Utah Judges Open Pandora’s Box in Gay Marriage, Polygamy Rulings

December 21, 2013 (updated December 1, 2017)

SALT LAKE CITY — U.S. District Judge Robert J. Shelby unilaterally overturned Utah’s ban on homosexual marriages Friday, opening up a Pandora’s Box many would rather stay closed.

Shelby cited the Fourteenth Amendment’s Due Process and Equal Protection clauses as reason to strike down the law in the very conservative state. Coincidentally or otherwise, U.S. District Judge Clark Waddoups struck down parts of Utah’s ban on polygamy earlier this week, de-criminalizing the practice. He ruled the law violated the Freedom of Religion clause pursuant to the First Amendment.

Appeals are almost certain in both cases, which is where the “fun” begins.

History of Polygamy In LDS Church

The Church of Jesus Christ of Latter-Day Saints officially outlawed plural marriages, aka polygamy, in 1904, according to the Utah Education Network. Church members were encouraged by apostle Orson Pratt to engage in the practice after LDS founder Joseph Smith added it to the canon as early as 1830. Polygamy was never universally accepted by LDS members, with plural marriage prevalence varying greatly from city-to-city in the Utah area at the time.

The U.S. Congress passed the Morrill Act in 1862, which dissolved the LDS Church corporation. The Edmunds Act was passed in 1882, making polygamy a federal crime. The Edmunds-Tucker Bill of 1887 took the matter a few steps further. It forced plural wives to testify against their husbands, and dissolved the Nauvoo, Ill. Legion – a local militia formed to protect Illinois Mormons. Ending plural marriages was also a de-facto condition of giving Utah official statehood in 1904. Few Mormons today are in plural marriages – none of which are legally sanctioned by the state anyway.

Legal Conundrum

The U.S. Supreme Court denied review of the Ninth Circuit’s Proposition 8 ruling, which basically legalized gay marriage in California. But the Court did not rule the ban was unconstitutional. It simply lacked jurisdiction based on the fact the appeal was brought by private citizens, not the State’s Attorney General or Governor.

Though LDS membership in Utah is sliding, members still comprise 60.7 percent of the state’s population, according to Church statistics. The fact that Utah’s judicial, legislative and executive branches are all heavily conservative, the State itself is likely to request certiorari by the U.S. Supreme Court in Judge Shelby’s decision. The justices will be forced to rule on the merits of the claims, as opposed to dismissing on a technicality.

It will be interesting to see how the state handles Judge Waddoups decision. The LDS Church’s ban on polygamy is likely to supersede all politics in this case however. The LDS Church also donated upwards of $20 million to California Prop. 8 campaign, and is given much of the credit for getting the initiative passed.

Either Both or Neither

When people start screaming “gay marriage will lead to bestiality, polygamy and pedophilia,” they are quickly muted by mainstream media. Just like the Iowa Supreme Court ruled that denying homosexual couples the right to marry is unconstitutional, Judge Shelby did the same thing. Three Iowa Supreme Court Judges – Chief Justice Marsha Ternus, Justices David Baker and Justice Michael Streit, were voted out of office the following year.

Therefore it would also be unconstitutional in Utah to deny consenting adults the right to enter into plural marriages. The difference is that the the gay marriage ban was ruled unconstitutional pursuant to Fourteenth Amendment due process and equal protection, while the polygamy case is First Amendment based. Both will be very interesting to watch unfold.

The SCOTUS probably won’t see either case until late 2015 or early 2016. Its possible President Barack Obama will appoint two more justices before he leaves office in 2016. Antonin Scalia and Anthony Kennedy are both 77, and Ruth Bader-Ginsberg is 80. Replacing the latter wouldn’t change the make-up of the Court at all, but replacing either Scalia or Kennedy would. Stay tuned.

Utah, at least temporarily, is the 18th U.S. state to allow homosexual marriage.

UPDATE from CBS News, March 29, 2017: Utah Attorney General Says Polygamy Won’t Be Prosecuted

UPDATE from The Guardian, April 11, 2016: 10th Circuit Restores Utah Ban on Polygamy (certiorari denied later)


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