Case 2:11-cv-00652-CW-BCW 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, ROBYN SULLIVAN,
Plaintiffs, v. JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County,
Defendant.

MEMORANDUM DECISION AND ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Case No. 2:11-cv-0652-CW
Judge Clark Waddoups

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.

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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
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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.
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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.
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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. at ¶ 2.
3 “Defendant denies this allegation. As he states in his Affidavit: ‘I never stated publicly that I would or would not prosecute the Browns, though I am aware that others in my office may have responded to the press to that effect (or at least the press reported that they did).’” (Def.’s Mem. Supp. Cross-Mot. and Resp. 2 [Dkt. No. 56].)
4 Defendant ultimately acknowledged at oral argument that there is no dispute as to any material fact: “We referenced a couple of facts that we took some issue with, but the overall thrust of it there’s no dispute.” (Tr. Hrg. Jan. 17, 2013 4:5-7 [Dkt. No. 75].)
5 Plaintiffs are members of the Apostolic United Brethren Church, a fundamentalist faith derived from nineteenth-century polygamous Mormonism. (See Compl. ¶¶111-12; K. Brown Decl. at ¶ 4; J. Brown Decl. at ¶ 3; M. Brown Decl. at ¶ 4.) See Anne Wilde, Fundamentalist Mormonism: Its History, Diversity and Stereotypes, 1886-Present, in SCATTERING OF THE SAINTS: SCHISM WITHIN MORMONISM 274-80 (Newell G. Bringhurst & John C. Hamer eds., 2007) (providing historical background of the Apostolic United Brethren Church); Brian C. Hales, MORMON POLYGAMY AND MORMON FUNDAMENTALISM: THE GENERATIONS AFTER THE MANIFESTO. 353-67 (2006) (same).
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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;
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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 prosecuted by others for polygamy in the future, he will not prosecute them unless he finds that they have also committed a collateral crime. Def.’s Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for Mootness at [4] [Dkt. No. 47]. . . ;
18. The Defendant has said that there is no guarantee that the Browns will not be prosecuted in the future for polygamy. Counsel for Defendant in the December 16, 2011 hearing . . . (explaining that there are no current plans to prosecute the Brown family but that no one can say whether such prosecutions will occur in the future); [Second] Buhman Decl. ¶¶ 5, 12 [Dkt. No. 47-1];
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19. There has been no allegation of child or spousal abuse by members of the Brown family. Compl. ¶¶ 120-22;
20. No member of the Brown family has ever been charged with a crime. Compl. ¶ 122; admitted in Answer ¶ 49;
(See Pls.’ Mem. Supp. Mot. Summ. J. at 2-7 [Dkt. No. 50].) In addition to the preceding undisputed material facts quoted from Plaintiffs’ Motion, the
court finds the following additional undisputable material facts relevant to the disposition of the current motions:
21. Defendant swore under penalty of perjury that “[a]s Utah County Attorney, I have now adopted a formal office policy not to prosecute the practice of bigamy unless the bigamy occurs in the conjunction with another crime or a person under the age of 18 was a party to the bigamous marriage or relationship.” (Second Buhman Aff. ¶ 8 [Dkt. No. 47-1].)
22. Counsel for Defendant represented at oral argument on January 17, 2013 that the Statute is not intended to capture mere adultery or adulterous cohabitation (see, e.g., Tr. Hrg. Jan. 17, 2013, at 53:8-13), but that it is illegal under the Statute to participate in a wedding ceremony between a legally married individual and a person with whom he or she is cohabiting and/or to call that person a wife (Id. at 52:21-25; 53:16-21.)
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HISTORICAL BACKGROUND6
This decision is fraught with both religious and historical significance for the State of
Utah because it deals with the question of polygamy, an issue that played a central role in the
State’s development and that of its dominant religion, The Church of Jesus Christ of Latter-day
Saints (the “LDS Church” or “Mormon Church”).7 The Brown Plaintiffs are not members of the
6 This “Historical Background” section frames the court’s “Analysis” below of the multiple constitutional violations Plaintiffs claim are allegedly effected by the Statute by providing relevant interpretive background to Reynolds v. United States, 98 U.S. 145 (1879), given the possibility (as urged by Defendant) of simply deferring to Reynolds as the answer to religiously motivated cohabitation in 2013, which the court declines to do. Though the court indeed concludes below that there is no “fundamental right” of individuals to enjoy official State recognition or legitimation of their “purported” polygamous marriages, it does so substantively on Due Process grounds based on a Glucksberg analysis rather than based on the type of “social harm” implied in Reynolds under that decision’s narrow Free Exercise analysis.
7 The LDS Church’s doctrine of polygamy or plural marriage is contained in its canonized book of scripture The Doctrine and Covenants. See Doctrine and Covenants, Section 132 (noting in the preface that “evidence indicates that some of the principles involved in this revelation were known by [Joseph Smith] as early as 1831”). The LDS Church’s founder, Joseph Smith, is believed to have practiced polygamy from as early as 1833 or possibly even 1831. See Richard Lyman Bushman, JOSEPH SMITH: ROUGH STONE ROLLING 323 (2005); Todd Compton, IN SACRED LONELINESS: THE PLURAL WIVES OF JOSEPH SMITH 33 (1997); but see Brian C. Hales, “Fanny Alger and Joseph Smith’s Pre-Nauvoo Reputation,” 35 J. MORMON HIST., Fall 2009, at 148 (dating the beginning of the practice to “the 1835-36 period”); see also Don Bradly, Mormon Polygamy Before Nauvoo? The Relationship of Joseph Smith and Fanny Alger, in THE PERSISTENCE OF POLYGAMY: JOSEPH SMITH AND THE ORIGINS OF MORMON POLYGAMY 22-24 (Newell G. Bringhurst and Craig L. Foster eds., 2010) (supporting 1835-36 start date). Although certain key leaders had begun practicing polygamy relatively early, the LDS Church first publicly announced the practice of polygamy as a key religious tenet in 1852. See Society of Separationists, 870 P.2d at 923.
But the LDS Church later renounced the practice, first in a “Manifesto” in 1890 under the extreme pressure from the federal government’s decades-long campaign against the practice and as part of Utah’s effort to gain statehood, see id. at 927, and then again in 1904 in an “Official Statement” issued to address renewed scrutiny of the continued, “post-Manifesto” practice of polygamy—scrutiny precipitated by Congress’s overwhelming vote to exclude Utah Congressman B.H. Roberts, a practicing polygamist elected in 1898, from being seated in the House in 1899, and then a Congressional inquiry and public hearings about whether to seat Utah Senator-elect Reed Smoot, a monogamous Mormon Apostle, beginning in 1904. B. Carmon Hardy, SOLEMN COVENANT: THE MORMON POLYGAMOUS PASSAGE 24660 (1992). Since the 1904 Official Statement, the LDS Church has strongly and publicly disapproved of the practice of polygamy, as reinforced by LDS Church President Gordon B. Hinckley in the Church’s worldwide General Conference in 1998:
If any of our members are found to be practicing plural marriage, they are excommunicated, the most serious penalty the Church can impose. Not only are those so involved in direct violation of the civil law, they are in violation of the law of this Church. . . . More than a century ago God clearly revealed unto His prophet Wilford
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LDS Church, but do adhere to the beliefs of a fundamentalist church that shares its historical roots with Mormonism.
The proper outcome of this issue has weighed heavily on the court for many months as it has examined, analyzed, and re-analyzed the numerous legal, practical, moral, and ethical considerations and implications of today’s ruling. It would be an easy enough matter for the court to do as the Defendant urges and find against the Plaintiffs on the question of religious cohabitation under the Statute, defaulting simply to Reynolds v. United States, 98 U.S. 145 (1879) without seriously addressing the much developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices, though such legislatures may sincerely believe that such criminal sanctions are in the best interest of society. The court has concluded that this would not be the legally or morally responsible approach in this case given the current contours of the constitutional protections at issue.8
The court notes that 133 years after Reynolds, non-Mormon counsel for Plaintiffs have vigorously advanced arguments in favor of the right of religious polygamists to practice polygamy (through private “spiritual” marriages not licensed or otherwise sanctioned by the state, a relationship to which the court will refer as “religious cohabitation”) that would have perhaps delighted Mormon Apostles and polygamy apologists throughout the period from 1852
Woodruff that the practice of plural marriage should be discontinued, which means that it is now against the law of God. Even in countries where civil or religious law allows polygamy, the Church teaches that marriage must be monogamous and does not accept into its membership those practicing plural marriage. Gordon B. Hinckley, “What Are People Asking About Us?,” Conference Report, Oct. 4, 1998, available at https://www.lds.org/general-conference/1998/10/what-are-people-asking-about-us?lang=eng. 8 The court is not impressed with Defendant’s characterization of Plaintiffs’ serious and substantial legal arguments in support of each of their Constitutional claims (Due Process, Equal Protection, Free Speech, Free Association, Free Exercise, and Establishment of Religion) as merely a “philosophical discussion about legal theories.” (Def.’s Reply Cross-Mot. Summ. J. 4 [Dkt. No. 73].)
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to approximately 1904. To state the obvious, the intervening years have witnessed a significant
strengthening of numerous provisions of the Bill of Rights, and a practical and morally
defensible identification of “penumbral” rights “of privacy and repose” emanating from those
key provisions of the Bill of Rights,9 as the Supreme Court has over decades assumed a general
posture that is less inclined to allow majoritarian coercion of unpopular or disliked minority
groups, especially when blatant racism (as expressed through Orientalism10/imperialism11),
religious prejudice, or some other constitutionally suspect motivation, can be discovered behind
such legislation.
It is worth noting the entrenched nature of an orientalist mindset among ruling elites
during the time period when Reynolds was decided, an attitude that surely reached Congress and
9 See, e.g. Griswold v. Connecticut, 318, U.S. 479, 481-84 (1965) (holding that the Constitution prohibits Government intrusion upon a marital right to privacy in the choice to use contraceptives by reference to the “penumbras” of various “specific guarantees in the Bill of Rights” which “create zones of privacy”).
10 See generally Edward W. Said, ORIENTALISM (Vintage Books 1979) (1978); see also Zachary Lockman, CONTENDING VISIONS OF THE MIDDLE EAST: THE HISTORY AND POLITICS OF ORIENTALISM 88-91 (2004) (“It should come as no great surprise that many Orientalists took for granted the superiority of Western civilization and the right of Europeans to rule over Asians and Africans: these assumptions were pervasive in nineteenth-century European culture. Though there were always those who rejected them and opposed colonialism and imperialism, most Europeans (and later Americans) sincerely embraced the notion of the ‘white man’s burden’—the idea that the civilized white Europeans had a duty to exercise firm but beneficent tutelage over what they regarded as the less advanced, child-like, darkskinned races and guide them toward civilization” (90).); id. at 182-214 (discussing the impact of Said’s theory of Orientalism and its aftermath in scholarly discourse, notably his view of the tendency of European powers in the nineteenth century and early twentieth century to view Middle Eastern, African, and Asian cultures as exotic but negatively so, through the power constructs of the colonizer and the colonized, as other and inferior, and the resulting influence of this underlying notion on the scholarly view of the Middle East, Africa and the Orient).
11 See, e.g., Nathan B. Oman, Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism, 88 WASH. U. L. REV. 661 (2011) (arguing that in response to Mormons’ natural law reasoning in support of polygamy, the Supreme Court in Reynolds took an approach rooted in “nineteenth-century ideals of progress and imperialism that were replacing the earlier, eighteenth-century ideals of universal reason and natural law” by “implicitly liken[ing] the federal government to the British Raj, bringing civilization through law to a benighted race” and using “the rhetoric of imperialism to reject [the Mormons’ natural law] arguments, tapping into international narratives of racial hierarchy and the progress of civilization,” an approach consistent with and possibly signaling a prelude for, American “imperial adventures at the turn of the [twentieth] century”).
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the United States Supreme Court as well, as discussed below.12 Professor Edward Said situated
British, French, and American views of Middle Eastern, African, and Asian cultures and society
(collectively, the “Orient”) in their cultural and imperial contexts, arguing that an ideology of the
racial inferiority of the latter peoples emerges in the resulting “Orientalism” of the West, which,
though idealizing the “Orient” in the arts as both exotic and romantic, see Said, supra note 10, at
98-99, also simultaneously denigrates it as socially and racially inferior, id. at 14-15, 92-110.13
Said posited that “so far as the West was concerned during the nineteenth and twentieth
centuries, an assumption had been made that the Orient and everything in it was, if not patently
inferior to, then in need of corrective study by the West.” Id. at 40-41. Indeed, “[t]he Orient was
viewed as if framed by the classroom, the criminal court, the prison, the illustrated manual.
Orientalism, then, is knowledge of the Orient that places things Oriental in class, court, prison, or
manual for scrutiny, study, judgment, discipline, or governing.” Id. at 41.14 Thus, Said located
12 The court finds the framework of “Orientalism” as analyzed by the late Professor Edward W. Said of Columbia University to be one potentially useful interpretive model, among others, in analyzing the thought and views of Americans in the late nineteenth century on this particular issue. Professor Nate Oman of William & Mary Law School has provided a similarly persuasive and related interpretive framework in his analysis of Reynolds based on the emerging American imperialism of the period.
13 For example, Said noted that
nearly every nineteenth-century writer (and the same is true enough of writers in earlier periods) was extraordinarily well aware of the fact of empire: this is a subject not very well studied, but it will not take a modern Victorian specialist long to admit that liberal cultural heroes like John Stuart Mill, Arnold, Carlyle, Newman, Macaulay, Ruskin, George Eliot, and even Dickens had definite views on race and imperialism, which are quite easily to be found at work in their writing. So even a specialist must deal with the knowledge that Mill, for example, made it clear in On Liberty and Representative Government that his views there could not be applied to India (he was an India Office functionary for a good deal of his life, after all) because the Indians were civilizationally, if not racially, inferior.
Said, supra note 10, at 14. 14 Moreover, and of particular relevance here, Said observed that “[t]he period of immense
advance in the institutions and content of Orientalism coincides exactly with the period of unparalleled European expansion; from 1815 to 1914 European direct colonial dominion expanded from about 35
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“the essence of Orientalism” in “the ineradicable distinction between Western superiority and
Oriental inferiority.” Id. at 42.
