Brown v. Buhman

• Decision Date: 13 December 2013
• Docket Number: Case No. 2:11–CV–0652–CW.
• Citation: 947 F.Supp.2d 1170
• Parties: Kody BROWN, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs, v. Jeffrey R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendant.
• Court: U.S. District Court — District of Utah

947 F.Supp.2d 1170

Kody BROWN, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs,

v.Jeffrey R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendant.

Case No. 2:11–CV–0652–CW.

United States District Court,

D. Utah,

Central Division.

Dec. 13, 2013.

Held Unconstitutional

West's U.C.A. § 76–7–101(1)Jonathan Turley, George Washington University Law School, Washington, DC, Adam Alba, Bountiful, UT, for Plaintiffs.

Jerrold S. Jensen, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

CLARK WADDOUPS, District Judge.

TABLE OF CONTENTS

Introduction

Procedural Background

Factual Background

Historical Background

Analysis

I.

No Genuine Dispute As To Any Material Fact

II.

Cohabitation in the 1973 Statute

A.

The Utah Supreme Court's Interpretation of “Marry” in the Statute

B.

Strict or Heightened Scrutiny

1.

Heightened Scrutiny under the Glucksberg Framework

a.

Polygamy

b.

Religious Cohabitation

2.

Strict Scrutiny under the Free Exercise Clause

a.

Polygamy

b.

Religious Cohabitation

i.

Common-law marriage affected religious cohabitation in the nineteenth century.

ii.

The Statute is facially neutral under Hialeah.

iii.

The Statute is not operationally neutral under Hialeah.

iv.

The Statute is not generally applicable under Hialeah.

v.

The cohabitation prong is not narrowly tailored to advance a compelling state interest.

3.

Heightened Scrutiny under Smith's Hybrid Rights Analysis

C.

Rational Basis Review under the Due Process Clause

D.

Void for Vagueness under the Due Process Clause

III.

“Purports to Marry” in the 1973 Statute

A.

Construction of the Statute

B.

Understanding the Enabling Act and the Irrevocable Ordinance

Conclusion

INTRODUCTION

Before the court are the parties' cross motions for summary judgment relating to Plaintiffs' facial and as-applied constitutional challenges to Utah's bigamy statute, Utah Code Ann. § 76–7–101 (2013) (the “Statute”): Plaintiffs' Motion for Summary Judgment (Dkt. No. 49) and Defendant's Cross–Motion for Summary Judgment (Dkt. No. 55). For the reasons discussed below, the court GRANTS Plaintiffs' Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant's Motion for Summary Judgment (Dkt. No. 55). Accordingly, in Part II below the court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. As further analyzed in Part III below, after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute. The court also terminates as moot Plaintiffs' Motion to Strike Defendant's Cross–Motion for Summary Judgment. (Dkt. No. 60.)

PROCEDURAL BACKGROUND

Plaintiffs named Utah Governor Gary R. Herbert, Utah Attorney General Mark Shurtleff, and Utah County Attorney Jeffrey R. Buhman in a lawsuit challenging the Statute as unconstitutional filed on July 13, 2011. The court ruled in its Memorandum Decision and Order dated February 3, 2012, 850 F.Supp.2d 1240 (D.Utah 2012), that Plaintiffs had standing to pursue the action against Defendant Buhman but dismissed Defendants Herbert and Shurtleff from the case, finding that Plaintiffs lacked standing to sue them in this action. (Dkt. No. 31.) Plaintiffs filed their Motion for Summary Judgment presenting detailed arguments on seven constitutional claims including due process, equal protection, free speech, free association, free exercise, the Establishment Clause, and 42 U.S.C. § 1983. (Dkt. No. 49.) Defendant Buhman responded by filing a Motion to Dismiss for Mootness at that time. (Dkt. No. 46.)

On the date designated for response briefing Defendant Buhman then filed his Cross Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment (Dkt. No. 55) ¹ and a Motion to Stay Plaintiffs' Motion for Summary Judgment Proceedings Pending a Determination of Mootness (Dkt. No. 58). After the court heard and resolved Defendants' motions, Defendant completed briefing on the motions for summary judgment. The court was intrigued by the sheer lack of response in Defendant's filing to Plaintiffs' seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” (Pls.' Reply Mot. Summ. J. 2 [Dkt. No. 71].) Finally, outside of the briefing schedule ordered by the court, Defendant filed a Reply (Dkt. No. 73) in which he, for the first time, provided academic discussion about “social harms” arising from religious cohabitation in Utah, though no admissible evidence was proffered with his Cross–Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013.

