Utah’s Options in the Wake of Judge Waddoups’ Polygamy Ruling
We are pleased by the ruling issued by a federal court judge on Friday to invalidate a key portion of Utah’s anti-polygamy law. Specifically, polygamists are no longer considered felons in Utah for “purporting to marry” and “cohabit” with one another. Pointing to the First Amendment’s free exercise of religion clause, and the Fourteenth Amendment’s due process clause, Judge Waddoups struck down the anti-polygamist portion of Utah’s bigamy clause, leaving intact the portion regarding fraudulently obtaining multiple marriage licenses.
As indicated in our press release, picked up by the Associated Press and others, we view this opinion as a praiseworthy invalidation of an illegitimate law. Further, we recognize it as a welcome affirmation of the key principle that the government has no legitimate authority to punish the peaceful activities of consenting adults. Polygamists should not be deemed felons merely because they are polygamists.
The 91-page ruling is thoughtful and carefully constructed. At this point, the Utah Attorney General’s office has three options.
First, it can let the ruling stand and end their defense of the existing statute. Mark Shurtleff and John Swallow, both former Attorneys General, vowed to appeal a ruling such as Waddoups’. However, both are now out of office, and the Governor is expected to appoint a new Attorney General within the next couple of weeks. It appears that those in control of the office are not going to wait for the appointment and will soon be announcing whether they will appeal or not. We see this option (to let the ruling stand) as unlikely, given previous AG statements, no contradicting views expressed by those working in the AG’s office, and the “traditional marriage” undercurrent whereby conservative Utahns are worried that last week’s ruling is a “slippery slope” of sorts that may cause problems for the fight over same-sex marriage. In short, we believe that the state will be anxious to appeal and have Waddoups’ ruling overturned.
Second, the state can request a reconsideration before Judge Waddoups within 30 days. This option is also unlikely, as the ruling is quite thorough and appears to leave little wiggle room for other issues not already considered.
Third, the state can appeal the case to the Tenth Circuit Court of Appeals. This must also be done within 30 days of Friday’s ruling. This court comprises the districts in Colorado, Kansas, New Mexico, Utah, Wyoming, and Oklahoma.
To understand what’s at stake, consider the famous case of Lawrence v. Texas. This lawsuit dealt with a state statute in Texas criminalizing homosexual behavior. Had the ruling been left alone at lower levels its impact would not have been as substantial, but the Supreme Court’s hearing of, and ruling on, the case led to the invalidation of sodomy laws nationwide.
Similarly, the state’s appeal to the Tenth Circuit Court, and possibly later to the Supreme Court, can lead to a far greater impact than letting this ruling stand (and therefore only being applicable) in Utah. In that sense, and while they’re potentially cautious to risk Friday’s ruling being overturned, many polygamists may desire the state’s appeal to provide a forum in which to overturn anti-polygamy laws in other states as well.
Our interest is not in supporting or promoting polygamy; as for me personally, one wife is plenty. Rather, we object to unjust laws that portend to legally prohibit peaceful behavior. Accordingly, we are in agreement with Judge Waddoups arguing (on page 84) that it is “a worrisome proposition that a Constitution [may] stray from limiting government’s powers and protecting citizens’ rights to explicitly limiting the liberty of citizens.”
Last week’s ruling repeals the longstanding limitation on the liberty of polygamous citizens, and should therefore be applauded by all. Contrary to Governor Herbert’s comment on the ruling, majority rule should not be allowed to impose its preferences upon the minority at the expense of their liberty. If we desire “liberty and justice for all,” as we so often say in the Pledge of Allegiance, then we must of necessity welcome and support the invalidation of this law.