On January 21, 2016 the 10th Circuit Court of Appeals is set to hear arguments on Utah’s bigamy law forbidding cohabitation. The law, Utah Code 76-7-101, states a person is guilty of bigamy if he or she is married and cohabits with or purports to marry another person.
The Sister Wives
A polygamist group, known as “The Sister Wives,” through their syndicated reality show on TLC, challenged Utah’s law under the premise that the statute is unconstitutional. The United States District Court found the law was unconstitutional and reasoned the term “purport to marry” in the statute was too broad. The District Court narrowed the term to include only state sanctioned marriages, via marriage license, and to exclude unsolemnized marriages. Consequently, the State of Utah appealed the decision and oral arguments will ensue before the 10th Circuit in Denver, Colorado. Brown v. Buhman, F.2d 1170 (D. Utah 2013).
Utah Supreme Court
Under Article III of the Utah Constitution, it states, “perfect toleration of religious sentiment is guaranteed…but polygamous or plural marriages are forever prohibited.” In 2006, a prosecuted polygamist claimed that Utah’s bigamy statute was unconstitutional but the Utah Supreme Court held it was, both under the U.S. Constitution and Utah Constitution. State v. Holm, 137 P.3d 726 (Utah 2006).
Tenth Circuit Court of Appeals
In 1985, Murray City terminated the employment of a city police officer because he was practicing plural marriage, which meant he failed to comply with Article III of the Utah Constitution. The officer argued Utah’s law prohibiting polygamy was desuetude and should no longer be enforced. On appeal, the Tenth Circuit disagreed with the officer and asserted “polygamy has been prohibited since society’s inception, and its prohibition remains in full force.” Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985).
In response to Utah’s appeal, the Sister Wives argued in court filings that the recently enacted same-sex marriage laws are applicable to polygamy. Although the U.S. Supreme could had not yet decided the issue of same-sex marriage when the Sister Wives brought their case before the court in 2013, it will be interesting to see how and what the Tenth Circuit will decide.