Legal challenge: Salt Lake City lawyer Brian Barnard says the ban is unconstitutional
Until 1963, interracial marriages were illegal in Utah. Residents who suffered chronic epileptic seizures and were not sterilized also were barred from marrying in the state.
And, until 1993, anyone who had syphilis, gonorrhea or HIV could not make that walk down the aisle.
Now, in 2005, three Utahns who want to unite as husband, wife and wife say their preferred form of marriage also should be allowed.
They are asking the 10th U.S. Circuit Court of Appeals to reverse a federal judge’s rejection of their challenge to state prohibitions against bigamy and polygamy.
“The fact [that] much of American legal culture is based on monogamy does not justify a ban on polygamy,” their attorney, Brian Barnard, of Salt Lake City, wrote in a brief filed this month with the Denver-based appeals court.
Barnard argued that a 2003 U.S. Supreme Court decision striking down a Texas law that prohibited sexual conduct between same-sex couples “provides individuals with protection from state intrusion as to intimate relationships.”
On Dec. 22, 2003, G. Lee Cook tried to obtain a marriage license from the Salt Lake County Clerk’s Office to wed a woman, identified in court papers as J. Bronson. Cook’s legal wife was identified as D. Cook. G. Lee Cook wrote on the application that he already was married and told clerks that he wanted to legally marry a second wife. The clerks refused to issue a marriage license and refunded a $50 fee.
The three – who are all more than 45 years old and say polygamous marriage is a requirement for their exaltation and eternal salvation – filed suit in federal court against the clerks. The legal action seeks to overturn an 1879 decision by the U.S. Supreme Court, Reynolds v. United States, that upheld Utah’s ban on polygamy.
In February, U.S. District Judge Ted Stewart rejected the argument that the prohibition on polygamy is an unconstitutional violation of religious and privacy rights and ruled that the state has an interest in protecting monogamous marriage.
Stewart also ruled that even the 2003 opinion in Lawrence v. Texas over the sodomy law did not grant a right to plural marriage, noting that the laws against bigamy and polygamy do not preclude private sexual conduct.
Under Utah law, Barnard says, married people living in a sexual relationship with someone who is not their spouse is guilty of bigamy, and deceit or a second marriage ceremony are not required elements of the crime. But although that provision makes it illegal for a married man to live with a girlfriend before his divorce is final, the law has been used to target polygamists, he contends.
There is no compelling governmental interest that makes the prohibition against religious polygamy constitutional, he argues in the brief.
Utah also officially abandoned plural marriage, in part, lawyers for the state say, because of social problems associated with polygamy; the exploitation of women and girls; and the encouragement of responsible procreation.
Barnard counters that the state does not regulate exploitative relationships between other couples, and if there were a compelling reason to promote responsible procreation, Utah would step into all family situations. Yet, there are no sanctions against an unwed mother who rears children alone, and there is no statute barring parents from divorcing and raising their children in separate households.
“The state does not restrict nor ban ‘serial polygamists,’ individuals who repeatedly marry, conceive children and divorce a series of spouses.”
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