A U.S. District Court judge ruled Friday that a key part of the state’s longstanding polygamy laws are unconstitutional, marking a victory for polygamous families who have long sought to have their plural marriages decriminalized.
A Utah judge ruled that part of the state’s anti-polygamy statute’s phrasing, which forbids ”cohabit[ing] with another person,” is a violation of the First Amendment. ”The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it,” Judge Clark Waddoups wrote in his ruling.
It’s still illegal to have more than one marriage license in Utah, but polygamists have long done an end-run around this prohibition by maintaining one legal marriage while cohabiting with numerous wives. In the Darger family, who TIME featured in 2012, Joe is married legally to Alina, but also lives and has children with, identical twins Vicki and Valerie. The Dargers live outside Salt Lake City and are openly polygamous, but have had brushes with the law. They are a new breed of Fundamentalist Mormon, who dress in contemporary clothes and send their kids to public school but are committed to carrying on with the tradition in which they were raised.
Friday’s ruling was in response to 2011 lawsuit brought by the Brown family, who became famous after appearing on the TLC reality show Sister Wives. Kody Brown and his four wives, who have 17 children together, claimed that the law violated their right to privacy. Polygamy laws have not been enforced in the state for some time, but the Browns’ popularity and prominence brought things to a head, and attorney general Mark Shurtleff warned he would prosecute the Browns if they continued to publicly flout the law. The family fled to Nevada in 2011, but filed suit in Utah.
The Browns’ lawyer, Jonathan Turley, a professor at George Washington University Law School, argued the case along the lines of Lawrence v. Texas, which struck down anti-sodomy laws in that state. However, it’s not yet clear whether Waddoups’ ruling means polygamy is now legal in Utah. In a similar case in Canada in 2011, the judge ruled British Columbia’s anti-polygamy laws unconstitutional, but left the laws in place because of the damage to the social fabric that polygamy represented.
As reported in TIME in 2012, studies suggest that polygamy, when conducted among consenting adults (unlike the kind practiced by Warren Jeffs), is not as harmful to the young women who consent to being a second or third wife as it is to young men. Because the older and more successful men attract most of the wives, there are not enough women for the younger men to marry. In a community that values family above all, this can be devastating and has led to many leaving or being expelled from their homes.
Monogamous norms “lead to greater economic success, more trade and lower crime,” argued Joseph Henrich, a psychology and economics professor at the University of British Columbia who was called on as an expert witness. And of course, it’s widely accepted to be less than ideal for children as well, as mothers and children compete for a father’s very limited attention and resources. The practice, many ex-polygamists argue, can also lead to terrible abuse.
The Utah Attorney General’s office, which has been working to make inroads into the polygamous community over the years, has not said whether it will appeal the ruling.