Now that I’ve vented about how poorly written the opinion in Brown v. Buhman is, I’ll offer some comments about its reasoning (pp. 52-62) that the cohabitation prong of Utah’s bigamy statute has been enforced in a discriminatory manner against “religious cohabitation.”
Some brief background: Utah’s bigamy statute states:
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. [Bracketed numbers added.]
The plaintiffs in Brown v. Buhman are Cody Brown and the four women he lives with—the “Sister Wives” of reality-show fame. Cody Brown has a recorded marriage license with only one of the four women. As I understand it, he entered into non-state-sanctioned “religious” marriages with the other three women. The plaintiffs sued to prevent Utah’s bigamy statute from being applied against them.
In last Friday’s opinion, federal district judge Clark Waddoups ruled that the cohabitation prong of the bigamy statute violates numerous constitutional guarantees, and he salvaged the “purports to marry” prong from supposed constitutional problems by narrowly construing it (contrary to the Utah supreme court’s own reading) to apply only to an effort to obtain a legally recognized marriage. In the celebratory words of plaintiffs’ counsel (and George Washington University law professor) Jonathan Turley, “To put it simply, polygamy is now lawful in Utah.” (The “now” that Turley refers to may well be only the narrow window between the ruling and the entry of a stay pending appeal.)
In my judgment, the most substantial of the grounds that Judge Waddoups offers against the cohabitation prong of the bigamy statute is that it has been enforced in a discriminatory manner against those engaged in “religious cohabitation”—those, that is, like plaintiffs, for whom polygamy is a religious practice. But I have two problems with Waddoups’ analysis.
First, I’m not convinced that Waddoups meaningfully demonstrates that the cohabitation prong has been discriminatorily enforced against religious cohabitation. Waddoups cites a statement indicating that Utah “does not prosecute those engaged in religiously motivated polygamy … unless the person has entered a religious union with a girl under eighteen years old.” Utah, I presume, would exercise the same prosecutorial discretion with respect to a married person who cohabits with someone who is not his spouse—that is, it would prosecute only when the married person is cohabiting with someone under the age of eighteen. (If Waddoups addresses or disputes this point, I missed it.) Such instances may well be much rarer in Utah than religious unions between a married man and a girl under eighteen—and they may also be much less likely to come to light than plural relationships. Thus, I don’t see how the apparent fact that the cohabitation prong “in its application primarily applies to those involved in religious cohabitation” (p. 59) supports, much less compels, an inference of discrimination against religious cohabitation.
Second, even if this ground were sound, it seems to me that the appropriate remedy would be to bar discriminatory enforcement against the plaintiffs, not to invalidate the cohabitation prong. (Some or all of the other grounds, if sound, might well support invalidation of the cohabitation prong; I’m skeptical that any of them are sound.)