The FAQs: The Sister Wives Polygamy Ruling

Note: The FAQs is a TGC series in which we answer your questions about the latest news and current events.

Did a federal judge declare Utah’s polygamy law to be unconstitutional?

No, though the federal district court did rule that key parts of Utah’s polygamy law is unconstitutional.

What was the case about?

sister-wivesUtah resident Kody Brown is legally married to one woman (Meri) but considers himself to be in a “spiritual union” with three additional women (Janelle, Christine, and Robyn) who he also calls his wives. Together, the four have 17 children together and live in three houses. Their family life is the subject of the TLC reality TV show, Sister Wives. The Browns are members of a fundamentalist Mormon group, not part of The Church of Jesus Christ of Latter-day Saints, which does not condone the practice of polygamy.

Utah state officials publicly denounced the Browns as “committing crimes every night on television” because they are violating the state’s bigamy law. Under Utah Code Ann. § 76-7-101(1) (2013), a person is guilty of bigamy when “knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

What part of the law was declared unconstitutional?

U.S. District Court Judge Clark Waddoups struck the phrase “or cohabits with another person” from the statute, claiming that this phrase violates constitutional guarantees of due process and religious freedom. (This is rather peculiar, for as legal scholar Orin Kerr says, “I don’t know where the judge gets the idea that individual words or phrases are evaluated for their constitutionality, as compared to laws, but that’s an assumption the judge makes throughout the opinion.”)

What is the current status of polygamous marriage in Utah?

The ruling appears to say that a person who is legally married to one spouse cannot legally marry a second spouse (or third, or fourth, etc.). However, they are allowed to cohabitate with and claim to be married to additional people as long as they don’t attempt to obtain a state-issued marriage license. (As Kerr says, “At least, that’s what I think the court is saying. This isn’t an easy opinion to decipher.”)

Does the ruling affect other states?

Not directly. Only three states (Mississippi, Florida, and Michigan) currently have laws on their books against cohabitation by opposite-sex couples, though they are generally not enforced. Many legal scholars believe that in light of Lawrence v. Texas (the 2003 ruling that struck down the sodomy law in Texas and made same-sex sexual activity legal in every U.S. state and territory), such laws would be considered unconstitutional. In other words, it is likely already legally permissible to engage in a polygamous structure similar to the one that Kody Brown, his wife and his concubines are engaging in.

What is the difference between bigamy and polygamy?

Bigamy is the condition of having two wives or two husbands at the same time. Polygamy is having two or more spouses. Having several wives at the same time is called polygyny and being married to several husbands is polyandry.

What does this ruling portend for the future of marriage?

The primary significance of this ruling is not so much its current application but rather what it reveals about how federal court rulings are heavily influenced by Lawrence v. Texas. Polygamy is, in essence, already decriminalized. In certain states, a couple could be legally married (husband/wife, husband/husband, or wife/wife), be cohabiting with another married couple, and claim that all four are married to each other (though not legally). Such arrangements are protected under Lawrence because the court claimed that, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

The Lawrence decision was the foundation for all legal decisions allowing same-sex marriage. When polygamous marriage is made the law of the land, it will likely also have its roots in Lawrence.


Other Posts in this Series:


The Debt Ceiling

Red Lines, Israeli Airstrikes, and Civil War in Syria

Women in Combat

The Fiscal Cliff

The Supreme Court Ruling on Obamacare

Southern Baptists, Calvinism, and God’s Plan of Salvation

Are Mormons Christian?

The Contraceptive-Abortifacient Mandate

Do Muslims and Christians Worship the Same God?

  • Rich Starnes


    The idea that a court can strike down only parts of laws as unconditional has been pretty well established for over 200 years. It’s called “severability,” and its purpose is to preserve as much of the legislature’s intent as possible by upholding the constitutional parts of a law while only striking down the offending portion. The entirety of Kerr’s analysis seems to be that he doesn’t see that being done here, as the court’s ruling guts the legislative intent, i.e. the law wasn’t about merely fraudulent multiple legal marriages but was directed toward any representation of multiple people holding themselves out as “married.”