Because the United States Supreme Court’s 1879 decision in Reynolds v. United States
displays “the essence of Orientalism” through its explicit “distinction between Western
superiority and Oriental inferiority,” this is a relevant interpretative framework for evaluating the
“crusade” of nineteenth-century American society against Mormon polygamy and the merits of
the Reynolds decision today.15 Although the object of the decision was the Mormon Church, an
percent of the earth’s surface to about 85 percent of it. Every continent was affected, none more so than Africa and Asia.” Said, supra note 10, at 41.
15 See, e.g., Terryl Givens, THE VIPER ON THE HEARTH: MORMONS, MYTHS, AND THE CONSTRUCTION OF HERESY 130-37 (1997) (observing that Mormons were, for nineteenth-century American society, “a handy, ready-made Other” and an “Asian oddity” in an orientalist view); Martha M. Ertman, Race Treason: The Untold Story of America’s Ban on Polygamy, 19 COLUM. J. GENDER & L. 287, 290-291 (2010) (“Edward Said’s work on Orientalism offers some clues as to why [nineteenthcentury] cartoonists might have portrayed Mormon polygamists as Black and Asian. Viewing the discourse as Orientalist—essentially an ‘us/them’ rubric that primarily underpins colonialism—shows that antipolygamy discourse also spoke of Mormon polygamy in ‘us/them’ terms, treating polygamists not as people, but as problems to be solved. The most valuable insight Orientalism offers here is that framing a group as Oriental—an inherently backward, sensual, and therefore subordinated Other—makes its subjection inevitable. Thus the public imagination’s construction of Mormons as members of subject racial groups (Asian and Black, mainly) played a crucial role in subjecting Mormons to federal control.”). In fact, “Orientalism has much to contribute to the study of anti-Mormonism that historians are just beginning to see.” Christine Talbot, “Turkey is in our Midst:” Orientalism and Contagion in Nineteenth Century Anti-Mormonism, 8 J.L. & FAM. STUD. 363, 369-72 (2006) (“Early Orientalist anti-Mormonism depended in large part on the emergence of Orientalism in the context of European imperialism.”). Professor Said’s paradigm of Orientalism can be used to understand how American society “ordered the anomaly of Mormonism by placing it in familiar binaries of East/West and facilitated a particular understanding of the Mormon project that linked religious coercion, polygamy, and theocratic government together with ideas about race, progress, and empire. By showing that Mormons were ‘really’ Orientals in American clothing, Orientalism could make sense of the oxymoron of polygamous Americans.” Id. at 372. Thus,
[a]nti-Mormons mobilized Orientalist metaphors against Mormons to deploy a politics of race that could account for deeply rooted structures of religious and political authority that anti-Mormons found anti-democratic. Orientalist anti-Mormonism facilitated the links anti-Mormons made among religion, the practice of plural marriage, and political theocracy in a national milieu beset with ideas about race and racial progress. Orientalist tropes facilitated the explanatory triumvirate that connected Mormon religious authority to its peculiar domestic practices to its theocratic rule, and placed polygamic theocracy within the emerging discourses of race and racial difference. For anti-Mormons,
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institution virtually entirely comprised of white Americans and European immigrants, rather than
the “Orient” or a people or institution geographically unique thereto, Reynolds invokes this
framework because of the comparisons drawn by the Court between Mormons and non-European
peoples and their practices, and the Court’s views of the nature of the social harm posed by
Mormon practices. For the Reynolds Court, the comparison with non-European peoples and their
practices is precisely what made the Mormons’ practice of polygamy problematic.
With this interpretive framework in mind, it is perhaps a bitter irony of the history at
issue here that it is possible to view the LDS Church as playing the role of both victim and
violator16 in the saga of religious polygamy in Utah (and America). When the federal
Orientalist metaphors illustrated the Mormon betrayal of religious, marital, political, and racial legacies of America like no other.
Id. at 372-73. But, of course, “Scholars must approach anti-Mormon Orientalism with great caution” because “Mormons were manufactured into an ‘other,’ to be sure, but they were not, precisely, a colonized other.” Id. at 370-71. With this caveat, Orientalism can provide a powerful interpretive lens to the federal government’s treatment of the Mormons and shows “the process by which anti-Mormons made Mormons into a racial other against which it defined itself.” Id. at 372.
16 Plaintiffs have brought a “colorable claim” under the Establishment Clause, arguing that the 1973 Statute “was born out of a sectarian dispute of Mormons and former Mormons over the practice [of polygamy]—leading to the drafting of a law that allowed the state to threaten arrest for purely private relations of ‘spiritual’ spouses.” (Pls.’ Mem. Supp. Mot. Summ. J. 57 [Dkt. No. 50]); see also AxsonFlynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004) (defining “colorable” to mean that “the plaintiff must show a fair probability or likelihood, but not a certitude, of success on the merits”). Plaintiffs raise this claim in the context of statistics showing that “not only 62 percent of the general population [of Utah], but an estimated 90 percent of the 75 Utah House members are LDS, and . . . 27 of 29 senators.” (Id. at 51 (internal quotation marks and citations omitted).) Given this demographic context, Plaintiffs argue that the LDS Church is the de facto established religion in Utah, particularly on certain legislative issues on which the LDS Church officially takes a public stand, such as polygamy practiced by Mormon fundamentalists. (Id. at 56.)
As a consequence of the LDS Church’s long-standing rejection of polygamy as a doctrine, see supra note 7, and its policy to excommunicate those who practice it, Plaintiffs argue that the criminalization of religious cohabitation in Utah through the Statute subjects a targeted group— fundamentalist Mormons who still believe practicing polygamy to be a central tenet of the religion established by Joseph Smith and continued by Brigham Young—to “the moral dictates of the LDS Church” as legislated into criminal law on this issue. (Pls.’ Mem. Supp. Mot. Summ. J. 56 [Dkt. No. 50].) This claim seems historically well-founded. See, e.g., Shayna M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 CORNELL J.L. & PUB. POL’Y 101, 134-43 (2006) (“During the 1930s, LDS President Heber Grant announced that the Church would cooperate in criminal prosecutions of polygamists. In 1935, the Utah legislature—largely influenced by the LDS Church—made cohabitation a
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government targeted Mormon polygamy for elimination during the half century from the passage
of the Morrill Anti-Bigamy Act of 1862 through the Congressional inquiry into the seating of
Utah Senator Reed Smoot from 1904 to 1907,17 the “good order and morals of society” served as
an acceptable basis for a legislature, it was believed, to identify “fundamental values” through a
religious or other perceived ethical or moral consensus, enact criminal laws to force compliance
with these values, and enforce those laws against a targeted group. In fact, with the exception of
targeting a specific group, this has remained true in various forms (depending on the particular
right and constitutional provision at issue) until the Supreme Court’s decision in Lawrence v.
Texas, 539 U.S. 558 (2003) created ambiguity about the status of such “morals legislation.” But
the LDS Church was a victim of such majoritarian consensus concerning its practice of
polygamy18 as a foundational and identifying tenet of religious faith. See Reynolds, 98 U.S. at
criminal felony. Accordingly, the legal campaign against polygamists had shifted from the nineteenth century federal attack on the LDS Church to the twentieth century attack on the fundamentalists by not just state and local officials, but also by the LDS Church itself” (136).).
Plaintiffs outline the Establishment Clause problems of this state of affairs for fundamentalist Mormons and other religious polygamists under both the Larson and Lemon tests. (Id. at 49-57); see also Larson v. Valente, 456 U.S. 228 (1982); Lemon v. Kurtzman, 403 U.S. 602 (1971). Defendant, however, neither responds to any of Plaintiffs arguments relating to violations of the Establishment Clause nor even mentions the Establishment Clause in any of his filings. But aside from observing that Plaintiffs have raised this unrefuted colorable claim, the court need not engage in a more substantive analysis because the Free Exercise Clause (including its hybrid rights component) and the Due Process concerns raised by the Statute, which Plaintiffs’ counsel represented at oral argument would be the “narrowest ground upon which this court can find for the plaintiff[s]” (See Tr. Hrg. Jan. 17, 2013, at 47:23-25 [Dkt. No. 75]), provide an independent basis on which to resolve this constitutional dispute.
17 See Hardy, supra note 7, at 246-60. 18 Technically, “polygamy,” as the established practice among Latter-day Saints from as early as 1833 to the “Second Manifesto” in 1904, which finally put an end to the officially sanctioned practice in the Church, see Hardy, supra note 7, at 246-60 (describing the background and substance of the LDS Church’s 1904 “Official Statement” against polygamy), was only for select men either in the Church hierarchy or appointed by the Church hierarchy to take multiple wives. In other words, it was the institutionalized practice of “polygyny,” which is “the state or practice of having more than one wife or female mate at a time.” Miriam-Webster’s Collegiate Dictionary 962 (11th ed. 2007). Conversely, the practice of “polyandry,” which is “the state or practice of having more than one husband or male mate at one time,” id. at 961, was unknown outside of a few instances involving LDS Church founder Joseph Smith, the facts of which are in dispute among scholars of American and Mormon history and controversial among most Latter-day Saints today. See Todd Compton, IN SACRED LONELINESS: THE PLURAL WIVES OF JOSEPH SMITH, 4-7 (1997); cf. Brian C. Hales, 1 JOSEPH SMITH’S POLYGAMY:
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166-67 (noting that Congress was “deprived of all legislative power over mere opinion, but was
left free to reach actions which were in violation of social duties or subversive of good order”).
Although the court doubts that Lawrence actually must be interpreted to signal the end of the era
in which the “good order and morals of society” are a rational basis for majoritarian legislation,19
there is no question this was the prevailing view in the 1870s. And, in fact, the decades-long
“war”20 by the United States against the LDS Church—beginning with the Republican Party’s
HISTORY AND THEOLOGY 303-411 (2011); Richard Lloyd Anderson and Scott H. Faulring, “The Prophet Joseph Smith and His Plural Wives,” 10.2 FARMS REVIEW 67, 81 (1998) (reviewing Compton, IN SACRED LONELINESS and noting that “about one-fourth of Joseph [Smith]’s wives were married women, which Mormon historians have characterized as ‘polyandry’ in a general sense” but arguing from an apologetic perspective that “polyandry applies to Joseph Smith in a more limited sense, for with one exception, there is no reliable information on sexual relations after his being sealed to a married woman,” meaning that “[p]olyandry should indicate a category of Joseph’s sealings to some married women, without implying simultaneous sexual partners”)); see also Hardy, supra note 7, at 98-99 (discussing Mormon polemics against polyandry in the mid to late nineteenth century by Mormons, including John T. Caine, Utah’s territorial delegate, who do not seem to have been aware of Joseph Smith’s own approximately twelve polyandrous unions, or “sealings” in Mormon terms).
19 Cf. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting) (observing that the majority’s holding overturning Bowers v. Hardwick, 478 U.S. 186 (1986) and relying on Justice Stevens’ dissenting opinion in Bowers “effectively decrees the end of all morals legislation” because “[i]f, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the abovementioned laws [criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational basis review”). Despite Justice Scalia’s dour view in this comment, the court believes the “good order and morals of society” remain a rational basis for much majoritarian legislation under the States’ police power, though perhaps now subject to a more nuanced and equitable analysis than before Lawrence.
20 The “Utah War” of 1857 was the sole, short-lived physical manifestation of this conflict. See generally Ronald W. Walker, Richard E. Turley & Glen M. Leonard, MASSACRE AT MOUNTAIN MEADOWS 41-49 (2008) (providing general background to the “Utah War”). In sum,
[t]his armed conflict, known as the Mormon War of 1857 or the Utah War, was not about the right to practice polygamy, but rather the role of the Mormons’ theo-democratic ‘State of Deseret.’ [Brigham] Young and the LDS leadership were unwilling to recognize the federal government and its officials as sovereign for local matters, preferring to govern themselves as a state within the Union. In addition, the LDS’s failure to act in accordance with basic constitutional rights, including free press, separation of church and state, and due process, was completely at odds with the federal government and the American public.
After settling with the federal government, the LDS leadership softened its message. Young began to sound more like an extreme state’s-righter than a ruler of an independent country. Still, the federal conflict with the Mormons temporarily linked the south and the north, uniting them in the cause of quashing the Mormons. Democrats hoped that
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1856 platform of abolishing American chattel slavery and Mormon polygamy as the “twin relics
of barbarism”21 and culminating, depending on how one views the historical episode, with either
the Enabling Act in 1894 requiring that Utah ensure that “polygamist or plural marriages are
forever prohibited” in Utah as a condition for joining the Union as a State, or the seating of Utah
Senator Reed Smoot in 190722—was based on a majoritarian consensus that Mormons were
indeed “subversive of good order” in their practice of polygamy. Id.
But what exactly was the “social harm”23 identified by the Reynolds Court24 in the
Mormon practice of polygamy that made the practice “subversive of good order”? “Polygamy
has always been odious among the northern and western nations of Europe, and, until the
establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and
of African people.” Reynolds, 98 U.S. at 164.25 Though Professor Said did not cite Reynolds in
Buchanan’s federal intervention would demonstrate that their party’s adherence to states’ rights had limitations. One could support local democratic process and still act when faced with the unsavory Mormons.
Sigman, supra note 16, at 116-17 (discussing the Utah War generally at 114-18). 21 Gordon, supra note 2, at 55-83 (describing the political environment and legislative campaign
against the Mormon practice of polygamy culminating in the Morrill Act). 22 See generally Kathleen Flake, THE POLITICS OF AMERICAN RELIGIOUS IDENTITY: THE
SEATING OF SENATOR REED SMOOT, MORMON APOSTLE (2003). 23 “The Court claimed that the practice of plural marriage had always been ‘odious,’ yet ‘never
quite explained why [it] was a threat to the public well-being.’” Todd M. Gillett, Note, The Absolution of Reynolds: The Constitutionality of Religious Polygamy,” 8 WM & MARY BILL RTS. J. 497, 513 (2000) (quoting Orma Linford, The Mormons and the Law: The Polygamy Cases: Part I, 9 UTAH L. REV. 308, 341 (1964)).
24 The Waite Court, a majority of whom also four years later unanimously upheld Alabama’s morally indefensible anti-miscegenation statute in Pace v. Alabama, 106 U.S. 583 (1883), overruled by Loving v. Virginia, 388 U.S. 1 (1967).
25 By 1967, the Supreme Court thankfully had a different perspective of how racial considerations rendered legislation “odious”:
There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. . . . The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. . . . Over the years, this Court has consistently repudiated ‘distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ . . . There is patently no legitimate
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his text on Orientalism, this expression of the social harm identified in the Mormon practice of
polygamy aptly exemplifies the concept. A decade later, the Supreme Court clarified the social
harm further, explaining that Mormons were degrading the morals of the country through their
religious practices, such as polygamy, which, the Supreme Court declared, constituted “a return
to barbarism” and were “contrary to the spirit of Christianity.” Late Corp. of The Church of Jesus
Christ of Latter-day Saints v. United States, 136 U.S. 1, 49 (1890).
