The widespread exposure of the reality show “Sister Wives” brought to the fore the complicated constitutional issues surrounding polygamy. The dilemmas the sister wives faced since only one marriage is legally recognized presented complications at many levels of their family life. As Cody Brown, the male head of the household, faced charges under Utah’s polygamy statute, the TLC audiences watched heartache, tears, and multiple legal questions unanswered. Sister Wives ultimately made it clear that there is a valid question as to whether there is a fundamental right to plural marriage. The Browns moved to Nevada, but the questions about polygamy in Utah remain essential.
Clients sometimes ask about the legal pitfalls of polygamy. One of the most significant risks for people in polygamous marriages is that if someone commits another crime, the charges brought can include bigamy as well. There are many problems and concerns that individuals in plural marriages face daily. Anyone who watched a couple of Sister Wives episodes could see that legal issues regarding their marital status were challenging, costly, confusing, and sometimes even frightening. Call (801) 758-2287 to schedule a consultation with experienced Salt Lake City polygamy defense attorney Darwin Overson if you are facing questions about this issue.
What is Polygamy?
Polygamy is the practice of having more than one spouse at the same time. This practice is illegal across the United States – Utah included – yet tens of thousands are still living in such communities and continue to fight for their rights to do so. In the late 1800s, the Fundamentalist Church of Jesus Christ of Latter-day Saints (FDLS) made polygamy, or plural marriage, a part of its doctrine. FDLS is a fundamentalist branch of the Mormon church. Widespread opposition throughout the U.S. led to the official end of the practice in 1890. However, several Mormon groups, including FDLS, continue to live by this practice to this day.
Utah has a complicated relationship with polygamy. There has been a ban on polygamy since Utah became a state. Historically, law-abiding individuals in polygamous relationships weren’t harassed or arrested; if the marriage didn’t involve underage girls or abuse, the husband would most often be left alone. However, state officials introduced stricter laws in Utah in the last few years to break up such families. Polygamous families argue that these laws violate their right to privacy and religious freedom.
Utah Polygamy Lawsuit: Sister Wives’ Brown v. Bowman
The decision of the Sister Wives came during the case of Brown v. Bowman. The basis for the decision focuses on the legal concept of “mootness.” A moot issue exists when courts deem that there is no right at stake—rendering a legal analysis hypothetical. The Browns were not under the threat of prosecution under Utah’s anti-polygamy statute and had moved to Nevada; therefore, the court didn’t consider that there was a prescient threat of injury warranting full judicial review of the polygamy question. The practical effect of the focus on mootness is that the constitutional issues at the heart of the matter are not analyzed.
Even though there was no precedent set in the decision of Brown v. Bowman, the Sisters Wives show has opened the channels of conversation regarding the enormous prejudices against plural marriage. One of the most unsettling concerns some of my clients face is the anti-polygamist views some Utah officials have expressed, including the fear that they can be perceived to be “sexual offenders.”
In one example, Parker Douglas of the Utah Attorney General’s Office asserted, “If there is somebody under the guise of a polygamous marriage or a sham polygamous community who are engaged in sex trafficking and human trafficking… we think that’s probably a higher-grade felony.”
Is There a Constitutional Right to Polygamy?
Everyone expected the Sisters Wives case to go all the way to the U.S. Supreme Court after the 2015 Supreme Court decision Obergefell v. Hodges gave indications that there can be a recognition of polygamy as a fundamental right. The constitutional analysis in the ruling of Obergefell v. Hodges showed the changing views about the institution of marriage, noting that different understandings of marriage have “become characteristic of new dimensions of freedom.” This language opens the door to changing the views about polygamy that have existed for centuries.
In the decision of Obergefell v. Hodges, the U.S. Supreme Court held that same-sex couples have a fundamental right to marry under the U.S. Constitution. In the dissenting opinion, Justice Roberts directly addressed the question regarding the definition of marriage as a union of two people only. As he noted, the adjective “two” is used, but it offers “no reason at all why the two-person element at the core definition of marriage may be preserved while the man-woman aspects may not.”
The U.S. Supreme Court didn’t grant review of the Brown v. Bowman decision. However, that rejection doesn’t mean there is an answer to the question regarding whether there is a fundamental right to polygamy.
Are There Criminal Penalties for Polygamy in Utah?
According to Utah Law, polygamy or bigamy is a crime. Polygamy is considered a third degree felony in the state. This means you could potentially spend a long time in prison (up to 5 years) and pay hefty fines (up to $5,000). In addition to the harsh penalties you could face for committing bigamy, other criminal charges could stem from multi-marriage lifestyles.
There have been several polygamy cases which the government worked to resolve with severe legal repercussions. One of the most notorious Utah polygamy cases was the trial of Mormon fundamentalist Thomas Green. The Utah Mormon was charged with serious felonies. The prosecution alleged Mr. Green married several teenage girls and then divorced them to commit welfare fraud. He was also accused of child rape for sustaining sexual relations with an underage wife (13 years old) who gave birth to one of Mr. Green’s many children. At the end of his trial, the defendant was sentenced to years in prison but was later released on parole.
Many bigamists utilize a “marry and divorce” strategy to avoid criminal prosecution. To avoid criminal charges, a man marries a woman. After she takes her husband’s name, the couple proceeds to divorce, creating the opportunity for the man to legally marry again. This way, a man can build up a big family with several partners – who share the same surname – without fear of breaking the law. Even if you elect to try a strategy like this, you could still run into legal trouble for fraud or other crimes, so it is important to work with a Salt Lake City criminal defense attorney on your case to ensure you do not run afoul of other laws.
Polygamists must always be aware of all potential legal consequences. While not all polygamists arrange marriages with underage girls, some do violate these laws and could face charges of sexual abuse of a minor. Under Utah law, unlawful sexual activity with a minor is a serious criminal offense. According to Utah Code § 76-5-401, engaging in sexual activity with a minor is considered a third degree felony. Not only will you face years in prison and high fines, but you could also be registered as a sex offender.
While bigamy is a crime in Utah, there may be ways to fight the charges against you. Talk to an attorney about defense strategies for your case.
Utah Polygamy Laws Today
The aftermath of the legal issues the Sister Wives faced in Utah led to changes in its anti-polygamy statute, increasing the penalty from 5 to 10 years in prison. Despite the polygamy ban, such marriages often exist through a legal loophole. The law allows a single legal union with one of the wives. Polygamous couples obtain a marriage license issued by the state for one marriage, while the other marriages are merely spiritual.
Whenever a statute is widely defined, there is wide discretion for the government officials bringing the charges; the language of the new statute provides a broad definition of bigamy. There is a gray area in the new law because spiritual marriages can be considered a crime, whereas it isn’t a crime to live together under one roof.
Under Section 6-7-101 of the Utah Criminal Code, the crime of bigamy occurs when, “knowing the other person has a husband or wife or knowing the other person has a husband or wife, the person purports to marry and cohabitates with the other person.”
Call Salt Lake City, UT Polygamy Defense Lawyer Darwin Overson Today
If you have been charged with a crime related to bigamy or polygamy, either individually or in connection to other charges, contact our Salt Lake City criminal defense attorneys at (801) 758-2287.