  • ForeBarcaLBJEEP

    Lawrence v. Texas will also legitimatize bestiality. So writes Eugene Kontrovich at

    “Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. Given that bestiality taboos existed long before animal rights movements, one can assume their legalization or delegalization is largely based on the old taboos or stereotypes, perhaps in the sheep’s clothing of animal rights. (Similarly in the VMI case, the Court refused to let the state “update” the rationale for an old practice to something that might sound more in line with current thinking.) But insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests. Bestiality bans regulate human sexual expression. And in the Supreme Court’s jurisprudence, sex is special. The government can also regulate, even ban, consumer products, but not when they are condoms, because that is also a regulation of sexuality. Cock fighting can be banned not because the animal suffers, but because the government needs little excuse to ban any commercial activity. Sexual activity is different. One could argue that ick factor aside, bestiality should if anything be more protected than the dominant social paradigm of 2-person sex. Once there are two people involved, it is a social issue, not purely “private.” Thus such laws can be justified by some purported negative social consequences: uncared for kids with heterosexual fornication; unmarried poor men for polygamy; mutation for incest. By these standards, bestiality (or any other kind of one-person sexual activity) is the most innocuous, as it involves only a person and his property. Spill-over effects on other humans are minimal.”

  • Christian Vagabond

    The article you quoted is incorrect in so many ways. Of course prophylactics are regulated. All birth control and sexual products fall under FDA and consumer safety laws. There are minimum standards required for them, and products have been taken off the market for a a variety of reasons. Contraceptive sponges were removed from the market in the 90’s because of health concerns.

    Animal cruelty was the primary reason cockfighting became illegal. And bestiality fails the writer’s criteria for the same reason. Sex must be consensual for it to be legal. An interspecies relationship cannot be consensual. Just because a person has the capacity to force themselves upon an animal, that doesn’t make it legally justifiable. Plus there are legitimate health concerns involved for the animal and the person.

    • Jeremiah Henson

      There are hundreds of health concers for homosexual behavior as well.

      • Christian Vagabond

        The health risks homosexuals face are the same as the ones heterosexual couples face. Interspecies sex has additional health risks.

  • John

    Excellent article. I have studied the fundamentalist sects of the Latter-day Saints for many years now, and this article raises some valid and important points.

    As a point of correction and clarification: polygamy is the general term used for multiple spouses, male or female, polygyny specifically refers to multiple wives, and polyandry is for multiple husbands. The difference between polygamy and bigamy is more of semantics: bigamy is typically used in legal issues.

    • jason

      John – Hi!!! What do you think mainstream LDS will do with this? I mean they currently, for the most part for rank and file, are ashamed of the former practice, but I remember they said they would die before they renounce it and hide (many went to Mexico), and when they finally did proclaim the end I believe it had to do with the laws pressing in on them but not a spiritual law/truth…

      • Darren Blair

        What happened was that the church had expended its last legal challenge to the anti-polygamy laws when SCOTUS sided with the government. At that point, and with various government agencies agitating for permission to use armed force against individual members, the church found itself having to relent.

        • jason

          So then, where does that leave the modern LDS church? That is, if they stopped this spiritual wifery because of “mans” law, and now man has relented, I wonder if they will feel the need to re-institute it here on earth…

          • Darren Blair

            Understand that not only am I an active member of the Church of Jesus Christ of Latter-Day Saints, I am descended from a plural marriage and so this touches upon my family history.


            A number of things keep getting lost in the shuffle when people talk about polygamy as historically practiced.

            One of these things is that plural marriage actually served as a crude social safety net for women who were widows or otherwise unmarried; remember, back then the social programs that we enjoy now largely did not exist.

            In the case of my ancestor, family legend says that the church requested him to take a second wife (and later a third) due to a lack of men who could serve as good husbands (that is, not enough men were of the proper moral character and/or had the means to provide for a family).