It was not just that white American Mormons were engaging in a practice thought to be
characteristic of Asiatic and African peoples who were believed, at the time, to be
civilizationally and racially inferior, cf. Said, supra note 10, at 15, but also, as a practice of such
peoples, “polygamy leads to the patriarchal principle,” which, “when applied to large
communities, fetters the people in stationary despotism”—another racist or orientalist
observation about this Mormon practice based in the “scientific” perspective of the day.
Reynolds, 98 U.S. at 166 (citing Professor Francis Lieber, “a prominent intellectual and founder of American political science”26); see also Gordon, supra note 2, at 119-45 (discussing
Congress’s underlying concern that the Mormon Church was using polygamy to secure direct
political dominance of the Territory of Utah (i.e. the “patriarchal principle”), and that this would
overriding purpose independent of invidious racial discrimination which justifies this classification. . . . There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. . . . These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. . . . Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” Loving, 388 U.S. at 10-12 (emphasis added) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). 26 Edwin Brown Firmage & Richard Collin Mangrum, ZION IN THE COURTS: A LEGAL HISTORY OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 155 (1988); Sigman, supra note 16, at 16869.
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continue in any future State of Utah). The practices were therefore objectionable because they
were characteristic of “oriental” races including “Asiatic” and “African” peoples, both
considered to be morally inferior based on such practices, and civilizationally inferior based on
“the patriarchal principle” attributed to their societies, not to mention racially inferior.
Accordingly, for the Reynolds Court, it was “impossible to believe that the constitutional
guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life,” referring to monogamous marriage. Reynolds, 98 U.S. at 165.27
Rather, “it is within the legitimate scope of the power of every civil government to determine
whether polygamy or monogamy shall be the law of social life under its dominion.” Id. at 166.
White American Christians, the Court implied, legislate monogamy. Id. (comparing Mormon
polygamy to Aztec or other indigenous ritual human sacrifice or the self-immolation of widows
on their husbands’ funeral pyres in the British Raj). The only characteristic connecting Mormon
27 This sentiment appears to have been shared by congressional representatives in enacting the Morrill Act at issue in Reynolds:
The favorable House Judiciary Committee Report accompanying the Morrill legislation in 1860 countered the Mormon free exercise argument with the contention that the framers of the Constitution and the First Amendment “did not mean to dignify with the name of religion a tribe of Latter Day Saints disgracing that hallowed name, and wickedly imposing upon t he credulity of mankind.” Without apology for the blatant inconsistency, that same Report went on to argue that the territorial incorporating ordinance violated the establishment clause because Mormonism was a religion: If the odious and execrable heresy of Mormonism can be honored with the name of religion, then the very attempt to incorporate the Church . . . is an effort to accomplish in Utah, what has nowhere else been effected by [federal] authority upon t his continent— the establishment of one form of religious worship to the exclusion of all others. L. Rex Sears, Punishing the Saints for Their “Peculiar Institution”: Congress and the Constitutional Dilemmas, 2001 UTAH L. REV. 581, 618 (quoting H.R. Rep. No. 36-83, at 2 (1860)). The court notes the irony in a congressional report determining that a particular sect in the body politic is an “odious and execrable heresy” as part of a criticism that the sect at issue is potentially violating the Establishment Clause.
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polygamy to these two incongruous examples is that polygamy, in the orientalist view of late
nineteenth-century America, was similarly attributed to Asiatic and African races.
In other words, the social harm was introducing a practice perceived to be characteristic of non-European people—or non-white races—into white American society.28 “The organization
of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It
is contrary to the spirit of Christianity and of the civilization which Christianity has produced in
the Western world.” Late Corp., 136 U.S. at 49. This observation in Late Corp.—unthinkable as
part of the legal analysis in a modern Supreme Court decision given the significant (and
appropriate) development in the interpretation of the protections afforded to religious minorities
under both the Establishment Clause and the Free Exercise Clause in the latter half of the twentieth century,29 and racial minorities under the Due Process and Equal Protection Clauses of
the Fourteenth Amendment, as also recognized in the latter half of the twentieth century—was
only a reiteration of the definitive position already taken by the Supreme Court more than a
decade earlier in Reynolds. Cf. 98 U.S. at 164. Such an assessment arising from derisive societal
views about race and ethnic origin prevalent in the United States at that time has no place in
discourse about religious freedom, due process, equal protection or any other constitutional
28 Although the alleged “individualized harm to women who were subjugated as wives . . . served as a rallying cry of the anti-polygamy movement” in the popular media of the nineteenth century, the “societal harm to the liberal, democratic state” supposedly posed by the patriarchal nature of the Mormons adoption of the supposedly “Asiatic and African” practice of polygyny “was the societal harm aspect that the Supreme Court relied upon in its Reynolds decision.” Sigman, supra note 16, at 168.
29 As late as 1946, however, the Supreme Court refreshed and relied on this orientalist language from Late Corp. in holding that fundamentalist Mormons had violated the Mann Act by transporting plural wives across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose,” where the religious cohabitation of fundamentalist Mormon “spiritual” marriages was held to be an “immoral purpose” of a type with prostitution and debauchery. Cleveland v. United States, 329 U.S. 14, 19 (1946) (“Polygamy is a practice with far more pervasive influences in society than the casual, isolated transgressions involved in the Caminetti case [of one transporting a woman in interstate commerce so that she should become his mistress or concubine]. The establishment or maintenance of polygamous households is a notorious example of promiscuity.”).
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guarantee or right in the genuinely and intentionally racially and religiously pluralistic society
that has been strengthened by the Supreme Court’s twentieth-century rights jurisprudence.
Unfortunately, despite this “orientalist” strain in both Reynolds and Late Corp., not to
mention myriad statements in the Congressional Record behind the legislation at issue in both of those cases30 and otherwise relating to the Mormon practice of polygamy spanning the half
century from approximately 1856 (essentially the beginning of the federal campaign against
polygamy) to 1907 (when Mormon Apostle Reed Smoot was finally seated in the Senate), the
Supreme Court has periodically continued to cite Reynolds in Free Exercise cases, most notably
in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872,
879 (1990). The court views Smith’s 1990 invocation of Reynolds in its analysis of the free
exercise claim at issue there—whether Oregon could deny unemployment benefits to those
dismissed from their jobs for the religiously motivated use of peyote, which was defined and
prohibited by state statute as a controlled substance—as unfortunate and unnecessary for the holding in Smith.31 That reference (and other similar citations to Reynolds by the Supreme Court
and the Tenth Circuit) can mistakenly give the impression of endorsing the morally repugnant reasoning in Reynolds.32 But Justice Scalia, writing for the majority in Smith, also provided the
30 See generally Mary K. Campbell, Mr. Peay’s Horses: The Federal Response to Mormon Polygamy, 1854-1887, 13 YALE J.L. & FEMINISM 29 (2001) (collecting comments from Congressional debates about the Morrill Act, the Edmunds Act, and the Edmunds-Tucker Act).
31 Also, the court happens to agree with then Justice Durrant of the Utah Supreme Court that “Smith has essentially rewritten the Free Exercise Clause into the Free Belief Clause” in “all but abandon[ing] the strict scrutiny standard in the context of free exercise claims, concluding that a generally applicable and neutral law need only satisfy rational basis review.” State of Utah v. Green, 2004 UT 76, ¶¶ 66, 70, 99 P.3d 820, 835-36 (Durrant, J., concurring) (emphasis in original).
32 Ironically, the court notes that even Reynolds itself contains the key to an analysis for upholding a ban on polygamy in the absence of the racist or orientalist considerations that instead unfortunately became integral to its holding. Specifically, in the process of discussing the moral inferiority of “Asiatic and of African people” to imply the “social harm” posed by Mormon polygamy, the Supreme Court somewhat tangentially engaged in what could almost be considered a proto-Glucksberg analysis (see Part II.B.1 below for a discussion of the Glucksberg framework for considering a claim based on substantive due process) of the asserted right to practice polygamy. Reynolds, 98 U.S. at 164-65
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way forward for this case in Smith’s identification of a “hybrid rights” framework ancillary to the
primary question of the legislature’s ability to enact “a neutral, generally applicable law to
religiously motivated conduct,” as discussed below. Smith, 494 U.S. at 881.
The court need not be entirely bound by the extremely narrow free exercise construct
evident in Reynolds; that case is, perhaps ironically considering the content of the current case,
not controlling for today’s ruling that the cohabitation prong of the Statute is unconstitutional. In
fact, the court believes that Reynolds is not, or should no longer be considered, good law, but
also acknowledges its ambiguous status given its continued citation by both the Supreme Court
and the Tenth Circuit as general historical support for the broad principle that a statute may
incidentally burden a particular religious practice so long as it is a generally applicable, neutral
law not arising from religious animus or targeted at a specific religious group or practice.
The court therefore defers to Reynolds as binding on the limited question of any potential
free exercise right to the actual practice of polygamy. In the religious cohabitation at issue in this
case, however, the participants have “consciously chose[n] to enter into personal relationship[s]
that [they] knew would not be legally recognized as marriage” even though they “used religious
terminology to describe [the] relationship[s].” State of Utah v. Holm, 2006 UT 31, ¶ 172, 137 P.3d 726, 773 (Durham, C.J., dissenting).33 They make no claim to having entered into legal
(citing legal authority as far back as the Statute of James, 1 James 1, ch. 11, § 2 (1603) for the proposition that polygamy has consistently been prohibited in Anglo-American law). Unfortunately, at the time Reynolds was decided in 1879 the posture of the Slaughter-House Cases, 83 U.S. 36 (1873) (and, perhaps, even Dred Scott v. Sandford, 60 U.S. 393 (1857)) still characterized the Supreme Court’s jurisprudence on the general concept of what would eventually become known as “substantive due process.” Accordingly, this was not a legal doctrine that could be adequately taken into consideration in Reynolds, though this doctrine is highly relevant for today’s case, as discussed below. (See Tr. Hrg. Jan. 17, 2013, at 47:23-25 [Dkt. No. 75] (Plaintiffs’ representing that the “narrowest ground upon which this court can find for the plaintiff[s] is under the Due Process Clause”).)
33 Justice Christine M. Durham served as Chief Justice of the Utah Supreme Court from 2002 to 2012 and will therefore be referred to as Chief Justice Durham throughout in reference to her dissenting opinion in Holm. Current Chief Justice Matthew B. Durrant will be referred to as Justice Durrant in connection with the Holm and Green decisions.
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unions by virtue of their religious cohabitation, having instead “intentionally place[d] themselves outside the framework of rights and obligations that surround the marriage institution.” Id. In light of this, despite any applicability of Reynolds to actual polygamy (multiple purportedly legal unions), the cohabitation prong of the Statute is not operationally neutral or of general applicability because of its targeted effect on specifically religious cohabitation. It is therefore subject to strict scrutiny under the Free Exercise Clause and fails under that standard. Also, in these circumstances, Smith’s hybrid rights exception requires the court to apply a form of heightened scrutiny to Plaintiffs’ constitutional claims, including their Due Process claim, since each of those constitutional claims are “reinforced by Free Exercise Clause concerns,” 494 U.S. at 882,34 in light of the specifically religious nature of Plaintiffs’ cohabitation. Alternatively, following Lawrence and based on the arguments presented by Defendant in both his filings and at oral argument, the State of Utah has no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue here; thus, the cohabitation prong of the Statute is facially unconstitutional, though the broader Statute survives in prohibiting bigamy.
34 For application of the Smith hybrid rights paradigm in the Tenth Circuit, see Grace United Methodist Church v. City of Cheyenne Board of Adjustment, 451 F.3d 643, 655 (10th Cir. 2006) (explaining that Smith “carved out an exception for ‘hybrid rights’ claims, holding that a party could establish a violation of the free exercise clause even in the case of a neutral law of general applicability by showing that the challenged governmental action compromised both the right to free exercise of religion and an independent constitutional right”); Axson-Flynn v. Johnson, 356 F.3d 1277, 1295-96 (10th Cir. 2004) (explaining that under the Smith hybrid rights exception, “when a free exercise claim is coupled with some other constitutional claim (such as a free speech claim), heightened scrutiny may be appropriate” but that the Tenth Circuit “will only apply the hybrid-rights exception to Smith where the plaintiff establishes a fair probability, or a likelihood, of success on the companion claim”); Swanson by & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 & n.5 (10th Cir. 1998) (holding that “the Smith hybrid-rights theory . . . at least requires a colorable showing of infringement of recognized and specific constitutional rights”).
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ANALYSIS I. NO GENUINE DISPUTE AS TO ANY MATERIAL FACT
Rule 56(a) of the Federal Rules of Civil Procedure requires the court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Under this standard for summary judgment, the moving party must first establish the absence of a genuine issue of material fact on the claims or elements as to which it is moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1168-1169 (10th Cir. 2010) (“The moving party has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.”) (internal quotation marks removed). Then, “in response to a properly supported motion for summary judgment, a non-movant must produce sufficient evidence for a reasonable trier of fact to find in its favor at trial on the claim or defense under consideration.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Thus, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249.
Ultimately, Defendant only genuinely disputes one fact presented by Plaintiffs as material to their motion. (See Def.’s Mem. Supp. Cross-Mot. and Resp. 2 [Dkt. No. 56] (responding to Plaintiffs’ allegation that “state officials publicly denounced the Browns as committing crimes
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every night on television” by explaining that “I never stated publicly that I would or would not prosecute the Browns, though I am aware that others in my office may have responded to the press to that effect (or at least the press reported that they did)”.) As Plaintiffs observe, however, their “factual representation refers to ‘state officials,’ and thus is neither rebutted nor disproven by a representation concerning Mr. Buhman individually, even if accepted as true.” (Pls.’ Reply Mot. Summ J. 4 [Dkt. No. 71].) The court agrees. Moreover, Defendant proffered no evidence that would be admissible at a trial either in support of his own motion or in opposition to Plaintiffs’ motion. The academic discussion of the “social harm” attributable to fundamentalist Mormon polygamy first presented in Defendant’s Reply brief does not constitute the “sufficient evidence” required “for a reasonable trier of fact to find in [his] favor at trial on the claim . . . under consideration.” Nahno-Lopez, 625 F.3d at 1283; Anderson, 477 U.S. at 249. Accordingly, the court finds no genuine dispute of material fact that would preclude the court from engaging the mechanism of summary judgment in this case. As analyzed below, the court finds that Plaintiffs are entitled to summary judgment as a matter of law. II. COHABITATION IN THE 1973 STATUTE
A. The Utah Supreme Court’s Interpretation of “Marry” in the Statute Plaintiffs challenge the constitutionality of the Statute on multiple grounds, arguing both that the Statute is facially unconstitutional and unconstitutional as applied to the Plaintiffs. The Statute provides that “[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.” Utah Code Ann. § 76-7-101(1) (2013). “It is axiomatic that state courts are the final arbiters of state law.” United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir. Okla. 2004) (citing Mullaney v. Wilbur, 421 U.S. 684 (1975)). The court is therefore bound
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by the Utah Supreme Court’s interpretation of the Statute, see R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1982), most recently in State of Utah v. Holm, 2006 UT 31, 137 P.3d 726.
