- The Washington Times - Tuesday, December 17, 2013

A federal judge’s ruling in a Utah polygamy case has released a flood of “I told you so” reactions from traditional-marriage supporters, who have fought — often in vain — to formally define marriage as the union of one man and one woman.

“Some times I hate it when what I predict comes true,” tweeted former Republican presidential candidate Rick Santorum, who has predicted polygamy as one of many logical outcomes of the legal strategies and arguments used to support same-sex marriage.

“Well, that slope didn’t take long to turn slippery,” Rod Dreher wrote in an American Conservative article titled “Utah & Polygamy: We Told You So.”

Our warnings about legalized polygamy were not fearmongering, said Autumn Leva, director of governmental affairs for Minnesota for Marriage, which fought in vain for voter approval of a constitutional marriage amendment last year.

“We said that if you redefine marriage to be just an emotional bond between consenting adults, then any consenting adults can make that argument [for a right to marry] — even for multiple marriages,” Ms. Leva said.

“We knew those arguments would be used” to overturn anti-polygamy laws, she said. “It was only a matter of time.”

Others said the slippery-slopers are wrong and U.S. District Judge Clark Waddoups’ Dec. 13 ruling in the case of “Sister Wives” reality-show stars Kody Brown and his four “wives” has nothing to do with same-sex marriage.

Yes, the Supreme Court’s ruling in Lawrence v. Texas, which overturned an anti-sodomy law, “led” to Judge Waddoups’ decision, “but not because it was a victory for gay rights,” Zack Ford wrote on ThinkProgress in an article titled “No, the Court Victory for Polygamy Has Nothing to do With Marriage Equality.”

The Lawrence ruling said government “cannot intrude on what happens in adults’ bedrooms as long as it’s consensual,” Mr. Ford wrote. That means the private, consensual relations of people — including those in “multiple marriages” — cannot be criminalized.

But this has “very little to do with the gay community,” Mr. Ford wrote. In fact, he said, gays are seeking something different from polygamous families. Same-sex families want equality under the law regardless of whether a religious ceremony is involved.

“Conversely, polygamists are not currently fighting for legal recognition, but for the right to freely practice their religious beliefs without facing criminal prosecution,” Mr. Ford wrote. Thus, it’s religious liberty — not “the slippery slope of same-sex marriage” — that is operating here.

Rob Boston, communications director for Americans United for Separation of Church and State, also dismissed the idea that Judge Waddoups’ ruling is an “assault on marriage” or “inevitable consequence” of the Supreme Court’s June rulings that paved the way for same-sex marriage to be recognized under federal law and in California.

Judge Waddoups “robustly” applied the First Amendment’s freedom of religion clause in his ruling, and it’s “not a terribly controversial idea” to say that “government has no business meddling in the types of personal relationships people choose to form,” Mr. Boston wrote.

Maybe, he added pointedly, the reason conservatives “seem less than thrilled this time” is because “the religion in question isn’t their own.”

The next steps for the ruling in Brown v. Buhman are not immediately clear, although an appeal is expected.

Utah Gov. Gary Richard Herbert, a Republican, said the 91-page decision is being reviewed and that he always is concerned when courts change public policy.

The Utah law, written in 1973, says that a “person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

Judge Waddoups ruled that the words “or cohabits with another person” violated the Browns’ constitutional rights under the free-exercise clause of the First Amendment and did not have a rational basis under the due process clause of the 14th Amendment. The ruling thus decriminalized “religious cohabitation” — a term preferred by Judge Waddoups — while keeping the law’s prohibition of having more than one legal spouse.

Mr. Brown and his polygamous family are members of the Apostolic United Brethren, a religion derived in the 19th century when Mormons practiced polygamy.

The Church of Jesus Christ of Latter-day Saints issued a statement repeating that its members do not practice polygamy and that Mormons have no affiliation with the AUB.

Mr. Brown lives with Meri Brown, Janelle Brown, Christine Brown, Robyn Sullvan and their 17 children, but is legally married only to Meri Brown. They do not seek multiple marriage licenses.

The Browns, represented by Washington lawyer Jonathan Turley and others, sued Utah County Attorney Jeffrey Buhman in 2011, saying the family was investigated after the first episode of “Sister Wives” aired on TLC Network.

In its defense, the state agreed that it denounced the Brown family but did not prosecute them. Mr. Buhman later said he would not prosecute the Browns unless he found that they “also committed a collateral crime.”

The Browns sued for relief from the law. Mr. Turley said he would be honored to defend the family in the 10th U.S. Circuit Court of Appeals and even to the Supreme Court, if necessary.

State Sen. Lyle Hillyard told The Washington Times this week that he did not know what Utah lawmakers will do about the ruling when they return in January.

One option is “not do anything,” Mr. Hillyard said, noting that lawmakers have not repealed other laws that are unenforced.

However, the Brown ruling is interesting because when Utah became a state in 1896, “one of the conditions Congress required in our Constitution is the forbidding of polygamy,” Mr. Hillyard said.

“Can a [federal] court now say, ‘Well, it’s part of your Constitution, and it’s a condition upon which you were adopted into statehood; now we’re going to say that’s no longer valid?’” he asked.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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