FACTUAL BACKGROUND

The court described the relevant facts underlying this lawsuit in its Memorandum Decision and Order dated February 3, 2012 and refers here to that discussion for a general review of the background. (Dkt. No. 31.) Weighing heavily in favor of the court's disposition of these motions for Plaintiffs, the court finds no genuine dispute of the material facts outlined by Plaintiffs in their Motion. ( See Pls.' Mem. Supp. Mot. Summ. J. 1–7 [Dkt. No. 50].)

As noted by Plaintiffs in their Reply Memorandum, Defendant only objects “to parts of four paragraphs in the factual background section” of Plaintiffs' Memorandum supporting their Motion for Summary Judgment. (Pls.' Reply 2–3 [Dkt. No. 71].) “Three of those paragraphs (3, 11, and 32) are objected to only to the extent that they ‘characterize’ the drafters (or enforcers) of the Anti–Bigamy Law as targeting primarily religious plural families.” ( Id. at 3.) ² Moreover, the only fact actually contested by Defendant is Plaintiffs' statement in Paragraph 20 of Plaintiffs' factual background section that “state officials publicly denounced the Browns as committing crimes every night on television.” ( See Def.'s Mem. Supp. Cross–Mot. and Resp. 2 [Dkt. No. 56].) ³ The remainingfacts are uncontested,⁴ and the court therefore finds the following undisputed material facts—quoted though renumbered from Plaintiffs' “Factual Background”—to be relevant to its resolution of the pending motions:

1. The Statute covers not only polygamy but “cohabitation”—a term that encompasses a broad category of private relations in which a married person “purports to marry another person or cohabits with another person.” Utah Code Ann. § 76–7–101 (West 2010).

2. The practice of married individuals cohabiting with other people can include adulterous relations. Compl. ¶¶ 9–10, admitted in Answer ¶¶ 7–8.

3. The Browns are members of a religious group that believes polygamy is a core religious practice. Compl. ¶¶ 111–12; denied in Answer ¶ 48 but well supported by K. Brown Decl. at ¶ 4; J. Brown Decl. at ¶ 3; M. Brown Decl. at ¶ 4.⁵

4. The Brown family does not have multiple marriage licenses. Compl. ¶ 113; denied in Answer ¶ 48 but well supported by K. Brown Decl. at ¶ 2; J. Brown Decl. at ¶ 2; M. Brown Decl. at ¶ 2.

5. There is only one recorded marriage license in the Brown family—that of Kody and Meri Brown. See id.

6. Prosecutions under the Statute have been rare and published cases in the last three decades only involve religious polygynists. Def.'s Mot. to Dismiss at 5–6 [Dkt. No. 7]; Buhman Decl. at ¶¶ 7–9 [Dkt. No. 8–1]; ...

7. Utah government officials are aware of thousands of polygamist families in the state and regularly interact with such families as part of the “Safety Net” program and other governmental programs. Compl. ¶¶ 152–55; admitted in Answer ¶ 55.

8. “The Sister Wives” is a reality show that explores the daily issues and realities of a plural family.

9. The content of “The Sister Wives” program includes the defense of plural families and discussion of the Browns' religious beliefs in polygamy.

10. Utah government officials were aware that the Brown family was a plural or polygamist family for years before the first episode of “The Sister Wives” aired on TLC Network. Compl. ¶¶ 123–24; admitted in Answer ¶ 49; 11. The investigation of the Browns occurred only [after] the first episode of “The Sister Wives” aired. Compl. ¶ 158; admitted in Answer ¶ 58;

12. State officials have acknowledged that “The Sister Wives” program triggered their investigation. Compl. ¶ 163; admitted in Answer ¶ 60. This nexus was also acknowledged by Counsel for Defendant in the December 16, 2011 hearing ...;

13. State officials publicly denounced the Browns as committing crimes every night on television. Compl. ¶¶ 163–65; admitted in Answer ¶ 60;

14. One official connected to the investigation publicly stated the program made prosecution “easier.” Compl. ¶ 165; admitted in Answer ¶ 60;

15. The prosecutors stated that the Brown family moving to Nevada would not prevent them from prosecuting the family. Compl. ¶¶ 167–68; admitted in Answer ¶ 62;

16. The Defendant admitted, through counsel in the December 16, 2011 hearing, that prosecutors gave interviews discussing the Brown family, their alleged crime of polygamy, and the public investigation;

17. The Defendant has found no evidence of any crime by the Browns though he maintains future prosecutors can charge them as a matter of discretion and policy. Shortly before [Plaintiffs filed their Motion for Summary Judgment], the Defendant filed a Motion to Dismiss for Mootness and confirmed that the long investigation of the Brown[s] has been closed shortly before the planned summary judgment motions. He seeks to avoid review of the Statute based on the assurance that, while he cannot guarantee that they will not be...