In Holm, the Utah Supreme Court affirmed the defendant’s conviction for unlawful sexual conduct with a minor under section 76-5-401.2 of the Utah Code35 as well as bigamy under the Statute, but did not find occasion to construe the phrase “or cohabits with another person” because it rested its holding as to the bigamy conviction on its interpretation of the term “marry” and the phrase “purports to marry.” 2006 UT at ¶ 33, 137 P.3d at 737 & n.7.36 Construing “purports to marry” in the Statute, the Utah Supreme Court analyzed the definition of “marry” in Black’s Law Dictionary, including “discrepancies between the definitions provided for ‘marriage’ and ‘polygamy’ in the seventh and eighth editions of Black’s Law Dictionary” (opting generally for the definitions provided in the seventh edition), id. at ¶ 20 n.5, and the use of the word “marriage” in other sections of the Utah Code, id. at ¶¶ 23-25, and held that “the term ‘marry,’ as used in the bigamy statute, includes both legally recognized marriages and those that are not state-sanctioned.” Id. at ¶ 18, 137 P.3d at 733. “[T]he plain meaning of the term ‘marry,’ as it is used in the bigamy statute, supports our conclusion that it encompasses both marriages that are legally recognized and those that are not.” Id. at ¶ 21, 137 P.3d at 734. Because the Statute is unambiguous, the Court held, it was not necessary to “look to other
35 This fact alone distinguishes Holm from the present case as there is no allegation or evidence that Plaintiffs have committed sexual assault with a minor or any other illegal or criminal activity aside from allegedly violating the Statute.
36 The Court noted that Because we conclude that Holm’s behavior violates the “purports to marry” prong of the bigamy statute, we need not reach Holm’s arguments relating to the validity of the cohabitation prong. As indicated above, the jury convicted Holm under both prongs of the bigamy statute, and if, as we conclude, Holm was properly convicted pursuant to the “purports to marry” prong of the bigamy statute, it is of no consequence whether the cohabitation prong was properly applied to him. Holm, 2006 UT at ¶ 33 n.7, 137 P.3d at 737.
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interpretive tools such as legislative history.” Id. at ¶ 16, 137 P.3d at 733. Nevertheless, the Court also found support for its interpretation in those sources. Id. at ¶ 26, 137 P.3d at 735.37
Thus, the Court held that it was “constrained to conclude that an unlicensed, solemnized
marriage can serve as a subsequent marriage that violates the bigamy statute.” Id. In other words,
“it is clear that the Legislature intended ‘marry’ to be construed to include marriages that are not
state-sanctioned.” Id. at ¶ 22, 137 P.3d at 734. This, in turn, according to the Court, means that
“the bigamy statute does not require a party to enter into a second marriage (however defined) to
run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s
terms.” Id. (emphasis added). This broad interpretation of “marry” in the Statute, which itself
includes cohabitation, is the focus of this section of the court’s decision together with the
cohabitation prong; the “purports to marry” prong is addressed below in Part III in its relation to
the 1894 Utah Enabling Act and Irrevocable Ordinance in the Utah State Constitution.
As Plaintiffs correctly note, the Utah Supreme Court’s interpretation of “marry” in the
Statute in Holm means that the Statute “criminalizes not only privately ‘marrying’ someone after
having legally married, but also merely cohabiting with a second adult partner after having
married a first partner.” (Pls.’ Mem. Supp. Mot. Summ. J. 9 [Dkt. No. 50].) This, argue
37 See Holm, 2006 UT ¶¶ 40-48, 137 P.3d at 739-41 (reviewing legislative history of the 1892 Territorial Anti-Polygamy Act (later referred to in the Utah Constitution, art. XXIV, § 2, observing the “continuing vitality” of that territorial law), Congress’s Utah Enabling Act of 1894 requiring as a condition for statehood that the Utah Constitution include an “irrevocable ordinance” that “polygamous or plural marriages are forever prohibited,” and the “irrevocable ordinance” itself as contained in the 1895 Utah Constitution, art. III, § 1). In this analysis, the Court does not appear to have seriously considered Chief Justice Durham’s dissenting observation that “the ‘well-documented history’ to which the majority refers ended long before 1973, when section 76-7-101 was originally enacted.” Holm, 2006 UT at ¶ 140, 137 P.3d at 762 (Durham, C.J., dissenting) (citing State v. Tuttle, 730 P.2d 630, 632 (Utah 1986) for the fact that “in 1973 our legislature ‘repealed wholesale all the prior substantive criminal statutes . . . and enacted a sweeping new penal code that departed sharply from the old common law concepts’”). Thus, noted Chief Justice Durham, “[t]he majority fails to explain how that history could be relevant to our interpretation of section 76-7-101.” Id.
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Plaintiffs, is unconstitutional under numerous independent constitutional provisions, as discussed below.
B. Strict or Heightened Scrutiny Though the court is bound by the Utah Supreme Court’s interpretation of the Statute in Holm (with the particular relevance of its broad construction of the word “marry”), it is not bound by that Court’s denial of Holm’s federal constitutional claims. See Holm, 2006 UT at ¶¶ 49-87, 137 P.3d at 741-48 (rejecting Holm’s federal Free Exercise, Due Process, and Freedom of Association claims). At oral argument, Plaintiffs suggested that “the narrowest ground upon which this court can find for the plaintiff is under the Due Process Clause.” (Tr. Hrg. Jan. 17, 2013, at 47:24-25 [Dkt. No. 75].) The court will therefore first examine the constitutionality of the Statute, as interpreted by the Utah Supreme Court in Holm, under the Due Process Clause of the Fourteenth Amendment. 1. Heightened Scrutiny under the Glucksberg Framework In its “Due Process Clause,” the Fourteenth Amendment provides that a State shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Supreme Court has held that “[t]he Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719 (1997). Rather, the Due Process Clause has been held “to cover a substantive sphere as well, ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’” County of Sacramento v. Lewis, 523 U.S. 833 (U.S. 1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Under this doctrine of “substantive due process,” the Fourteenth Amendment “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the
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infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original).38 This “heightened protection,” Glucksberg, 521 U.S. at 720, or “heightened scrutiny”—under which any infringement of a fundamental liberty interest must be found to be narrowly tailored to serve a compelling state interest—is “only” applied to “fundamental rights” under the substantive due process analysis. See Lawrence, 539 U.S. at 593 (Scalia, J., dissenting) (emphasis in original).
The Supreme Court has outlined the framework for evaluating a claim to the existence of a fundamental right. This “established method of substantive-due-process analysis has two primary features.” Glucksberg, 521 U.S. at 720. First, the asserted “fundamental right” (or “fundamental liberty”) must be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. (internal citations and quotations omitted). Second, the analysis requires “a ‘careful description’ of the asserted fundamental liberty interest.” Id. As a practical matter, the Tenth Circuit applies this Glucksberg framework by addressing the second prong first to narrow the inquiry: “a plaintiff asserting a substantive due process right must both (1) carefully describe the right and its scope; and (2) show how the right as described fits within the Constitution’s notions of ordered liberty.” Seegmiller v. Laverkin City, 528 F.3d 762, 769 (10th Cir. 2008); cf. Williams v. Att’y Gen. of Ala. (“Williams IV”), 378 F.3d 1232, 1239 (11th Cir. 2004) (“First, in analyzing a request for recognition of a new fundamental right, or extension of an existing one,
38 The court notes Justice Scalia’s somewhat opposite framing of this in his Lawrence dissent: “The Fourteenth Amendment expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided.” Lawrence, 539 U.S. at 592 (Scalia, J., dissenting) (emphasis in original). But his analysis still returns to the same heightened scrutiny standard for evaluating infringements of fundamental liberty interests: “Our opinions applying the doctrine known as ‘substantive due process’ hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.” Id. at 593 (emphasis in original).
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we must begin with a careful description of the asserted right.”) (internal quotation marks and citation omitted).
If the narrowly asserted right qualifies as “fundamental” based on this two-pronged Glucksberg analysis, then “only heightened scrutiny” of the state’s interference with such right would be “appropriate.” Seegmiller, 528 F.3d at 771 (quoting Glucksberg, 521 U.S. at 721 for the content of this “heightened protection”—that “the government may not infringe a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest”) (internal quotation marks omitted). If the asserted right does not qualify as “fundamental” under this analysis, “rational basis review” applies, under which “the state may regulate an interest pursuant to a validly enacted state law or regulation rationally related to a legitimate state interest.” Id. (quoting Reno v. Flores, 507 U.S. 292, 305 (1993) (“[N]arrow tailoring is required only when fundamental rights are involved.”)). The court first considers Plaintiffs’ claim to the heightened protection afforded under the Glucksberg substantive due process analysis and finds that prevailing precedent binding on this court precludes the application of heightened scrutiny under the Glucksberg framework, both for polygamy and religious cohabitation.39
a. Polygamy. Preliminarily, the court finds that “polygamy” fails to qualify as a fundamental right under the Glucksberg analysis. In truth, the court disagrees with Defendant’s assertion that Plaintiffs are arguing that the fundamental rights analysis (under Lawrence) requires “the State to sanction their polygamous marriages.” (Def.’s Mem. Supp. Cross-Mot. and
39 The court will in turn consider the Statute’s constitutionality under the rational basis review standard in Part II.C below.
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Resp. 9 [Dkt. No. 56].)40 To the contrary, “[t]he Browns have not questioned the right of the state to limit its recognition of marriage and to prosecute those citizens who secure multiple marriage licenses from the state.” (Pls.’ Opp. Def.’s Mot. Summ. J. 26 [Dkt. No. 72].) But in the interest of completeness on this issue of such acute importance in the State of Utah, the court briefly considers actual “polygamy” under the Glucksberg framework before moving on to the “carefully described” liberty interest in religious cohabitation that Plaintiffs are claiming.
As noted above, and perhaps somewhat surprisingly given the court’s introductory comments about Reynolds, the court finds that there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right, see Glucksberg, 521 U.S. at 721; Seegmiller, 528 F.3d at 769, no “fundamental right” exists to have official State recognition or legitimation41 of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. See Utah Code Ann. § 76-7-101. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (internal citations omitted).
Glucksberg concerned a challenge to a statute in the State of Washington prohibiting assisted suicide, including physician-assisted suicide. In its analysis, the Supreme Court carefully described the asserted fundamental liberty interest as “whether the ‘liberty’ specially protected
40 Defendant claims that “[i]n Plaintiffs’ Memorandum in Support of their Motion for Summary Judgment they assert that Lawrence v. Texas, 539 U.S. 558 (2003), is to be read to require the State to sanction their polygamous marriages.”
41 For example, through provision of a marriage license or application of the system of laws and protections that surround legal marriage, which is a “system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.” Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985).
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by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” Id. at 723. The Court referred to the 700 year history of the prohibition of suicide in Anglo-American law (as well as considering other countries’ posture toward it), beginning with evidence of its prohibition as early as the thirteenth century in Henry de Bracton’s treatise on the Laws of England. Id. at 711 (quoting 2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968)).42 Sir William Blackstone observed that this was still integral to the common law in the eighteenth century in his Commentaries on the Laws of England, which also was “a primary legal authority for 18th and 19th century American lawyers.” Id. at 712. “For the most part, the early American colonies adopted the common-law approach.” Id. at 712-19 (discussing the prohibition in the American colonies, early State statutes, and the development of statutes—beginning as early as 1828 in New York—explicitly prohibiting assisted suicide). “By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide.” Id. at 715. Finally, “the Model Penal Code also prohibited ‘aiding’ suicide, prompting many States to enact or revise their assisted-suicide bans.” Id. at 715-16.
The Court concluded that to identify a fundamental right to assisted suicide, the Court “would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.” Id. at 723.43 The Court also declined to consider the
42 In fact, the Court traced the prohibition on suicide to its ecclesiastical roots before the emergence sometime in the twelfth century of the common law, noting its prohibition in 673 at the Council of Hereford and then reaffirmed by King Edgar in 967. Id. at n.9 (citing J. Baker, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 11 (2d ed. 1979) and G. Williams, THE SANCTITY OF LIFE AND THE CRIMINAL LAW 257 (1957)).
43 An overriding concern of the Supreme Court in the evaluation of substantive due process claims is that “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Glucksberg, 521 U.S. at 720. The top priority is allowing the democratic process to address these issues. “We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the
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substantive due process interest at issue framed much more broadly as “reflecting a general tradition of ‘self-sovereignty’” or “that the ‘liberty’ protected by the Due Process Clause includes ‘basic and intimate exercises of personal autonomy.’” Id. at 724 (quoting Brief of Respondents 12). Instead, the Court returned the focus of the analysis to the “careful description” of the asserted fundamental interest, which it framed as “whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance.” Id. at 724. In light of its historical analysis, the Court observed that “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728. Thus, the Court held that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.” Id.
The prohibition against polygamy has similarly ancient roots in Anglo-American law. The court need not look as far back as the Council of Hereford in 673 A.D. in this fundamental rights analysis; it is sufficient to trace the prohibition to the 1603 Statute of James, “An act to restrain all Persons from Marriage until their former Wives and former Husbands be dead.” 1 James 1, ch. 11, § 2 (quoted in Model Penal Code § 230.1 cmt. 1, Background at 371 n.1 (1980)). “Prior to that, problems of plural marriage were dealt with exclusively by the ecclesiastical authorities.” Model Penal Code § 230.1 cmt. 1, Background at 371-72. As Chief Justice Durham of the Utah Supreme Court observed, the policy behind this ancient prohibition of polygamy seems to have centered on the often fraudulent nature of a polygamous marriage: “Such an act defrauds the state and perhaps an innocent spouse or purported partner.” Holm, 2006 UT at ¶ 168, 137 P.3d at 771 (Durham, C.J., dissenting). Moreover, and with increased relevance for the prohibition as carried forward into the laws of most States of the Union, “[i]t
liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.” Id.
