Utah asks judge to not rewrite polygamy laws

Posted at 7:19 AM, Feb 13, 2014

SALT LAKE CITY — In its response to a demand by reality TV polygamist Kody Brown and his wives to have a part of Utah’s polygamy statute declared unconstitutional, lawyers for the state ask for it to remain, so the legislature may make changes.

“For the Court to ‘strike’ the phrase ‘or cohabits with another person’ from Utah’s bigamy statute, Utah Code § 76-7-101(1) (2013), gives the impression that the Court is rewriting the statute,” assistant Utah Attorney General Jerrold Jensen wrote. “The preferred term is to ‘sever’ the offending portion of the statute.”

In the filing in U.S. District Court and obtained by FOX 13 late Wednesday, the Utah Attorney General’s Office admits “the consequence is the same.”

“Defendant acknowledges the Court’s decision that the cohabitation prong of the statute is unconstitutional,” the filing states. “Defendant merely suggests to the Court that the preferred way of declaring a portion of a statute unconstitutional is to ‘sever’ it, rather than ‘strike’ it, thereby preserving the authority of State lawmakers to write or modify its own laws.”

In the filing, the attorney general’s office said the Brown family has already said it would object to the language. In their own legal briefs, the polygamous family’s attorney, Jonathan Turley, said they would not seek financial damages from the state; they were satisfied that a portion of Utah’s anti-polygamy statute had been declared unconstitutional.

The Browns sued the state in 2011, claiming Utah’s polygamy ban violated their First Amendment right to religious freedom and privacy.

In a December ruling, U.S. District Court Judge Clark Waddoups declared that Utah’s bigamy law was unconstitutional in part, striking down the cohabitation prong of the law, which has been used to prosecute polygamists in the past. He did, however, preserve the portion of the law that makes it illegal for a man to seek multiple marriage licenses.

The ruling, legal observers have said, essentially decriminalizes polygamy in Utah, which abandoned the practice as a condition of statehood in 1890. In their filing, the state also claimed that Kody Brown and his wives, Meri, Janelle, Christine and Robyn were not entitled to injunctive relief.

“Irreparable harm is a necessary requisite for the granting of a permanent injunction,” Jensen wrote, noting that in a sworn declaration, the Utah County Attorney said the investigation into the Brown family had been closed and bigamy charges would not be leveled.

“Defendant also declared that –like the State of Utah before it – Utah County had adopted a policy to not enforce the criminal bigamy statute in the absence of probable cause to also charge other, collateral crimes. That, by itself, should end the matter.”

These legal filings are all in response to Judge Waddoups’ hearing last month on whether taxpayers owed the Brown family money as a result of their lawsuit. The judge will ultimately have to issue a written order, likely after more back-and-forth between the Brown family’s attorneys and the state.

Once that final order is entered, the state has 30 days to formally appeal the judge’s decision to the 10th U.S. Circuit Court of Appeals in Denver.

It would be the second marriage ruling the state is fighting: a week after Judge Waddoups’ ruling, U.S. District Judge Robert Shelby declared Utah’s Amendment 3 (which defines marriage as between a man and a woman and does not recognize anything else) unconstitutional. As a result, more than 1,300 same-sex couples wed in the state before the U.S. Supreme Court granted a stay pending appeal.

A Utah state lawmaker is already running a bill that would rewrite Utah’s bigamy lawsto match Judge Waddoups’ ruling. Rep. Jerry Anderson, R-Price, told FOX 13 his HB 58 is “in line with the First Amendment religious liberty.”

His bill is still before the House Rules Committee, which decides if it gets heard.