Federal Court Strikes Down Polygamy Law In Utah

[andrew]

Couple of good articles discussing the case:

"Sister Wives": Will Reality Show Stars Face Prosecution for Polygamy in Utah? (http://writ.news.findlaw.com/grossman/20101004.html) is a piece from 2010 that attempts to predict the outcome if Utah decides to prosecute the Browns. Lays the ground work for the next piece (which also refers back to the prediction).

Kody’s Big Score in the Challenge to Polygamy Law (http://verdict.justia.com/2013/12/24/kodys-big-score-challenge-polygamy-laws) is the same authors reviewing the recent opinion.

 

[cnystrom]

It's a great decision and a great opinion, but until the reasoning and holding are adopted by the 5th Circuit (or the Brown case is ruled on by the Supremes), it's not binding in Texas. Still pretty good news, though, and still a pretty good pointer to where we're headed.

But Lawrence is, so I think they would be just as powerless to prosecute in Texas as they were in Utah, as the article in your (excellent) next post points out.

I think for all intents and purposes the prosecution of polygamy on its own is dead in the U.S. Any attempts now would just be wasting taxpayer resources and money.

 

[andrew]

Kind of an apples and oranges thing, here. Lawrence goes to the issue of who you can have sex with and what kind of sex you can have with that person. Brown is about who you can be married to, and what kind of 'married' you can be to that person. As intimately related as those two issues are (no pun intended), it's not the same thing.

The Texas bigamy statute doesn't use the word "cohabit" like the Utah statute does (or used to...), but it does use "purport to marry" and "under the appearance of being married", and Texas is an informal (or "common law") marriage state. So while under Lawrence a Texan can have sex (and any kind of sex) with anyone he or she wants to, you still can't live together and hold yourself out to the public as 'married' without taking a risk that you'll be prosecuted for bigamy. That risk is lower now thanks to Brown, maybe even neglible, but it's not zero.

One way to put it to the poly family in Texas is: Do you want to be the test case that will probably result in striking down the criminalization of religious cohabitation in Texas? If you're ready to take on the system like the Browns, then by all means step up. Otherwise it's probably a good idea to continue to keep a reasonably low profile and see what happens to Brown on appeal.

I wholly agree with this:

I think for all intents and purposes the prosecution of polygamy on its own is dead in the U.S. Any attempts now would just be wasting taxpayer resources and money.

In the grand scheme of things, the battle is all but won in the Brown opinion. The problem is the DA or AG that just doesn't get it, like those Japanese soldiers they kept finding on Pacific islands that didn't know Japan had surrendered. Just be careful that the DA in your district or the AG in your state is not one of those guys.