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also completely disregards the network of laws that regulate entry into, and the dissolution of, the legal status of marriage, and that limit to one the number of partners with which an individual may enjoy this status.” Id.
The text of the Statute of James substantiates this, providing as justification for the enactment that “divers evil desposed Persons being married, run out of one County into another, or into Places where they are not known, and there become married, having another Husband or Wife living, to the great Dishonour of God, and utter undoing of divers honest Men’s Children. . . .” 1 James 1, ch. 11, § 2, art. I (emphasis added). In his Commentaries on the Laws of England, Sir William Blackstone—so important for the American colonists in continuing the institution of England’s common law—observed that “bigamy” or “polygamy” was “a felonious offense with regard to this holy estate of matrimony.” William Blackstone, 4 COMMENTARIES *163-65.44 As with suicide, the American colonies adopted this English approach to polygamy and most of them prohibited it from the beginning. See generally Model Penal Code § 230.1 cmt. 1, Background at 370-75. As states joined the Union, they either enacted their own anti-bigamy statutes derived from this English precedent or adopted territorial prohibitions on the practice of polygamy, as did Utah by referring in its 1895 Constitution to the 1892 territorial law prohibiting polygamy, see UTAH CONST. art. XXIV, § 2. Id. The court therefore finds that, as with assisted suicide, no fundamental right exists under the Glucksberg framework to engage in polygamy; that is, to enter into a second purportedly legal matrimonial union when already legally married. Many people who currently practice “polygamy,” however, including Plaintiffs, do not have any
44 The court notes that Blackstone’s treatment, however, already exhibits (as early as the 1760s) an orientalist understanding of polygamy: “For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations, the fallaciousness of which has been fully proved by many sensible writers; but in northern countries the very nature of the climate seems to reclaim against it; it never having obtained in this part of the world, even from the time of our German ancestors. . . .” Blackstone at *163-64.
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expectation that their purported marriages will be legally recognized even though they describe their often religiously motivated cohabitation as “marriage,” “polygamy,” or “plural marriage.”
b. Religious Cohabitation. The relationship at issue in this lawsuit, which the court has termed “religious cohabitation,” has been aptly described by then Chief Justice Durham of the Utah Supreme Court. Religious cohabitation occurs when “[t]hose who choose to live together without getting married enter into a personal relationship that resembles a marriage in its intimacy but claims no legal sanction.” Holm, 2006 UT at ¶ 172, 137 P.3d at 773 (Durham, C.J., dissenting). Those who choose to live in these relationships “intentionally place themselves outside the framework of rights and obligations that surrounds the marriage institution.” Id. A defining characteristic of such cohabitation as lived by Plaintiffs and those similarly situated is that, in choosing “to enter into a relationship that [they know] would not be legally recognized as marriage, [they use] religious terminology to describe the relationship,” and this terminology— “‘marriage’ and ‘husband and wife’—happens to coincide with the terminology used by the state to describe the legal status of married persons.” Id. Stated succinctly, Plaintiffs “appropriate the terminology of marriage, a revered social and legal institution, for [their] own religious purposes,” though not purporting “to have actually acquired the legal status of marriage.” Id. at ¶ 123, 137 P.3d at 773. But this religious cohabitation also fails to qualify as a fundamental right or fundamental liberty interest triggering heightened scrutiny under the Glucksberg substantive due process analysis.
Plaintiffs provide the “careful description” of the asserted fundamental right—the required first step of the analysis in the Tenth Circuit, see Seegmiller, 528 F.3d at 769—as follows: “a fundamental liberty interest in choosing to cohabit and maintain romantic and spiritual relationships, even if those relationships are termed ‘plural marriage’.” (Pls.’ Mem.
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Supp. Mot. Summ. J. 11 [Dkt. No. 50].) Plaintiffs truncate the Glucksberg analysis by reference to Lawrence, which they argue establishes “a fundamental liberty interest in intimate sexual conduct” (Pls.’s Opp. Def.’s Mot. Summ. J. 19 n.16 [Dkt. No. 72]), thus prohibiting the state “from imposing criminal sanctions for intimate sexual conduct in the home.” (Pls.’ Mem. Supp. Mot. Summ. J. 9 [Dkt. No. 50].) “Lawrence was the latest iteration in a long series of constitutional decisions amplifying a core principle: the Due Process Clause circumscribes and in some cases virtually forbids state intervention in private relationships and conduct.” (Pls.’s Opp. Def.’s Mot. Summ. J. 22 [Dkt. No. 72].)
Plaintiffs’ arguments about the meaning and implications of Lawrence for the State’s ability to criminalize their private conduct of religious cohabitation are very persuasive. But Lawrence provides less specific guidance than would be desirable, primarily because the enigmatic decision eschews a formal, technical analysis of the level of detail modeled in the Glucksberg framework for analyzing claims to substantive due process protecting carefully described fundamental rights. Unfortunately, the decision also never explicitly identifies the standard of review applied and, though providing a substantive due process discussion that could fairly easily support an interpretation that heightened scrutiny was indeed applied, the Court used some terminology arguably characteristic of rational basis review in ruling Texas’ anti-sodomy statute unconstitutional. See Lawrence, 539 U.S. at 586 (Scalia, J., dissenting) (arguing that the majority applied “an unheard of form of rational basis review” to strike down Texas’ antisodomy law). But see Lawrence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1917 (2004) (arguing that “the strictness of the Court’s standard in Lawrence, however articulated, could hardly have been more obvious” and to assume that rational basis review was applied “requires overlooking passage after passage
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in which the Court’s opinion indeed invoked the talismanic verbal formula of substantive due process but did so by putting the key words in on unusual sequence of another”).
Instead, the Supreme Court in Lawrence offered a high-level contemplation of a much broader fundamental value, a deeper unifying principle, that it held to transcend specific narrowly defined individual fundamental rights in the “substantive reach of liberty under the Due Process Clause” and expressed in its long line of substantive due process cases. Lawrence, 539 U.S. at 564. That is, in overturning Bowers v. Hardwick, 478 U.S. 186 (1986), the Court explained that Bowers had incorrectly upheld an anti-sodomy statute because the Court had “failed to appreciate the extent of the liberty at stake” and had defined the asserted fundamental right at issue in Bowers too narrowly simply as “a fundamental right [of] homosexuals to engage in sodomy.” Id. at 567-68. “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 568. Rather, the Court in Lawrence identified a deeper liberty interest that ran through its substantive due process line of cases, unifying them by reference to this underlying commitment to liberty itself:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. Id. at 562. The Court thus framed the inquiry as “whether the petitioners were free as adults to engage in the private conduct [of homosexual sodomy] in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Id. at 564. Anti-sodomy statutes such as those in Bowers and Lawrence, and similar laws “that purport to do no more than
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prohibit a particular sexual act,” invariably “have more far-reaching consequences, touching
upon the most private human conduct, sexual behavior, and in the most private of places, the
home.” Id. at 567. Thus, “[t]he statutes do seek to control a personal relationship that, whether or
not entitled to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals.” Id. (emphasis added). Moreover, the Court acknowledged that
“adults may choose to enter upon this relationship in the confines of their homes and their own
private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id.45
After broadening the actual liberty interest at issue in Bowers and Lawrence through this
redefinition, the Lawrence Court then implicitly seemed to loosely follow the Glucksberg
framework for analyzing substantive due process claims—though without ever citing to or
referencing Glucksberg—by proceeding to engage in a brief historical analysis of the asserted
liberty interest, finding “the historical grounds relied upon in Bowers” to be “more complex than
the majority opinion and the concurring opinion . . . indicate.” Id. at 567-71. In this process, the
Court addressed the historical analysis in Bowers, while reiterating the broader liberty interest it
considered to be at issue, in language that has become one of the key messages of Lawrence:
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may
45 The Court was careful to emphasize that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578.
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use the power of the State to enforce these views on t he whole society through operation of the criminal law.
Id. at 571 (emphasis added). The Court then determined that in the applicable historical analysis,
the “laws and traditions in the past half century are of most relevance,” id. at 571-72, including
taking into account the “moribund character” of such laws based on an observable “history” or
“pattern of nonenforcement with respect to consenting adults acting in private.” Id. at 572-73.
Even if not enforced, criminalizing such private, consensual conduct, is an “invitation to subject
homosexual persons to discrimination both in the public and the private spheres” and thus even
the continued existence of Bowers “as precedent demeans the lives of homosexual persons.” Id.
at 575. As a result, the Court overturned Bowers, holding that Justice Stevens’ dissenting analysis “should have been controlling in Bowers and should control here.” Id. at 578.46
Lawrence involved “two adults who, with full and mutual consent from each other,
engaged in sexual practices common to a homosexual lifestyle” and “are entitled to respect for
their private lives.” Id. Accordingly, based on the broader liberty analysis, the Court held that
[t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [Planned Parenthood of Southeastern Pa. v.] Casey, 505 U.S. [833], 847 [(1992)] . . . . T he Texas statute
46 The Court quoted the following portion of Justice Stevens’ dissent in Bowers:
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a p articular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.
Lawrence, 539 U.S. at 577-78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)). 39

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furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Id. (emphasis added). This reference to the Texas statute furthering “no legitimate state interest which can justify its intrusion into the personal and private life of the individual” is what seems to frame the holding in the language of rational basis review rather than the heightened scrutiny implied by the entirety of the preceding analysis. See Lawrence, 539 U.S. at 586 (Scalia, J., dissenting); Williams v. Att’y Gen. of Ala. (“Williams IV”), 378 F.3d 1232, 1236 (11th Cir. 2004) (holding that Lawrence declined the invitation “to recognize a fundamental right to sexual privacy” and that it “is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right—whether to homosexual sodomy specifically or, more broadly, to all forms of sexual intimacy” because Lawrence “did not employ fundamental-rights analysis” but rather “it ultimately applied rational-basis review, rather than strict scrutiny, to the challenged statute”). Despite the moral and philosophical appeal of Lawrence’s discussion about the Fourteenth Amendment’s commitment to a concept of liberty that “protects the person from unwarranted government intrusions into a dwelling or other private places” because it “presumes an autonomy of self that includes . . . certain intimate conduct,” Lawrence, 539 U.S. at 562, and therefore “gives substantial protection to adult persons in deciding how to conduct their lives in matters pertaining to sex,” id. at 571, and the resulting inherent persuasiveness of Plaintiffs’ arguments that this broadly outlined substantive due process liberty interest applies to the religious cohabitation at issue here, the court is bound by the Tenth Circuit’s interpretation of Lawrence in Seegmiller. It therefore need look no further than Seegmiller to find that such religious cohabitation does not qualify for heightened scrutiny under the substantive due process analysis in the Tenth Circuit.
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In Seegmiller, the Tenth Circuit upheld the District Court’s denial of the plaintiff’s substantive due process claim asserting the existence of a “fundamental liberty interest to engage in a private act of consensual sex.” 528 F.3d at 770. Seegmiller is factually distinguishable from this case, however, and is therefore not directly controlling. The Seegmiller plaintiff was a police officer who had been reprimanded for having an affair with another police officer who was not a member of her department while the two of them both attended an out-of-town training seminar paid for in part by the city. Id. at 764. Her conduct resulted in an investigation and oral reprimand (after she refused to sign the written reprimand presented to her by the city manager) by the city council “based on the provision of the law enforcement code of ethics requiring officers to keep their private life unsullied as an example to all and to behave in a manner that does not bring discredit to the officer or the agency.” Id. at 765 (internal quotation marks and citation omitted). The reprimand stated that the plaintiff had “allowed her personal life to interfere with her duties as an officer by having sexual relations with an officer” from the county while at the training seminar paid for in part by the city. Id. at 766. Ultimately, the Tenth Circuit in Seegmiller held that heightened scrutiny did not apply because it concluded that no fundamental right to sexual privacy exists. Id. at 771. Rather, the city council’s actions easily satisfied rational basis review, the Tenth Circuit held, based on the well-settled principle that “a police department may . . . place demands upon the members of the police force which have no counterpart with respect to the public at large” in the interest of good order within the department, the police department’s reputation in the community, and the general task of keeping the peace. Id. at 772 (citing Kelly v. Johnson, 425 U.S. 238, 245 (1976) and Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983)) (internal quotation marks and alterations omitted). This factor is not present here.47
47 The court finds that all other police officer cases are similarly distinguishable, including Potter 41

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Although Seegmiller is factually distinguishable and therefore not directly controlling, the court cannot ignore the Tenth Circuit’s specific substantive due process analysis of the asserted “fundamental liberty interest in sexual privacy.” Id. at 769. In particular, the Tenth Circuit went out of its way to interpret Lawrence in this context. Following the Eleventh Circuit’s treatment of Lawrence in Williams IV, the Tenth Circuit in Seegmiller observed that “[a] broadly-defined ‘right to sexual activity’ will clearly not suffice. The Supreme Court has never identified such a right at that level of generality.” Id. at 770 (quoting Williams IV, 378 F.3d at 1236 (explaining that “the [Supreme] Court has never indicated that the mere fact that an activity is sexual and private entitled it to protection as a fundamental right”)). Although Seegmiller initially, though curiously in light of its later treatment of Lawrence, conceded that “no one disputes a right to be free from government interference in matters of consensual sexual privacy,” the Court then categorically rejected the plaintiff’s claim to the existence of a fundamental right to engage in private consensual sexual conduct. Id. at 770. Again, following Williams IV, the Tenth Circuit explained that “the [Supreme] Court has never endorsed an allencompassing right to sexual privacy under the rubric of substantive due process.” Id.
In support of this conclusion, the Seegmiller Court noted (again following Williams IV) that Lawrence “counsels against finding a broad-based fundamental right to engage in private sexual conduct.” Id. at 771. The Tenth Circuit observed that “nowhere in Lawrence does the [Supreme] Court describe the right at issue [the right to engage in private, consensual
v. Murray City, 760 F.2d 1065 (10th Cir. 1985) (a police officer was terminated when the city he worked for discovered that he practiced religiously motivated “plural marriage” and therefore was not respecting the law as befits an officer of the law). In Potter, long before Lawrence, the Tenth Circuit ruled in a single paragraph that there was no privacy interest in religiously motivated plural marriage. Id. at 1070-71. Also, before Smith and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Tenth Circuit simply cited to Reynolds and Cleveland on the Free Exercise Claim in Potter. The fact that the plaintiff in Potter was a police officer sworn to uphold state law puts that case into the category of Seegmiller and distinguishable on that basis alone. Almost thirty years after Potter, the Free Exercise analysis requires more nuance than was on display in Potter, as discussed below.
