(Don’t) Take My Wife . . . Please

The law and reality television sometimes collide in bizarre fashion, as in the recent case of “Sister Wives,” a reality show on the TLC network that follows the daily lives of avowed polygamist Kody Brown, his four “wives” and their 17 children. The Brown family originally resided in Utah, but fled to Nevada after Utah authorities saw the hit show and threatened to prosecute them under Utah’s anti-polygamy law.

Brown and his wives filed suit against the state of Utah, claiming that the law was unconstitutional. Last week, a federal judge agreed. While conceding that a polygamist could be prosecuted if he legally married more than one person, Brown doesn’t fit that description because he was legally married in Utah to only his first wife. The remaining wives are “spiritual wives,” who are recognized as wives only by their particular branch of Mormonism and not by the State.

The state tried to argue that merely holding out one’s self as being married is sufficient to violate the statute, but the judge’s 91-page decision examined at great length the inherent difficulties of that position. Obviously, people are free to cohabitate and live as they choose – and do so frequently even in conservative states such as Utah. For the state to prohibit cohabitation, ruled the judge, it would violate both the right to privacy and religious freedom under the First Amendment.

While very few Americans actually approve of polygamy, the Court recognized that its role was not to pass judgment on that notion, or – as The New York Times put it – “open a new frontier in the nation’s recognition of once-prohibited relationships.” The Court pressed the state to explain the difference between this situation and a permissible situation of cohabitation, which the state agreed it could not prohibit. Was it sex? Sex with someone to whom you are not married? Claiming a religious belief? Claiming marriage without a legal license? The State never really had a good explanation of where the line should or could be drawn.

Vagueness and selective application are very often fatal to criminal statutes. That’s not opening a new frontier. It’s upholding an established constitutional precedent.


Posted: 12/18/2013 6:29:21 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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