Bronson v. Swensen
| Decision Date | 29 August 2007 |
| Docket Number | No. 05-4161.,05-4161. |
| Citation | 500 F.3d 1099 |
| Parties | J. BRONSON, G. Lee Cook, and D. Cook, Plaintiffs-Appellants, v. Sherrie SWENSEN, Salt Lake County Clerk, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Brian M. Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.
Mark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney General), Salt Lake City, UT, for Defendant-Appellee.
Before TACHA, Chief Judge, HARTZ and HOLMES, Circuit Judges.*
Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook ("plaintiffs") subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook. G. Cook and J. Bronson filed an application for a marriage license, and Defendant-Appellee Sherrie Swensen ("Swensen"), the Clerk for Salt Lake County, Utah, refused to issue the marriage license. Plaintiffs subsequently brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's refusal to issue the marriage license violated their associational, substantive due process, and free exercise rights under the First and Fourteenth Amendments to the United States Constitution.
The district court held that plaintiffs possessed standing to challenge the constitutionality of Utah's civil and criminal prohibitions against the practice of polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of plaintiffs' claims, the district court applied controlling Supreme Court and Tenth Circuit precedent and found the absence of a constitutional violation. Consequently, the district court granted summary judgment to Swensen on all of plaintiffs' claims.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. After concluding that plaintiffs have forfeited any challenge to the constitutionality of Utah's civil prohibition of polygamous marriages, we hold that plaintiffs lack standing to bring claims against Swensen based upon the purported unconstitutionality of Utah's criminal prohibition of polygamy. We therefore VACATE the district court's judgment in favor of Swensen on the merits of these criminal-prohibition claims and REMAND the case for entry of an order dismissing these claims for lack of subject matter jurisdiction.
In 1894, Congress passed the Utah Enabling Act, which demanded as a condition of statehood that Utah enact an "irrevocable" ordinance preserving the security of religious beliefs, but forever prohibiting "polygamous or plural marriages." See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 . Utah complied with this requirement, and, in 1895, a nearly identical version of this proscription was included in Article III of Utah's Constitution:
The following ordinance shall be irrevocable without the consent of the United States and the people of this State:
First:—Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
The constitutional prohibition of "polygamous or plural marriages" has spawned civil and criminal legislation. See State v. Holm, 137 P.3d 726, 738-40 (Utah 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007). On the criminal side, Utah enacted an anti-bigamy statute,1 which reads as follows:
(1) 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.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
Utah Code Ann. § 76-7-101.2
The Supreme Court of Utah has interpreted the term "marry" in § 76-7-101 as relating to both "legally recognized marriages and those that are non state-sanctioned." Holm, 137 P.3d at 734. It also has interpreted the word "cohabit" in § 76-7-101 in its colloquial sense, as meaning "to dwell together as, or as if husband or wife" or to "live together in a sexual relationship, especially when not legally married." State v. Green, 99 P.3d 820, 832 (Utah 2004) (internal quotation marks omitted) (quoting The American Heritage Dictionary of the English Language (4th ed.2000), and Webster's New Dictionary, Concise Edition (1990)).
With respect to civil legislation, § 30-1-2 of the Utah Code declares "void" and "prohibited" any marriage involving a person with a "husband or wife living, from whom the person marrying has not been divorced." Utah Code Ann. § 30-1-2. A county clerk is barred from issuing a marriage license for a "prohibited" marriage. Id. § 30-1-16. In fact, Utah makes it a crime for a clerk or deputy clerk to "knowingly issue a license for any prohibited marriage." Id. § 30-1-16. An offender is subject to "confinement in the state prison for a term not exceeding two years" and/or to a "fine in any sum not exceeding $1,000." Id. No marriage may be solemnized without a license issued by the county clerk. Id. § 30-1-7.
Plaintiffs subscribe to the religious doctrine of plural marriages, which they define as a "man having more than one wife," similar to that practiced by the Church of Jesus Christ of Latter-Day Saints in Utah prior to 1890. App. at 19, 33, 46-47.3
Plaintiffs, G. Cook and J. Bronson, applied for a marriage license and paid the $50.00 filing fee to a deputy clerk at the Marriage Division of the Salt Lake County Clerk's Office in Salt Lake City, Utah. The application indicated that G. Cook was already married to D. Cook. In addition, G. Cook orally informed two deputy clerks that he desired to legally marry a second wife and that D. Cook consented to this marriage. Swensen, the elected Clerk of Salt Lake County, instructed the two deputy clerks to deny the application and to inform plaintiffs that plural marriage in Utah is illegal. The Clerk's Office refunded the $50.00 filing fee.
Plaintiffs filed suit under 42 U.S.C. § 1983 against Swensen and the two deputy clerks, alleging that they violated plaintiffs' federal constitutional rights, including their rights to the free exercise of religion, to intimate expression and association, and to privacy. Plaintiffs sought nominal damages, a declaratory judgment, and injunctive relief.
Subsequently, the parties agreed to seek the dismissal of the two deputy clerks. They also stipulated that Swensen acted under color of state law in denying the application. Plaintiffs moved for summary judgment. And, in response, Swensen filed a cross-motion for summary judgment.
After officially dismissing the deputy clerks from the action, the district court entered summary judgment in favor of Swensen. The district court determined that plaintiffs had standing to challenge the constitutionality of § 1 of Article III of the Utah Constitution, § 3 of the Utah Enabling Act, and § 76-7-101. The district court then applied controlling Supreme Court precedent, Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), and controlling Tenth Circuit precedent, Potter v. Murray City, 760 F.2d 1065 (10th Cir.1985), to uphold the constitutionality of the contested provisions. The district court reasoned that Supreme Court jurisprudence post-dating Reynolds and Potter, including Lawrence v. Texas, 539 U.S. 558 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), did not suggest a different outcome.
Plaintiffs filed a motion asking the district court to reconsider its decision. The district court denied that motion. And plaintiffs filed a timely notice of appeal.
Plaintiffs appeal the district court's grant of summary judgment to Swensen on their § 1983 claims, arguing that the district court erred in failing to find the existence of a constitutional violation. We hold that plaintiffs have forfeited their claims contesting the constitutionality of Utah's civil prohibition of polygamy. We further hold that plaintiffs lack standing to pursue their claims against Swensen based upon the alleged unconstitutionality of Utah's criminal prohibition of polygamy.
An appellant's opening brief must identify "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Fed. R.App. P. 28(a)(9)(a). Consistent with this requirement, we routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief. See Exum v. United States Olympic Comm., 389 F.3d 1130, 1133 n. 4 (10th Cir.2004) (); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995) (). Stated differently, the omission of an issue in an opening brief generally forfeits appellate consideration of that issue. See Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 553, 166 L.Ed.2d 409 (2006); Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1174 (10th Cir.2005).
We conclude that plaintiffs' opening brief does not adequately raise and pursue an argument as to the unconstitutionality...
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