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homosexual sodomy] as a fundamental right or a fundamental liberty interest.” Id. “It instead applied rational basis review to the law and found it lacking.” Id. (citing key language in Lawrence that the Texas statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” and Justice Scalia’s dissenting opinion to conclude that Lawrence applied rational basis review).
Nor did the Lawrence Court conclude that an even more general right to engage in private sexual conduct would be a fundamental right. . . . I ndeed, as we noted above the [Supreme] Court resolved the constitutionality of Texas’s sodomy law in Lawrence by applying the rational basis test, rather than heightened scrutiny. . . . If a fundamental right were at stake, only heightened scrutiny would have been appropriate. . . . Id. (citations omitted). The court views the Tenth Circuit’s analysis and interpretation of Lawrence as binding for this case and, accordingly, finds that it precludes the application of heightened scrutiny to Plaintiffs’ substantive due process claim as well, supported as it is by the contention that Lawrence establishes “a fundamental liberty interest in intimate sexual conduct.” (Pls.’s Opp. Def.’s Mot. Summ. J. 19 n.16 [Dkt. No. 72].) The cohabitation prong of the Statute, however, cannot withstand rational basis review under the substantive due process analysis, as discussed in Part II.C below. 2. Strict Scrutiny under the Free Exercise Clause The Free Exercise Clause of the First Amendment to the United States Constitution provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. CONST. amend. I. Because the Free Exercise Clause is applicable to the states through incorporation into the Fourteenth Amendment to the United States Constitution, Smith, 494 U.S. at 876-77; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Statute is subject to evaluation based on this prohibition. The United States Supreme Court has held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law
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of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Smith, 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in judgment)). If, however, a law that burdens religious practice is found not to be neutral or of general applicability, then a court evaluating the constitutionality of the challenged law must apply the strict scrutiny standard, under which the law “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993); cf. Smith, 494 U.S. at 886 n.3. This “compelling governmental interest” standard is roughly equivalent to the strict scrutiny applicable to certain claims in other constitutional fields.48 If such a law is not narrowly tailored to advance a compelling governmental interest, then it violates the Free Exercise Clause. Hialeah, 508 U.S. at 546-47. As discussed below, strict scrutiny does not apply to the Statute’s prohibition of actual polygamy or bigamy, but is triggered by the Statute’s cohabitation prong.
a. Polygamy. Of course, Reynolds held that Congress’s long history of specifically targeting Mormons based on the fear that their practice of polygamy posed a threat to American democracy, see Holm, 2006 UT at ¶ 167 & n.20, 137 P.3d at 771 (Durham, C.J., dissenting), and the resulting federal legislation prohibiting polygamy did not violate the Mormons’ right to the free exercise of their religion. Reynolds, 98 U.S. at 165 (“it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect of” religiously motivated Mormon polygamy). Smith quoted Reynolds as part of the basis for its
48 As the Supreme Court explained in Smith, “[t]he ‘compelling government interest’ requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, or before the government may regulate the content of speech, is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields—equality of treatment and an unrestricted flow of contending speech— are constitutional norms; what it would produce here—a private right to ignore generally applicable laws—is a constitutional anomaly.” Smith, 494 U.S. at 885-86.
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holding that “generally applicable, religion-neutral laws that have the effect of burdening a
particular religious practice need not be justified by a compelling governmental interest.” Smith, 494 U.S. at 890 n.3 & 879.49 Reynolds, therefore, still controls the analysis of straightforward
polygamy or bigamy in which there is a claim to multiple simultaneous legal marriages.
In any event, the court finds Chief Justice Durham’s suggestion in her Holm dissent
persuasive, that the Statute, enacted in 1973, is actually divorced from the nineteenth-century
history of the federal government’s anti-polygamy legislation focused specifically against
Mormons. Holm, 2006 UT ¶ 140, 137 P.3d at 762 (Durham, C.J., dissenting in part) (citing State
v. Tuttle, 730 P.2d 630, 632 (Utah 1986) which recognized that in 1973 the Utah legislature
“repealed wholesale all the prior substantive criminal statutes . . . and enacted a sweeping new
penal code that departed sharply from the old common law concepts”). As far as bigamy is
concerned, therefore, it has not been sufficiently established that the Statute is necessarily a
continuation of the federal government’s nineteenth-century legislation at issue in Reynolds and
Late Corp. It would be ludicrous to suggest that the federal legislation at issue in those cases did
not specifically target the LDS Church and its practice of polygamy. If it had been sufficiently
established and argued that the Statute was an extension of that legislation, the court would likely
be pressed to find it is therefore not a neutral law of general applicability on that basis and would
be required to apply strict scrutiny to the polygamy part of the law as well, in spite of Reynolds,
49 The court agrees with the Utah Supreme Court in State v. Green, that the reasoning in Reynolds “may not necessarily comport with today’s understanding of the language and apparent purpose of the Free Exercise Clause,” but that it has “never been explicitly overruled” and, in fact, has been cited by the United States Supreme Court several times in the Free Exercise context to support, for example, such general propositions as that “‘not all burdens on religion are unconstitutional’.” 2004 UT at ¶ 19, 99 P.3d at 825 (quoting United States v. Lee, 455 U.S. 252, 257 (1982)). The Supreme Court also cited Reynolds in Hialeah for the general principle that “‘a social harm may have been a legitimate concern of government for reasons quite apart from discrimination.’” Id. (quoting Hialeah, 508 U.S. at 535). But the court believes that in each case that Reynolds has been cited in modern Free Exercise jurisprudence, the general principle for which it is being cited could be rooted in different precedent less compromised by questionable, openly prejudicial reasoning, both by the Court and in Congress’s targeted intent of the law.
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given the major developments in the jurisprudence surrounding the protection of the free exercise of religion since the 1870s.50 Since this has not been established, the court finds that the Statute need not be scrutinized under the strict scrutiny standard as to its treatment of polygamy based on multiple purportedly legal unions, rather than simply based on religious cohabitation.
b. Religious Cohabitation. Reynolds, however, is not controlling for the cohabitation prong under the 1973 Statute. As noted above, the court is bound by the Utah Supreme Court’s construction of the term “marry” in the Statute in Holm, but the Utah Supreme Court stopped short of construing the cohabitation prong at the center of this lawsuit. Holm, 2006 UT at ¶ 33, 137 P.3d at 737 & n.7. The cohabitation prong reads simply “or cohabits with another person.” And yet, bound as it is by the Holm Court’s broad interpretation of the term “marry”—that, “as used in the bigamy statute,” the term “includes both legally recognized marriages and those that are not state-sanctioned,” id. at ¶ 18, 137 P.3d at 733—the court finds that it must apply strict scrutiny to the prohibition of religious cohabitation that this simple phrase effects in the State of Utah.51 As discussed below, the cohabitation prong does not survive strict scrutiny analysis and must be stricken to save the Statute. See Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d 1174, 1195 (10th Cir. 2000) (following the Supreme Court’s “normal rule” that when a state statute is found to be unconstitutional, “partial, rather than facial, invalidation is the required course” because “the same statute may be in part constitutional and in part unconstitutional”). “‘The rule that a federal court should not extend its invalidation of a statute
50 The court is also of the opinion that Plaintiffs have brought a “colorable” claim under the Establishment Clause, as discussed above in note 16. See Axson-Flynn, 356 F.3d at 1297 (defining “colorable” to mean that “the plaintiff must show a fair probability or likelihood, but not a certitude, of success on the merits”). This finding is relevant to the hybrid rights analysis in Part II.B.3 below.
51 As the Utah Supreme Court explained in Holm, this broad construction of the term “marry” means that “the bigamy statute does not require a party to enter into a second [legal] marriage (however defined) to run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s terms.” 2006 UT at ¶ 22, 137 P.3d at 734 (emphasis added).
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further than necessary to dispose of the case before it’ applies with equal force in the First Amendment context.” Id. (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985)).
i. Common-law marriage affected religious cohabitation in the nineteenth century. Multiple treatments in authoritative and persuasive case law of the history of the federal government’s nineteenth-century campaign against the Mormon practice of polygamy establish to the court’s satisfaction that religious cohabitation was included in the concept of polygamy that was being targeted by the federal government at that time. Holm, 2006 UT at ¶¶ 40-48, 137 P.3d at 739-41; id. at ¶¶ 149-53, 137 P.3d at 766 (Durham, C.J., dissenting in part) (discussing the 1892 territorial law criminalizing unlawful cohabitation and the historical context of that law); Society of Separationists, 870 P.2d at 927-28. But this is not the case with the 1973 Statute. Chief Justice Durham identified the missing puzzle piece in her dissenting opinion in Holm, noting that in the nineteenth century there was little, if any, distinction between “polygamous marriage” and “polygamous behavior” including, primarily, unlawful “cohabitation” (which was included as prohibited and punishable behavior in, e.g., the Edmunds Act of 1882). Holm, 2006 UT at ¶ 150 n.9, 137 P.3d at 764-65 (Durham, C.J., dissenting in part). Chief Justice Durham argued that “[b]ecause common law marriage was recognized in Utah until 1898, 29 Utah Rev. Stat. ch. 1, 1189 (1898), the entry into a polygamous union could be taken as the purported entry into the legal status of marriage.” Id. at ¶ 150 n.9, 137 P.3d at 765 (Durham, C.J., dissenting in part) (citing Hilton v. Roylance, 69 P. 660, 670 (Utah 1902) which had held that participation in a religious ceremony was sufficient to establish a marriage cognizable at common law). Relevant to the court’s present analysis, Chief Justice Durham further illustrated this in the context of the Morrill Anti-bigamy Act of 1862 and its focus: That statute provided that “all . . . a cts and parts of acts heretofore passed by the said legislative assembly of the Territory of Utah, which establish, support,
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maintain, shield or countenance polygamy, be, and the same hereby are, disapproved and annulled.” Cope v. Cope, 137 U.S. 682, 686 . . . (1891) (quoting Morrill Act, ch. 126, § 2, 12, S tat. 501); . . . Among the “acts” to which the Morrill Act referred was undoubtedly the law incorporating the LDS Church, passed in 1851 b y the Provisional State Government of the proposed State of Deseret. This law had granted the LDS Church full authority to conduct marriages of its members in accord with Church doctrine. When Deseret’s petition for statehood was denied and a territorial government was established instead, the territorial legislature revalidated the laws enacted by the provisional government. Dale L. Morgan, THE STATE OF DESERET 88 (1987) (citing 1852 Utah Laws 222, an October 4, 1851 joint resolution of the territorial legislature). Thus, after 1852, when the Church publicly recognized the doctrine of plural marriage, ceremonies of plural union performed according to Church practice were legally valid marriages under territorial law until the Morrill Act declared otherwise. This history demonstrates that the legal status of polygamous unions was a matter of concern. Accordingly, the language prohibiting plural or polygamous “marriage” in the Enabling Act and Ordinance provisions was likely intended to preclude the reenactment of laws granting polygamous unions legal recognition once Utah achieved statehood.
Id. at ¶ 151, 137 P.3d at 765 (Durham, C.J., dissenting in part) (emphasis added).
In sum, throughout the entire period of the federal government’s campaign against
Mormon polygamy—essentially at all times from 1856 until 1898, when Utah ceased to
recognize common-law marriage—religious cohabitation (of the type engaged in by Mormons
who continued to enter into polygamous unions after the LDS Church’s 1890 Manifesto
discontinuing the practice of polygamy but before the 1904 “Official Statement”, and by
fundamentalist Mormons or others today) could arguably have resulted in multiple purportedly
legal marriages by operation of law. This was certainly the case before statehood under the 1852
territorial statute revalidating the provisional government’s 1851 law incorporating the LDS
Church and giving it authority to conduct religious marriages known as “sealings” that would be
recognized as legal marriages under civil law. Until 1898, therefore, the doctrine of common-law
marriage could render a religious cohabitation a purported legal union, particularly in the
presence of all the trappings of a legal marriage such as the factors discussed by the majority in
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Holm.52 For instance, “[t]here was no argument in Reynolds that the defendant did not intend his
polygamous union to have legal effect; to the contrary, he argued that polygamous unions were
entitled to legal effect under the First Amendment’s Free Exercise Clause.” Holm, 2006 UT at ¶
150 n.9, 137 P.3d at 765 (Durham, C.J., dissenting in part). Since 1898, however, common-law
marriage has no longer been valid in Utah, meaning that if a couple does not have a marriage
license, no amount of “appearing to be married” (such as through the factors listed by the Holm
majority the trappings of a legally recognized marriage, as discussed in supra note 52) will
enable a couple to claim that they actually enjoy a legal union by operation of law as a result of
such outward evidences of marriage. See, e.g., Schurler v. Industrial Comm’n, 43 P.2d 696, 697
(Utah 1935) (“In this state a common-law marriage cannot be consummated.”).
In fact, an opposite default of “statutory marriage” now prevails in Utah. See Utah Code
Ann. § 30-1-4.5 (2013).53 This mechanism often arises in various ways in divorce or bankruptcy
52 The Holm majority indicated that such factors in that case included the performance of a religious wedding ceremony “officiated by a religious leader and [which] involved vows typical of a traditional marriage ceremony” (that is, it was essentially indistinguishable from the traditional Mormon “sealing” ceremony), and at which the bride “wore a white dress, which she considered a wedding dress,” and that both spouses at all times considered themselves “married,” that is, as “husband” and “wife,” in the eyes of God and their community, lived in a house together, and engaged in sexual intercourse. Holm, 2006 UT at ¶¶ 30-31, 137 P.3d at 736-37. “Although no one of these factors is itself indicative of marriage, looking at the cumulative effect of the factors present in this case it is clear that the relationship formed by Holm and Stubbs was a marriage, as that term is used in the bigamy statute.” This broad interpretation of the term “marriage” might not render the cohabitation prong of the 1973 Statute unconstitutional if Utah still recognized common law marriage. But these trappings of “marriage” can no longer potentially result in a purportedly legal union under the doctrine of common law marriage; thus, as a constitutional matter, the religious cohabitation at issue becomes indistinguishable from simple adulterous cohabitation that is widespread and not prosecuted, as discussed below.
