warren says:

          I will continue to search for the place where I think I saw that.

          Meanwhile, i object to being forced to support any children that I didn’t choose to assist in creating and commit to supporting from cradle to grave, as is the reality of supporting human life.

        • Y. A. Warren says:

          Statistics show that most of the men who practiced polygamy in Utah were among the wealthier members of Mormon society. Supporting multiple households required a certain amount of cold, hard cash, so Church leaders were more likely to approve the marriages of men who could support additional wives. (Plural wives, though, often came from economically disadvantaged backgrounds, and plural marriage to a well-established man helped them move up the social ladder.)

          -from Understanding Polygamy in Mormon History
          By Jana Riess and Christopher Kimball Bigelow from Mormonism For Dummies

  7. This is the correct decision from the court, I’m surprised the judge had the courage to do it. The man is only married to one person. Until you can stop everyone else from sleeping together and making babies, no body should be singled out. The only solution I can think of is to criminalize having babies out of we’d lock. But then we’d have to arrest the blessed mother.

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