Persecuting Polygamists: The Utah Attorney General’s Awkward Appeal

After two requests for delayed filings, the Utah Attorney General’s office recently submitted its appeal in the Kody Brown polygamy case to the Tenth Circuit Court of Appeals. In it, the state’s attorneys seek to reverse a recent district court ruling invalidating Utah’s statute that criminalize consensual cohabitation. In other words, Utah taxpayers are funding legal research and a court proceeding seeking to re-classify Utah polygamists as felons.

The state’s appeal relies heavily on generalization—that “polygamist communities are rampant with sexual abuse of children and women,” that “polygamy is generally harmful to citizens,” and that “the citizens of Utah have declared that polygamous relationships are harmful.” The AG’s office therefore contends that the government may “criminalize bigamy and polygamy in the interests of health, safety, welfare, and even morals, under their police power.”

In short, because some (or even many) polygamists do indeed abuse children and women, the government claims—and exercises—the power to criminalize all polygamists.

Astute readers will note the lack of logic behind such a claim, especially when contrasted against other policy issues wherein Utahns, and the state’s attorneys, would strenuously object to the same standard. For example, should we ban guns because many people use them to harm, or even kill, innocent third parties? Perhaps vehicles should be outlawed forthwith, for they are also used to hurt people. The internet itself is fertile ground for crooks, predators, and hacks—would the Attorney General’s office argue that such a tool should be denied to peaceable people because thousands of their peers use it for evil purposes?

Ultimately, the state wants the statute to remain intact not to prosecute every polygamist in the state, but to increase the amount of charges they can file against a polygamist they allege to be abusing others, or involved in some other crime. But as the Brown family’s attorney noted last fall, the state retains the ability to go after actual criminals:

It is my sincere hope that Attorney General Reyes will reconsider his position and see the wisdom in Judge Waddoups’ decision. After this decision, abuse of spouses and children will continue to be prosecuted regardless of whether they occur in monogamous or polygamous families. These protective services will only be strengthened now that many families can openly integrate into society and not fear prosecution merely because of their family structure. What remains of the statute was narrowly construed by the Court to limit future prosecutions to traditional bigamy, i.e. individuals with multiple marriage licenses. Neither the Attorney General nor the state of Utah should fight a ruling that reaffirmed freedom of religion and equal protection. Utah is a state that was founded by citizens seeking those very rights against government abuse. Utah is better place because of the courageous decision of Judge Waddoups and the commitment of the Brown family in defense of our Constitution.

The Attorney General office’s appeal—riddled with grammatical and spelling errors, awkwardly referring on one occasion to the “pubic welfare”—now increases the potential impact of the case. Letting the district court’s ruling stand unchallenged would have confined its reach to Utah, but if the state loses on appeal, the reach extends to the other states in the Tenth District—Colorado, Kansas, New Mexico, Wyoming, and parts of Oklahoma. An oral hearing has been requested, but is yet to be scheduled.

As readers can see in the interview we conducted with a Utah polygamist two years ago, many polygamists live in happy families free of abuse. Clearly, such families should not be criminalized on the basis of abusive actions by other families who share a commonality with them. Plenty of abuse exists in monogamous marriages, yet monogamous legislators have felt not appetite to criminalize the union itself, blaming an indirect connection for the actions of a few individuals. Sadly, it is easy for many legislators, attorneys, and judges to unfairly use the law to discriminate against a minority class that is different from them.

Attorney General Sean Reyes, who I personally consider a friend, has suggested on several occasions that he feels bound to “defend the laws that have been passed by the state of Utah,” in this and other legal situations. But he has taken an oath not to uphold state code, but the Utah and U.S. Constitutions. As such, I would argue that he should employ discretion; if he feels that a certain statute is indeed unconstitutional, he should refuse to defend it—and force taxpayers to foot the bill—especially when a judge has made that very determination.

Freedom of association is at stake in this case; past Utah lawmakers, and now the Utah Attorney General’s office, allege that the state’s purported “police powers” enable state legislators to criminalize anything they feel is a threat to the ambiguous “public health and safety”—”and even morals,” as the appeal argues. You don’t have to be a polygamist, or support the practice at all, to recognize the profound injustice this appeal seeks to re-institutionalize.