53 The courts are authorized by statute to make a judicial determination that an unsolemnized marriage, under certain circumstances, establishes a legal marriage. Utah Code Ann. § 30-1-4.5 (2013). This would be the case for a cohabiting couple who exhibit many of the trappings of marriage that would otherwise establish a common law marriage if that were recognized in the state. See Utah Code Ann. § 30-1-4.5(1)(a)-(e) (listing inclusive required factors as a basis for a court to make such a determination); Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994) (“[The judicial determination] merely recognizes that a woman and a man have by their prior consent and conduct entered into a marital relationship, although it was not theretofore formally solemnized or otherwise legally recognized.”). If all the enumerated factors required to establish an “unsolemnized marriage” under this statute are met, then a party must petition to
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proceedings.54 In fact, as the Holm majority acknowledges, it was used to creative effect in the
bigamy prosecution at issue in State of Utah v. Green. See Holm, 2006 UT at ¶ 23, 137 P.3d at
735.55 But Utah courts have explicitly held that the implication of this “statutory marriage”
provision is that “after a valid, licensed marriage, [a spouse] would not be legally capable of
entering an unsolemnized marriage under section 30-1-4.5.” Kunz v. Kunz, 2006 UT App 151, ¶
29, 136 P.3d 1278, 1285 (upholding the finding by the domestic commissioner and the trial court
“that the existence of the marriage license trumped all other claims” to a prior unsolemnized
marriage under Utah Code Ann. § 30-1-4.5). Thus, it could not now be argued, because it is not
have it established by “court or administrative order” at some point during the relationship or “within one year following the termination of that relationship.” Utah Code Ann. § 30-1-4.5(2) (2013)
54 For example, in most cases alimony “automatically terminates upon the remarriage or death” of the recipient spouse or “upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(9), (10) (2013). A spouse with alimony obligations might therefore try to seek a judicial determination under Utah Code Ann. § 30-1-4.5 that the ex-spouse’s relationship with another essentially constitutes a marriage (which would otherwise be recognized as a common law marriage in states that retain that doctrine), or to prove that the ex-spouse is “cohabiting” with another person. See, e.g., Myers v. Myers, 2011 UT 65 at ¶ 24 n.4, 266 P.3d 806, 811 (“a cohabitation relationship is not necessarily the same thing as an unsolemnized marriage. . . . The latter requires that a couple ‘hold themselves out as and have acquired a uniform and general reputation as husband and wife.’ Utah Code Ann. § 30-1-4.5(1)(e). Cohabitation has nothing to do with the couple’s reputation or with how they present themselves in public. It simply asks whether their relationship bears the hallmarks of marriage”). See also Clark v. Clark, 2001 UT 44, PP1-3, 27 P.3d 538 (involving a petitioner who sought a declaration of marriage under section 30-1-4.5 in order to obtain a divorce and divide marital assets); In re Marriage of Gonzalez, 2000 UT 28, PP1-2, 1 P.3d 1074 (involving a petitioner who filed for an adjudication of marriage under section 30-1-4.5 in order to determine whether she could claim benefits under a former cohabitant’s insurance policy); State v. Johnson, 856 P.2d 1064, 1068-69 (Utah 1993) (addressing the appeal of a criminal defendant who sought a declaration of marriage under section 30-1-4.5 in order to qualify for probation under another statute)
55 “To successfully prosecute Green under Utah’s bigamy statute, the State had the burden of establishing that Green was legally married and then purported to marry or cohabit with another woman. In an attempt to bind Green over on the bigamy charges, the State therefore requested a determination by the district court as to whether Green was legally married to Linda Kunz pursuant to section 30-1-4.5. After allowing Linda Kunz to intervene, the district court found that Green and Linda Kunz shared a valid unsolemnized marriage.” Green, 2004 UT at ¶ 53, 99 P.3d at 833. Almost incredibly, however, “Green was also convicted of . . . rape of a child, Linda Kunz, who was thirteen years old at the time of her first sexual association with Green.” Id. at ¶ 40 n.14, 99 P.3d at 833. The court is at a loss to understand how a child rape situation could, even long after the fact, provide the facts necessary to fulfill the elements of the “unsolemnized marriage” mechanism found in Utah Code Ann. § 30-1-4.5. The only immediately available inference is that the State prioritized charging and prosecuting Green with bigamous cohabitation under the Statute over the various social harms discussed elsewhere in the opinion.
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possible, that religious cohabitation beyond the first spouse could, by operation of law under the doctrine of common-law marriage, result in purported legal marriages. Though “cohabitation” might arguably have been a necessary addition to nineteenth-century federal anti-polygamy legislation in light of this historical context, its inclusion in the Statute effects a constitutional violation under the Free Exercise Clause, as analyzed in Hialeah.
ii. The Statute is facially neutral under Hialeah. In Hialeah the Supreme Court further examined the Smith rule recognizing that a neutral law of general applicability need not be justified by a compelling governmental interest even if its incidental effect is a burden on a particular religious practice. 508 U.S. at 531. The Hialeah Court found that although city ordinances against sacrificial or ritual animal killings were indeed facially neutral in their artful drafting, they nevertheless unconstitutionally targeted specifically the practices of the Santeria religion for elimination, and thus were not neutral or of general applicability, because when “their operation is considered,” their “design . . . accomplishes a ‘religious gerrymander’.” Id. at 535 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). The Court reached this conclusion after evaluating the city ordinances at issue both in light of “facial neutrality” and “operational neutrality.” Id. at 533-40. A law is not neutral if, under either rubric, it is found “to infringe upon or restrict practices because of their religious motivation.” Id. at 533. Facial neutrality refers to “the minimum requirement of neutrality,” which is “that a law not discriminate on its face.” Id. Thus, “[a] law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id. Here, as in Hialeah, it would be difficult to argue that the Statute, and particularly the cohabitation prong, is not drafted to be facially neutral. The language at issue simply reads “or
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cohabits with another person,” Utah Code Ann. § 76-7-101(1), not referring to religion or facially implying a response to religiously motivated conduct. Accordingly, the court agrees with the Utah Supreme Court in State of Utah v. Green that the Statute is facially neutral: “Utah’s bigamy statute explains what it prohibits in secular terms, without referring to religious practices. The statute does not on its face mention polygamists or their religion. In addition, the word ‘cohabit’ does not have religious origins or connotations; rather, it is a word of secular meaning.” 2004 UT 76, ¶ 25, 99 P.3d 820, 827. But the court cannot agree with the conclusion in Green that the Statute is operationally neutral.
iii. The Statute is not operationally neutral under Hialeah. As the Green Court noted, “[f]acial neutrality is not determinative.” Id. at ¶ 26, 99 P.3d at 827 (quoting Hialeah, 508 U.S. at 534). “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Hialeah, 508 U.S. at 534. Operational neutrality is evaluated as well because “[a]part from the text, the effect of a law in its real operation is strong evidence of its object.” Id. at 535. The Green Court concluded that, different from Hialeah, Utah’s bigamy statute does not similarly operate to isolate and punish only that bigamy which results from the religious practices of polygamists. It contains no exemptions that would restrict the practical application of the statute only to polygamists. In fact, the last reported decision of a prosecution under the current bigamy statute in our state courts involved a man who committed bigamy for nonreligious reasons. Green, 2004 UT at ¶ 28, 99 P.3d at 827 (citing State of Utah v. Geer, 765 P.2d 1 (Utah App. 1988)). This treatment inadequately addresses the separate issues of actual bigamy in the Statute, on the one hand, and cohabitation, which is the issue confronting the court in this case, on the other. As discussed above, the problematic portion of the Statute is the cohabitation prong, not the broader prohibition of polygamy through criminalizing bigamy, a prohibition shared by
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virtually every state. Thus, the Green Court is correct that the Statute, in its prohibition of actual
bigamy, “does not . . . operate to isolate and punish only that bigamy which results from the
religious practices of polygamists.” Id. Someone fraudulently obtaining a second marriage
license in order to enter into a purportedly legal second marriage while still married to someone
else (bigamy) would violate the bigamy/polygamy portion of the Statute (independent of the
cohabitation prong) whether he or she were acting based on religious motivation or not.56
Such “bigamy” is not at issue here. The Plaintiffs here “are not asking for recognition of
plural marriages and have neither sought nor secured multiple marriage licenses.” (Pls.’ Mem.
Supp. Mot. Summ. J. 42 [Dkt. No. 50].) Rather, the issue under consideration is whether the
cohabitation prong is operationally neutral and of general applicability. The court finds that the
cohabitation prong fails the operational neutrality analysis and, accordingly, also fails the general
applicability requirement since “[n]eutrality and general applicability are interrelated, and . . .
failure to satisfy one requirement is a likely indication that the other has not been satisfied.”
56 The Geer case, relied upon by Green, illustrates this point. In Geer, the defendant’s wife alerted authorities to suspicious activity that possibly indicated her husband was leading a double life. Geer, 765 P.2d at 2-3. After arresting Geer on an outstanding Missouri felony warrant, the Utah police discovered that Geer was already married to another woman at the time he married his current wife in Utah. Id. at 3. In fact, Geer told police he had been married thirteen times “and was not involved in any divorce proceedings.” Id. This was actual bigamy, not religious cohabitation interpreted to be equivalent to actual bigamy; this fact alone renders Geer inapposite to the present case. The Green Court, however, did not seem to identify this distinguishing element and relied on Geer as support for the neutrality and general applicability of the Statute. Green, 2004 UT ¶ 28 & n.10, 99 P.3d at 827-28. In fact, the Green Court found it ironic that although Green was arguing that the Statute is not neutral or generally applicable because it “isolates and punishes only that bigamy which results from the religious practices of polygamists,” id. at n.10, Geer had argued the opposite, namely that “the State selectively prosecutes only those bigamists who practice bigamy for other than religious reasons.” Geer, 765 P.2d at 3 (emphasis added).
But Geer was charged under the Statute for bigamy—actually having two or more purportedly legal marriages (not religiously cohabiting with another woman while already legally married to a first woman)—an outcome that would have been the same under any state’s anti-bigamy statute, including the majority of states that do not have a cohabitation prong. The Green Court’s conclusion, based primarily on Geer, that the Statute does not operationally target religious polygamists in prosecuting actual bigamy is therefore beside the point for the present inquiry, which focuses on whether the cohabitation prong is operationally neutral and of general applicability.
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Hialeah, 508 U.S. at 531. Put simply, as with the ordinances at issue in Hialeah, in the operational application of the Statute, “few if any [cohabitations] are prohibited other than [religious cohabitations].” Id. at 536. That is, “although [religious cohabitation] is prohibited,” virtually any other cohabitation is “unpunished.” Id.
To unpack this finding, the court notes the commonplace occurrence of cohabitation in contemporary society. As observed by Chief Justice Durham of the Utah Supreme Court, “the cohabitation of unmarried couples, who live together ‘as if’ they are married in the sense that they share a household and a sexually intimate relationship, is commonplace in contemporary society.” Holm, 2006 UT at ¶ 169, 137 P.3d at 771-72 (Durham, C.J., dissenting in part) (citing Utah Governor’s Comm’n on Marriage & Utah State Univ. Extension, Marriage in Utah Study 35-36 (2003), which indicated that “of the 42% of Utah residents between the ages of 18 and 64 who were unmarried, 30% to 46% were currently cohabiting outside of marriage”). The parties did not provide more updated statistics on this metric but the court doubts that the figure for cohabitation in society has decreased over the last decade, or since 2006. Moreover, the court agrees with Chief Justice Durham that “[e]ven outside the community of those who practice polygamy for religious reasons, such cohabitation may occur where one person is legally married to someone other than the person with whom he or she is cohabiting.” Id. Of course, this is otherwise known as “adultery” and it is independently prohibited in Utah by statute, Utah Code Ann. § 76-7-103 (2013), though in 2006 Chief Justice Durham reported not being able to find any prosecutions under this provision and noted that it appeared that “[t]he most recent adultery prosecution to have reached [the Utah Supreme Court] appears to have been in 1928 under a previous criminal provision.” Id. at ¶ 169 n.22, 137 P.3d at 772. In addition, Utah state courts have explicitly observed the moribund nature of the statute prohibiting the related offense of
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fornication, Utah Code Ann. § 76-7-104 (2013). See Berg v. Berg, 2004 UT App. 337, ¶ 15, 100
P.3d 261 (indicating that consenting adults are not prosecuted under Utah’s fornication laws).
But most importantly, in this context, Chief Justice Durham observed that “parties to such
[adulterous] relationships [in which one person is legally married to someone other than the
person with whom he or she is cohabiting] are not prosecuted under the criminal bigamy statute”
in addition to not being prosecuted under the essentially moribund fornication or adultery
statutes. Holm, 2006 UT at ¶ 169, 137 P.3d at 772.
The Utah Surpeme Court acknowledged in Green that it could “envision situations in
which application of the word ‘cohabit’ could be problematic, and the statute might therefore
deserve legislative consideration.” 2004 UT 76, ¶ 52 n.16, 99 P.3d at 833. The Utah legislature,
however, did not accept this invitation to provide clarity. The outcome in Green, perhaps, gave it
little reason to see the need for any change—the Court found Green’s conduct to be
unambiguously the “kind” of cohabitation that the Statute is ostensibly meant to prohibit:
The record is clear that Green intended to create and maintain spousal-type relationships with Shirley Beagley, LeeAnn Beagley, Cari Bjorkman, and Hannah Bjorkmann. He referred to each of these women as a wife, regardless of whether a licensed marriage existed. The women likewise considered themselves Green’s wives and adopted the Green surname. Green spent nights with each woman on a rotating schedule and succeeded in impregnating these four women eighteen times, collectively. The children born of these associations also use the Green surname. Together, Green and the women undertook spousal and parental obligations. Although Green and the women did not reside in one house, they shared a group of mobile homes, ‘Green Haven,’ that possessed common areas for the entire family’s use. Id. at ¶ 47, 99 P.3d at 831-32. Having thus described Green’s “cohabitation,”57 the Court held
that “Green’s conduct produced precisely the situation that bigamy statutes aim to prevent—all
57 The “bigamy” at issue in Green, since he did not have any marriage licenses with any of his wives at the time of the prosecution, was cohabitation under the Statute. Green was not legally married to any of his wives until the prosecution moved for a judicial determination under the “statutory marriage” provision discussed above (Utah Code Ann. § 30-1-4.5) that Green was legally married to one of his
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the indicia of marriage repeated more than once.” Id. The court respectfully finds this synopsis of Green’s cohabitation and the “intention” of the Statute conveniently too tidy in its failure to refer to the most important factor of such plural cohabitations in Utah—their religious nature. By describing the cohabitation at issue in Green this way (ignoring the religious motivation of the cohabitation in that case), the Court was able to make it seem like the Statute is operationally neutral and of general applicability: anyone engaging in such a cohabitation as Green’s would be subject to prosecution under the Statute; in fact, the Green Court found that “law enforcement officials encountering Green’s circumstances would not be left to pursue their own personal predilections in determining the applicability of Utah’s bigamy statute.” Id. at ¶ 52, 99 P.3d at 832. But this is manifestly not the case.