            Similarly, Brigham Young’s first plural wife was reportedly a widow, and the current scholarly hypothesis is that Fanny Alger (the woman regarded as Joseph Smith’s first plural wife) was a “girl in trouble” whose lover had abandoned her.

            In that sense, plural marriage isn’t quite as necessary today as it was in the past; if something goes wrong, women have options.

            • jason

              Im sorry Darren, but youve been reading some false hype:

              Similarly, Brigham Young’s first plural wife was reportedly a widow,
              —–What about the other scores he married?

              and the current scholarly hypothesis is that Fanny Alger (the woman regarded as Joseph Smith’s first plural wife) was a “girl in trouble” whose lover had abandoned her.
              —–Im not sure what scholarly circles claim such false truths (FAIR I assume) but this is just not true. Joe didnt marry her because her “lover abandoning her” amounts to nothing knowing thats he was like 14 or 15 years old and living with her parents (in fact Joe told her parents that things would be great for her parents if they were to consent).

              There’s been so so so so so much lies and attempts at apologetics when it comes to why the polygamy (to many girls to boys ratio is one you said… but what about polyandry (marrying of already married women) ad how that was rampant in Smiths case…), but at the end of the day, it is in not in the immediately earthly sense that this plural marriage was instituted, rather it was part of the pantheon of gods and goddess and the way procreation works for the matter…

              Sorry my man.


            • Darren Blair

              Jason –


              According to a DNA study that was done of known descendents of people who were reportedly the children of Joseph Smith and his plural wives, Fanny Alger’s son was ruled out as being an actual biological child; he was one of five that were disqualified after DNA comparisons between their descendents and the confirmed descendents of Joseph Smith and Emma Smith were compared.

              And no, I didn’t say “too many girls to boys”. I said “not enough guys who would make good husbands.”

              There’s a wee bit of a difference.

              Anyway, I have to leave for work soon (I work the night shift). Be back in a few hours.

  • Betsey

    “Polygamy” is plural marriage regardless of the number of husbands or wives; “polygyny” refers to multiple wives; “polyandry” refers to multiple husbands.

  • Roger Patterson

    To be clear, polyganmy means marriage to multiple people. Polygyny refers to multiple wives. Polyandry refers to multiple husbands.

    The mainline Mormon church only practiced polygyny, though it is commonly called polygamy.

    As a former Mormon, I am interested to see what will happen once polygamy (in all its various combinations) is declared legal, since the rationale for abandoning it in the past was that it was against the law of the land. It is still prescribed in the Doctrine and Covenants. The Mormon fundamentalists are actually the ones who are toeing the doctrinal line of their original prophets.

  • Melody

    Example: If a couple that receives disability income from the government can’t afford to get legally married because it destroys their eligibility has a “spiritual” union they can still lose their income and health care if Social Services get wind. They do not care that there isn’t a state license.

    Example: A poorer couple splits up. They go their different directions but do not have the spare cash for a legal divorce. Often, too often, they move in with someone they like better.

    How do these real life situations square with the ruling? Or does it completely depend on the state?

    • Lori

      Melody, I think the first example you give is a significant reason for including “cohabitating” in the law in the first place. It’s my understanding that it’s relatively common practice in polygamous sects for women to receive aid for themselves and their children as single mothers even though they are “spiritually married” and living in the same household as the children’s father.

      • Darren Blair

        From what I understand, it’s called “Bleeding The Beast” and is seen as “just desserts” for the anti-Mormon pogroms of the 1800s and very early 1900s; the concept is comparable to the concept calling for reparations to be made for slavery.

        However, in some instances it’s actually full-on welfare fraud. Even those jurisdictions that are likely to turn a blind eye to plural marriages aren’t going to ignore welfare fraud.

  • Lori

    I’m not sure why anybody would conclude that this ruling means polygamy will become legal. Certainly the judge could have gone in that direction, but he didn’t. The polygamy ban was upheld. It was only regulations on cohabitation that were struck down. I think that makes sense. Those seem to be largely unenforceable laws, anyway, unless we want a high degree of government intrusion into our private lives.

