What does polygamy have to do with Thursday’s circuit court decision on same-sex marriage? One lawyer says there is polygamy connection to DOMA, and a reality TV star wants the multiple-marriage issue before the federal court system.
On Thursday, the Alliance Defense Fund (ADF), a legal agency, said if courts could force individual states to accept same-same marriage by repealing the Defense of Marriage Act , they might also have to accept polygamy.
“Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the right to step in against polygamy at one time in our nation’s history, and it has the right to step in against this attempt at marriage redefinition as well,” said Dale Schowengerdt, an ADF attorney.
We asked Lyle Denniston, the National Constitution Center’s Adviser on Constitutional Literacy, about the statement. Denniston has covered the U.S. Supreme Court for 54 years, and he has seen similar efforts in the past.
“As for attorney Schowengerdt’s concern about polygamy spreading if one state should uphold such plural marriages, that touches on a form of union to which—so far—no state and no court decision has given its blessing,” Denniston said.
You can read Denniston’s detailed explanation here about the ADF statement and other DOMA issues.
But there is a possibility that could change, thanks to a reality TV star.
On Thursday in Utah, local prosecutors said they wouldn’t pursue bigamy charges against Kody Brown, the star of the TV series Sister Wives.
Brown belongs to a sect that is not connected to the Church of Jesus Christ of Latter-day Saints, but his group still practices polygamy.
The Latter-day Saints have barred polygamy as part of their belief system since 1890.
Utah County prosecutors started investigating Brown and his extended family after Sister Wives debuted on TV in 2010. He soon moved from Utah to Nevada as part of the legal fight over the charges. (Brown is legally married to one of the four women.)
Brown and his domestic partners then sued in federal court in 2011, claiming Utah’s ban on having multiple marriage partners violates the U.S. Constitution.
County prosecutors in Utah said on Thursday that they wouldn’t seek to prosecute bigamy charges in general, in the region.
But Brown’s lawyer, Jonathan Turley, said Brown would still pursue his federal case.
Turley claims prior Supreme Court rulings provide legal protections to sexual relationships between consenting adults, such as Brown and his partners.
In the 1878 case of Reynolds v. United States, the Supreme Court ruled that “a party’s religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.”
Plural marriage had been made illegal through various laws at the time, and the court refused to intervene to overturn those laws, based on claims of First Amendment protection.
Since then, the issue has rarely been in front of the Supreme Court. In 2007, the Court declined to hear a high-profile case on the matter.
Where this leaves Brown, DOMA, and same-sex marriage remains to be seen, since local Utah County prosecutors have now formalized a policy to not prosecute participants in polygamist relationships.
In a statement, Brown said he wasn’t finished with his quest for a federal review.
“We are committed to seeking a final review of this law before the federal court and we are excited about the filing of the Motion for Summary Judgment that was filed today on our behalf by Professor Turley and local counsel Adam Alba,” he said in a post on his lawyer’s blog.
Scott Bomboy is the editor-in-chief of Constitution Daily.
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