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Reason Foundation

Kody Brown and His Four "Wives"

Do anti-polygamy laws violate the Constitution?

Steve Chapman
July 14, 2011

When it comes to sexual relationships and cohabitation among consenting adults, Utah takes a permissive approach. If a guy wants to shack up with a lady, that's fine. If he wants to shack up with several, no problem. He can father children by different roommates, with no fear of the law.

But if he marries one woman and represents three others as his "spiritual wives," like Kody Brown? Then he's committed a felony. Not because of the stuff that goes on behind closed doors. It's the public act of claiming to be part of a lifelong "plural marriage" that raises the specter of jail.

This came as a surprise to Brown, a "fundamentalist Mormon" whose sect, unlike the Church of Jesus Christ of Latter-day Saints, practices polygamy. Despite the legal ban, prosecutions for polygamy are extremely rare.

Before appearing in a TV reality show called Sister Wives, Brown was told by authorities he was in no danger of prosecution as long as he wasn't doing anything else illegal, such as consorting with underage girls. But when the show hit the air, prosecutors opened a criminal investigation.

So Brown went to court claiming that his constitutional rights have been violated in various ways. Though it may come as a surprise to hear, he's got a perfectly reasonable argument.

Brown and his lawyer, George Washington University professor Jonathan Turley, don't say the state must sanction such arrangements in law. Nor did Brown try to get multiple marriage licenses, in defiance of the state ban on polygamy.

His case is about freedom, not state recognition. Unlike gay couples who say they should be allowed to legally wed, Brown isn't asking the state to officially accommodate his chosen form of matrimony. He's just asking to be let the hell alone.

Other people, after all, are exempt from such control. Turley says Brown and his women "would not be prosecuted if they claimed no religious obligation and merely had casual or purely sexual associations."

He notes, "Monogamists are allowed an infinite number of sexual partners, and consequently have the right to bear children with multiple partners, so long as they do not claim to be committed to such partners in a union or family."

The law doesn't prevent any man from living with several women, having sex with them, and siring their offspring. This behavior is a problem only when a man claims to be permanently wedded to the women—only, that is, when he behaves more responsibly than a tomcat.

Utah may limit legal marriage to one man and one woman (or, if it chose, two people of the same sex). It also has the right to punish the abuses that may accompany polygamy, such as rape, incest, and welfare fraud. But it's hard to see where it gets the authority to dictate what words individuals may use for their relationships.

If Fred and I want to say we're cousins—assuming we're not trying to defraud someone—no prosecutor will bother us. If I refer to Sally as my aunt, despite the lack of family ties, the law is majestically indifferent. When Brown and his boos present themselves as husband and wives, though, he's applying for a prison cell.

In challenging the law, they can cite implicit support from the Supreme Court. In a 2003 decision striking down a Texas ban on homosexual sodomy, Justice Anthony Kennedy granted a wide berth to intimate relationships.

Anti-sodomy laws are unconstitutional, Kennedy said, because they interfere with "the most private human conduct, sexual behavior, and in the most private of places, the home," in order "to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

The same logic applies perfectly to Brown's plural "marriage." The state presumes to dictate how he represents his relations with consenting adult women, imposing harsh penalties if he does not comply.

If Brown wants to live with five women and call them his girlfriends, his shorties, his harem, the Seattle Storm, or the 101st Airborne, it is of no earthly concern to the rest of us. And if he wants to call them his wives, the state of Utah should say, "Knock yourself out, dude." That, or nothing.

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