Trio asks 10th Circuit to overturn longtime Utah ban on the practice
The 10th U.S. Circuit Court of Appeals in Denver today will take up the case of three people suing for the right to become husband and wife — and wife.
Court briefs are due this morning in the case of Bronson vs. Swensen, a lawsuit that is challenging Utah’s ban on polygamy. It’s a case that has people who practice plural marriage hoping it will legalize their relationships.
“Eventually, we will have the right to live our religion,” said Laura Fuller, a member of the Davis County Cooperative Society, a fundamentalist community composed of members of the Kingston family. “A person should have the right to choose their mate, not the state.”
Fuller, who is also a law student, has followed the case closely. So have other members of polygamous communities.
“It will be interesting to see whether the court addresses the freedom of religion issue in this case or whether they keep it strictly within the bounds of civil rights for multiple marriage partners,” said Susie Timpson with the Centennial Park Action Committee, a pro-polygamy group in the border community of Centennial Park, Ariz.
“We will be watching and praying with interest,” she said in an e-mail Saturday to the Deseret Morning News.
In December 2003, three people identified in the lawsuit only as G. Lee Cook, D. Cook and J. Bronson went to the office of Salt Lake County Clerk Sherrie Swensen, asking for a marriage license.
The Cooks and Bronson paid $50 and completed the marriage application form, indicating that G. Lee Cook was legally married.
“He orally informed the defendants that he wanted to legally marry a second wife,” the lawsuit states.
After the clerk’s office denied the license because plural marriage in Utah is illegal, they sued — seeking only one dollar in damages and a change in Utah’s anti-polygamy laws.
The Utah Attorney General’s Office believes the lawsuit has no teeth.
“He sued a county clerk, claiming that what they’re afraid of is prosecution under our anti-bigamy law and the constitutional prohibition of plural marriage,” said Utah Solicitor General Annina Mitchell. “Sherrie Swensen has no ability to prosecute them for bigamy, even if she wanted to.”
Mitchell also claims there are court decisions by the U.S. Supreme Court and the 10th U.S. Circuit Court of Appeals that support Utah’s ban on polygamy.
“The state of Utah has a compelling interest in banning plural marriage,” she said.
Barnard contends Utah’s anti-polygamy laws violate his clients’ constitutionally protected freedom of religion rights. Court papers he filed with the 10th Circuit also cite the controversial U.S. Supreme Court decision of Lawrence vs. Texas, which decriminalized gay sex.
“‘Lawrence’ is the most recent in a line of Supreme Court cases that have increasingly cordoned off from state invasion a realm of individual privacy grounded in the First Amendment and protected as a Fourteenth Amendment ‘liberty’ interest,” Barnard wrote.
He claims Utah’s anti-polygamy laws stigmatize the Cooks and Bronson as criminals because of their religious-based choice of marriage.
“Although polygamy is not accepted by the majority of society, that is insufficient to ban it and make believers into criminals,” Barnard wrote.
As someone who lives in a plural community, Fuller said there is a danger of being prosecuted. She pointed to the recent court decisions upholding the criminal conviction of Rodney Holm, a police officer in the polygamous border town of Hildale, Utah.
Holm was convicted of marrying a teenage girl as his third wife. He is a member of the Fundamentalist LDS Church, whose leader, Warren Jeffs, is in jail after months on the FBI’s Ten Most Wanted list. Jeffs was arrested last month in a traffic stop outside Las Vegas.
Jeffs, 50, is scheduled to appear in 5th District Court in St. George on Wednesday to answer to a pair of charges of rape as an accomplice, a first-degree felony. He is accused of forcing a teenage girl into a polygamous marriage with an older man.
In the Bronson case, Barnard points out his clients are all over 50 years old.
“The issue is more squarely and nicely presented in our case. Consenting mature adults who want to practice what their religion tells them to do,” he said in an e-mail to the Deseret Morning News.
The case gives polygamists some hope.
Fuller believes the political winds are changing to a climate more suitable for people who believe — and live — plural marriage.
“I know it’s changing. Someday we will have the same rights as everyone else,” she said. “This civil rights movement is just in the beginning stages.”