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Tuesday, April 12, 2016

Utah Anti-Polygamy Law Upheld On Appeal....Sort Of

by JASmius



Remember last summer, in the immediate aftermath of the disastrous Oberfell v. Hodges SCOTUS decision, when the floodgates of debauchery opened, including a Billings, Montana, menage a toi that immediately applied for a "marriage" license, on the grounds that since the legal definition of "marriage," now included pretty much anything, why not them?  And it was perversely logical, since there'll doubtless be a lot weirder applicant combinations than that.

Well, this Tenth Circuit appellate court decision overturning a strike-down of Utah's anti-polygamy law has just made that war at least a bit more interesting:

This afternoon, the United States Court of Appeals for the Tenth Circuit issued its decision in Brown v. Buhman, #14-4117, reversing the decision striking down the cohabitation provision of the Utah polygamy law. The opinion of the panel is attached below. The panel ruled entirely on standing grounds and did not address the merits of the constitutional violations committed in the case. As lead counsel in the case, I have been going over the opinion with our team including our local counsel, Adam Alba, as well as the Brown family. We respectfully disagree with the panel on its interpretation of the governing law and we will appeal the decision.

Remember the TLC "reality" TV show Sister Wives?  Me, neither.  I stopped watching the Learning Channel years ago when it degenerated into the Pervert Documentary Channel, for all intents and purposes.  It's the "story" of a guy and four gals and some hardcore male sexual multi-tasking, I guess.  Anyway, a couple of years ago they were prosecuted under Utah's bigamy and polygamy laws and won when the federal court struck down the aforementioned State anti-polygamy statute as being unconstitutional because it denied Mr. Brown the right to "marry" more than one member of his harem, or even call its other three members "common law wives".  Or something like that.

Anyway, the Tenth Circuit's reversal isn't the stand for moral probity that it may appear at first glance:

Some legal experts said the Supreme Court’s decision last year finding a constitutional right to s[odo]marriage would inexorably lead to a ruling striking down anti-polygamy laws. However, the Tenth Circuit Court of Appeals issued a decision Monday that left that question for another day by ruling that the case before them was moot since the plaintiffs no longer faced a credible threat of prosecution under the law....

A district court judge had ruled that part of the anti-polygamy law was unconstitutional, but the three-judge appeals court panel ruled in a unanimous opinion Monday that the case was no longer viable once the prosecutor involved, Jeff Buhman, issued a new policy limiting prosecution to cases of deception or involving polygamy and some other crime, such as abuse.

In essence, circumstances allowed the Tenth Circuit to punt and leave the next "landmark decision" for another day and, in their hopes, another court.

Justice Kennedy was crushed, I"m certain.

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