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In the United States District Court District of Utah Case 2:11-cv-00652-CW Document 78 Filed 12/13/13 Page 1 of 91 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, MEMORANDUM DECISION ROBYN SULLIVAN, AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Plaintiffs, Case No. 2:11-cv-0652-CW v. Judge Clark Waddoups JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendant. 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. Case 2:11-cv-00652-CW Document 78 Filed 12/13/13 Page 2 of 91 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 2 Case 2:11-cv-00652-CW Document 78 Filed 12/13/13 Page 3 of 91 dated February 3, 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. 1 Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims. 3 Case 2:11-cv-00652-CW Document 78 Filed 12/13/13 Page 4 of 91 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 2 This objection rings hollow given Defendant’s own willingness to link the 1973 Statute to the legislative history of the federal anti-polygamy campaign and Utah’s bid for statehood in the late nineteenth century. (See, e.g., Def.’s Mem. Supp. Cross-Mot. and Resp. 3-4 [Dkt. No. 56].) As a result, the objection ignores the language and plain meaning of the Morrill Anti-Bigamy Act of 1862, the Edmunds Act of 1882, the Edmunds-Tucker Act of 1887, and the Congressional Record pertaining to each, not to mention the Enabling Act of 1894. See Sarah Barringer Gordon, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA 119-45, 200-03 (2002) (discussing the church-state concerns animating Congress as a result of Mormon polygamy). In fact, the Utah Supreme Court acknowledged “the reality that the federal government harbored serious concerns about the possibility that the State of Utah could be ruled de facto by the LDS Church” through the practice of polygamy and other means of maintaining a monopoly on political power in the Territory. State v. Holm, 2006 UT 31, ¶ 42, 137 P.3d 726, 734; see also Late Corp. of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1, 49 (1890); Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 921-30 (Utah 1993) (discussing the history of the State of Utah with a view toward Congress’ explicit posture against the Mormon religion). Accordingly, the court disregards Defendant’s suggestion about any possible mischaracterization of the extent to which the parties involved at the time were “targeting primarily religious families” in the decades of anti-Mormon federal legislation that define Utah’s quest for statehood. The historical record amply demonstrates the explicitly religious nature of Congress’ campaign against polygamy in the nineteenth-century Utah Territory and resulting Enabling Act of 1894 and, finally, the Irrevocable Ordinance as cemented in Utah’s 1895 Constitution. See Society of Separationists, 870 P.2d at 928; UTAH CONST. art. III. 4 Case 2:11-cv-00652-CW Document 78 Filed 12/13/13 Page 5 of 91 crimes every night on television.” (See Def.’s Mem. Supp. Cross-Mot. and Resp. 2 [Dkt. No. 56].)3 The remaining facts 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.
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