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.
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.
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.
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.
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.