    I know everybody worries that polygamy will be made legal, but I don’t see it happening. Marriage, legally, is a contract conferring rights and responsibilities, and those are conferred on two people. You can change the genders of those entering into the marriage contact without actually changing the conferring of rights and responsibilities. (I’m talking about marriage from a strictly legal standpoint here.) There are not, legally, marriage rights/responsibilities that get assigned to men and others that get assigned to women, and so same-sex marriage changes the basic contract. The contract remains the same.

    However, polygamy would require a drastic change to the actual contract. If I get sick and cannot make medical decisions, the marriage contract means my husband is the one, unless I’ve specified otherwise, who will make them for me. But, what if I had two husbands? Which one would get to make my medical decisions? What if they were at odds with each other? If my husband dies, I inherit his wealth. But what if he had two wives? How do we split his property between us? At a purely functional level, the marriage contract is about streamlining a whole bunch of rights and responsibilities without two individuals having to determine each of them separately. But that isn’t possible in a polygamous marriage. More than two people simply could not enter into the marriage contract as it stands, because it’s a contract for two people in a way that it wasn’t a contract for a man and a woman (in the sense that, for example, rights around medical decision-making or custody or inheritance haven’t been differentiated by gender for many decades). I don’t see the marriage contract being completely overhauled any time in the foreseeable future.

  • Ann

    We must remember that polygamists need our prayers. They are trapped in a works-based religion that provides no hope. For further insights into their man-made religion, see Lifting the Veil of Polygamy on youtube. For further insights as to the needs of those leaving polygamist groups, visit
    Having said all that, what is irritating to many of us who live in Utah is that a FLDS husband is legally married to his first wife and all other “spiritual wives” are not recognized by the state and are therefore considered single mothers making their children eligible for food stamps. So, a man can “marry” as many women as he wants, father dozens of children and not have to pay to feed them because we, the tax payers, are picking up the food bill.

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  • Hugh McBryde

    With regard to your first point, as to what part is Unconstitutional. I would agree with Waddoups with the caveat of “the current understanding in the modern era of our Constitution.”

    With regard to your second point, Orin Kerr is being obtuse, that is precisely what has been done. That’s what Jonathan Turley, who argued for the Browns said was done. Kerr is lobbying for the idea that the decision isn’t clear, and it is, whether it is good or bad law, it’s clear.

    As to other states (you’re third point), you fail to include Texas, which has a statute using the same sort of phrase as the Utah law, “purport(ing)” to be married.

    Your distinctions between Bigamy, Polygamy and Polygyny are spot on. Your poster Roger tries to drag it back to polygamy as a term to refer to polygynous families. My only explanation for such insistence in the case of clear evidence regarding definitions is that “polygamy” has become a pejorative term and every opponent of plural marriage (the more accurate term for what the Browns do) wants to drag them back into a classification that has been thoroughly trashed through connotation.

    As to your last point, it has been the position of real “traditional marriage” advocates that the practice has been decriminalized, but there were laws such as those in Utah and Texas that held polygamy in limbo. Namely, by having a law that declared “purporting” to be a crime, but never prosecuting a case to a decision, they kept alive the illusion that it was a criminal activity. Right or wrong, Judge Waddoups called that a ploy last year, and kept the case alive, leading to Friday’s decision.

  • Ann
  • Ryan

    Frankly, I think the ruling is a good one.

    First, the man in question is not a polygamist. In both the eyes of the state and the eyes of Scripture, he is a monogamist having an adulterous relationship with three other women. He can claim he’s a polygamist all he wants, but there’s more to marriage (again, both the legal and spiritual institution) than declaring that someone’s your wife.

    Second, the original law was ridiculous, and I think it was right of the judge to alter it. I have a friend who fell upon some hard times, but fortunately was offered a place to stay by a married couple he knew. Does that make any of them polygamists? No, of course not, but the law in Utah could have been twisted to say otherwise, because, knowing his friend had a husband, he nonetheless purported to cohabit with her.

    • Hugh McBryde


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