Last week, a Utah judge struck down a key part of the state’s anti-polygamy statute, clearing the way for cohabitation between multiple spouses.
The decision came in a case brought in by Kody Brown and his
four wives, Meri, Christine, Robyn and Janelle. The family stars on the TLC reality
series “Sister Wives.” They argued that the state's law violated their right to privacy.
Judge Clark Waddoups agreed. In his 91-page decision, the judge ruled that the law banning religious cohabitation violated the First and Fourteenth Amendments. However, Waddoups, who took nearly a year to make his decision, stopped short of striking down the state’s bigamy law, which makes it illegal to have multiple marriage licenses.
Joe Darger says that, for his three wives and 25 children, last Friday’s ruling was a cause for celebration.
“That night, we probably had 50 people in our living room. We don’t really drink, so we toasted with sparkling grape juice.”
Darger co-authored a book called “Love Times Three: Our True Story of a Polygamous Marriage” with his wives Alina, 44, and Vicki and Valerie, both 43. He says the ruling means his children won’t have to grow up with the “fear, shame and anger” that plagued his childhood in a polygamous family.
“I was told, contribute to society, but shut up and keep
your head down,” he says.
But when he dropped his kids off at school on Monday, Darger said they were excited to talk about the ruling in class: “My 15-year-old son said, ‘Dad, I think it’s going to make a big difference for us and the other polygamous kids.’”
Up until “Big Love,” HBO’s series about a fictional
polygamous family, and more recently “Sister Wives,” the term “polygamy” tended
to conjure up images of child brides, cult leaders like Warren Jeffs and dusty
desert compounds. But, as the Browns and the Dargers prove, there are some –
though we don’t know how many – adult Americans living in plural marriage among us. And they want the state out of their bedrooms.
“Common sense concludes that familiarity breeds acceptance,” says Kathleen Flake, a professor of Mormon studies at the University of Virginia.
Darger acknowledges that the strides made by the gay rights movement have likely helped his cause, but insists his family is not planning to push for the right to obtain multiple marriage licenses from the state – something he says he’s pretty sure “America isn’t ready for.” Instead, he says that what’s more important to his family is the knowledge that they won’t be targeted for prosecution simply because they live together as "man and wives."
According to Flake, Utah’s “archaic” constitutional prohibition against not just multiple marriage licenses, but even behaving as if you were married to more than one person, came at a time in the late 19th century when the state’s lawmakers were virulently anti-polygamist and trying to separate both the state and the Church of Jesus Christ of Latter Day Saints from the practice.
But these days “you can’t enforce a cohabitation ban,” says
Flake. She says that the judge clearly wrestled with his decision, but finally
came to the conclusion that, “given the relatively mature law on privacy
rights, there’s no basis to interfere with relations among consenting adults.”
In his ruling, Judge Waddoups cited the Supreme Court's 2003 decision in Lawrence v. Texas, which struck down a law against sodomy, quoting from the court's majority decision: "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
According to Bridget Romano, Utah’s Solicitor General, Waddoup’s ruling, while groundbreaking, won’t have much impact on law enforcement activities in the state. Romano says that, typically, polygamous families are not targeted by law enforcement unless there are other “more serious” crimes alleged – like abuse, underage marriage, or welfare fraud. In cases like that, says Romano, prosecutors might tack on a violation of the cohabitation statute.
To Darger, however, the mere threat of prosecution – or, more frightening, losing his children – was enough to lose sleep over. Now, he says, his family doesn’t have to feel like criminals.
“Now I can tell my children, ‘See, it was an injustice. They were wrong.’”