Specifically, in her Holm dissent Chief Justice Durham noted that “the State itself has indicated that it does not prosecute those engaged in religiously motivated polygamy under the criminal bigamy statute unless the person has entered a religious union with a girl under eighteen years old.” Holm, 2006 UT at ¶ 175, 137 P.3d at 775 (Durham, C.J., dissenting in part). Moreover, writing for the majority in Holm, Justice Durrant (to his credit) expanded from the Green Court’s relatively antiseptic description of the “type” of cohabitation that would invite prosecution, whether engaged in for religious purposes or not, by making specific reference to the elephant in the room. Holm, 2006 UT at ¶¶ 29-31, 137 P.3d at 736-37; see supra note 52 (listing the majority’s “factors”). That is, in further clarifiying the “factors” that are invariably involved in a determination of whether the Statute has been violated, the Holm majority observed that these factors prominently include the religious nature of the wedding ceremony (often a fundamentalist Mormon sealing ceremony virtually identical to the marriage ceremony of the earlier wives so that he could then be prosecuted for simultaneously cohabiting with his other wives under the Statute. See supra note 55 (discussing the creative use of Utah’s statutory marriage provision in the Green prosecution).
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LDS Church to which the State gives sanction and recognizes as legally valid) and the resulting religious belief of the participants that they are “married” in the eyes of God if not in the eyes of the State.
In a curious twist, the Holm majority argued that this was because “while a marriage license represents a contract between the State and the individuals entering into matrimony, the license itself is typically of secondary importance to the participants in a wedding ceremony.” Id. at ¶ 32, 137 P.3d at 737. (But the Court provided no support for this conclusory assertion.) Nevertheless, this observation lead to the conclusion that “the crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization”—the religious wedding ceremony—because it is the means by which “two individuals commit themselves to undertake a marital relationship.” Id. In other words, it is the intention of the individuals to be religiously married, whether or not their relationship actually achieves state sanction such that the legal obligations of marriage attach, that, for the Holm majority, constituted a key consideration in whether the Statute had been violated. But compare Maynard v. Hill, 125 U.S. 190, 210-11 (1888).58 The overall effect of Holm’s list of factors—“no one of [which] is itself indicative of marriage”—seems to have been that the religious marriage ceremony or religious motivation of the participants, and not a marriage license, could function as a bright line by which to define the crime of bigamy in Utah. But the court agrees with Chief Justice Durham that “[t]he parties’ intent to assume these legal obligations is what distinguishes a ceremony properly considered a ‘solemnization’ from one that is merely a private religious
58 “Marriage . . . does not require any religious ceremony for its solemnization . . . . [W]hen the contract to marry is executed by the marriage’s [solemnization], a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.” Holm, 2006 UT at ¶ 142, 137 P.3d at 762 (Durham, C.J., dissenting in part) (quoting Maynard v. Hill, 125 U.S. 190, 210-11 (1888)) (internal ellipses and alterations as in Holm).
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ritual.” Holm, 2006 UT at ¶ 142, 137 P.3d at 762 (Durham, C.J., dissenting in part). Thus, had
the parties in Holm “intended to marry under state law and to assume the concomitant legal
obligations, a sealing ceremony of the type in which they participated would satisfy the state’s
solemnization requirement, assuming that all other requirements, such as licensure, were met.” Id. at ¶ 143, 137 P.3d at 762 (Durham, C.J., dissenting in part) (emphasis added).59 Stated
succinctly, the one and only factor that is officially indicative of marriage is the marriage license
which must be present before any kind of solemnization ritual has legal effect creating a
marriage, and fraudulently obtaining more than one license constitutes bigamy.
The Holm majority’s recognition of the religious nature of the cohabitations at issue, both
from a historical perspective examining the federal campaign against Mormon polygamy and
with a view to the specific case before it (the religious indicia of the “wedding” between Holm
and Stubbs), brings the operational discrimination of the Statute’s cohabitation prong into
sharper focus. Indeed, Plaintiffs point out that virtually all prosecutions under the Statute (with
the exception of Geer, which is inapposite here as it concerned multiple marriage licenses and
not bigamy based solely on cohabitation) have been of individuals engaging in religious cohabitation.60 And the State’s argument in this case further reinforces the conclusion that the
59 This aptly expresses not only that this is not a chicken-or-egg quandary but also that the Holm majority got it backwards—it is the parties’ intent to assume the legal obligations of marriage, as demonstrated usually by licensure, that controls and gives legal effect to the solemnization, and not any independent quality of the solemnization itself.
60 See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1103 (10th Cir. 2007) (plaintiffs sought multiple marriage licenses because they “subscribe[d] to the religious doctrine of plural marriages”); White v. Utah, 41 F. App’x 325, 326 (10th Cir. 2002) (plaintiff challenged Anti-Bigamy law because he “ha[d] been a member of or [wa]s currently a member of a religion that espouses polygamy”); Potter v. Murray City, 760 F.2d 1065, 1066 (10th Cir. 1985) (police officer terminated because of his practice of plural marriage challenged the Statute based on Privacy and Free Exercise); Barlow v. Evans, 993 F. Supp. 1390, 1392 (D. Utah 1997) (plaintiffs challenged housing discrimination based on “defendants’ belief that plaintiffs practice polygamy as a religious observance”); State of Utah v. Holm, 2006 UT 31, 137 P.3d 726 (challenge to Anti-Bigamy law arising out of “religious marriage ceremony”); In re Steed, 2006 UT 10, 131 P.3d 231 (removal of judge based on second wife “he believed himself to be married according to the traditions of their mutual religious faith”); State of Utah v. Green, 2004 UT 76, 99 P.3d 820 (plaintiff
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cohabitation prong is not operationally neutral but in its application primarily applies to those
involved in religious cohabitation. In an exchange with the court at oral argument, Assistant
Attorney General Jerrold S. Jensen, counsel for Defendant, argued as follows:
[Scenario 1:]
THE COURT: L et’s assume that a man chooses to have intimate relationships with three different women, each of whom resided in different residences, and he has children with all of them, would that be violative of—would that be polygamist conduct? . . . Let’s assume that he does not have a marriage license or recognized public document saying he’s married to any of them.
MR. JENSEN: That would not be—I don’t think that would be termed polygamy because there’s no marriage.61
(Tr. Hrg. Jan. 17, 2013, at 7:18-8:9 [Dkt. No. 75].)
[Scenario 2:]
THE COURT: L et’s assume your situation, that a man is legally by law recognized as married to one woman and then he has intimate sexual relationships continuing with two other women, but he doesn’t make any professions of any commitment to these women, he just engages in adulterous conduct. Does the statute come into play in those circumstances?
MR. JENSEN: I don’t think it does. The cohabitation would apply if they were living in one household and cohabiting as a man and plural wives. . . . T he situation you presented is no different than someone having an affair.
(Id. at 9:23-10:11.)
[Scenario 3:]
THE COURT: No w, let’s—to understand your position, let’s assume the same scenario, legal marriage to one woman, intimate relationships with two additional women, but as to one of those women he makes a public pronouncement that says
challenged Anti-Bigamy law because it infringed on “his marital practices in violation of his right to freely exercise his religion”); In re Adoption of W.A.T., 808 P.2d 1083 (Utah 1991) (petition for adoption denied because Plaintiff was “also ‘married’ [to a second wife] in accordance with petitioners’ religious belief and practice of plural marriage).
61 Of course, this was the case in Green, see supra note 55, and the prosecution therefore decided to apply for an adjudication of a legal marriage between Green and one of his early wives in order to be able to charge Green with bigamy under the Statute on the basis of his cohabitation with further women whom he called his “wives” and to whom he believed himself to be spiritually united in “marriage.”
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I’m committed to this woman, I’m going to take care of her for the rest of her life, does that change the analysis?
MR. JENSEN: W ell, I don’t know that it changes the analysis. The polygamy aspect of this requires that there be a marriage of some sort, a second or third or fourth marriage.
THE COURT: But that’s the problem is deciding what constitutes a marriage for purposes of this act. Does the public pronouncement that I intend to be committed to this woman, I will take care of her and her children for as long as she lives, is that enough to make a marriage?
MR. JENSEN: I’m not sure that’s enough to make a marriage, no.
(Id. at 11:23-12:5.)
[Scenario 4:]
THE COURT: Okay. Let’s suppose that he says the same thing, but he says it to his Jewish rabbi, does that now become a polygamist marriage? And the rabbi says I bless you and recognize you as husband and wife.
MR. JENSEN: Well, if they are holding themselves out as husband and wife, I would recognize that as marriage.
THE COURT: So is it the recognition by a religious organization that it believes that they are living together in a recognized relationship by the religion sufficient?
MR. JENSEN: No, no, no. . . . I think it’s the representation that they make to the world as to what is their relationship. If they make it as husband and wife, then that constitutes marriage under the statute.
THE COURT: If they say we’re not husband and wife, we just live together, then it’s not under the statute.
MR. JENSEN: Then it’s not governed under the statute.
(Id. at 12:6-13:4.)
Given the confusion apparent in this exchange, the court sought further clarification,
receiving input from Defendant’s counsel that further confirmed for the court that the
cohabitation prong is not, in fact, operationally neutral:
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THE COURT: W hat I’m looking for is [for] you to help me find what is that distinguishing factor? And frankly on t he face of this history it appears to be religion.
MR. JENSEN: Well, there is no que stion that polygamy is associated with religion in this state. Not all of the cases that have been prosecuted in this state are against people that assert religion as a d efense. There has been cases in which there was not religion.
THE COURT: But aren’t those cases all where there was legally recognized marriages claimed as to both spouses.
MR. JENSEN: Yes, yes, yes.
THE COURT: That’s a different scenario than what we’re talking about here. . . .
(Id. at 16:2-16.) The State’s final attempt to clarify further underscored that the cohabitation
prong is not operationally neutral as required by Hialeah:
MR. JENSEN: [B]ut the issue as to cohabitation in the statute, and I think the statute has to be looked at clearly, the cohabitation in the statute only applies when someone holds themselves out to be married. That is a different situation than cohabitation that generally exists in the state. . . . i t’s not marriage but they know the other person is married. So they’re cohabiting. That is different than just cohabitation. Two people can go out and cohabit, and let’s admit, it goes on all the time. But in this situation under the statute they’re not prosecuted unless the one cohabiting knows that person is married. It’s the same as with marriage.
THE COURT: So it applies to an adulterous relationship? By definition, adultery is a person who is married and has intimate relationships with another person to whom he is not married. That’s what you’ve just described.
MR. JENSEN: All right, Your Honor. But let’s look at how this really works in practice. In practice there is the marriage, it may not be recognized by the state, but it is a marriage, it’s performed, there is a wedding ceremony performed, there are vows exchanged. The problem is proving it. The federal government had that problem in the 1880s. That’s why they added cohabitation to the Edmunds Statute. The same thing with the Utah statute. The problem was proving that they were married, so they have added cohabitate, but the person has to cohabitate knowing that other person is married. . . .
THE COURT: So tell me what’s different between adultery and what you’ve just described.
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MR. JENSEN: The one is that they claim to be married. But just because the state can’t prove it doesn’t mean it hasn’t happened. That’s what’s happening in the [religious] polygamist communities. THE COURT: S o it’s the expression of the fact that the person is a wife that makes it illegal. MR. JENSEN: Yes. (Id. at 51:17-53:22 (emphasis added).) The transition from “Scenario 3” to “Scenario 4” in the above exchange raises concerns for the court about the Statute’s operational neutrality. Consistent with the Holm Court’s treatment, this exchange reveals that the essential difference between the adulterous cohabitation that “goes on all the time” (Id. at 52:12) in the State and the cohabitation at issue in the Statute seems to be the existence of a wedding ceremony by which the participants are recognized as “husband” and “wife” or otherwise become motivated to believe they are justified in holding themselves out to the world as “married” even though they are not in fact married in the eyes of the State. Given the fact that all prosecutions under the Statute’s cohabitation prong (as opposed to straightforward bigamy with multiple marriage licenses) have been of those cohabiting for religious reasons underscores that, in practice, the law is not operationally neutral under Hialeah. The State’s argument reveals that the object of the Statute “is to infringe upon or restrict practices because of their religious motivation.” Hialeah, 508 U.S. at 533. This it may not do unless it is a narrowly tailored means of advancing a compelling state interest. iv. The Statute is not generally applicable under Hialeah. As the Supreme Court held in Hialeah, ‘[n]eutrality and general applicability are related, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Id. at 532-33. That is, the “government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543. The
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State’s pattern of enforcement of the Statute raises particular concerns about its general applicability. First, although the State has indeed prosecuted religious cohabitation, Chief Justice Durham observed in her Holm dissent that “the State itself has indicated that it does not prosecute those engaged in religiously motivated polygamy under the criminal bigamy statute unless the person has entered a religious union with a girl under eighteen years old.” Holm, 2006 UT at ¶ 175, 137 P.3d at 775 (Durham, C.J., dissenting in part). This is a counterintuitive policy in light of the State’s passionate arguments that the rampant abuses reported from the religious polygamist communities—which have been driven underground by this Statute and its predecessors—pose social harm constituting a rational basis for the legislation. (Tr. Hrg. Jan. 17, 2013, at 26:20-27:18; 29:14-30:12 [Dkt. No. 75].) Second, this prosecutorial laissez-faire is complicated by situations such as in Green and this case, where prosecutors deviated from this “policy” of non-prosecution because the participants openly discussed their religious cohabitation in the media.62
Third, much of the Statute’s usefulness, apparently, lies in the State’s perception that it can potentially simply charge religious polygamists under the Statute when it has insufficient evidence of other crimes. As the Green Court noted, “the closed nature of polygamist communities makes obtaining evidence of and prosecuting these crimes challenging.” Green, 2004 UT at ¶ 40, 99 P.3d at 830. Thus, a rational basis for the Statute, according to Green, is the State’s “interest in protecting vulnerable individuals from exploitation and abuse.” Id. As already
62 Green, 2004 UT at ¶ 6, 99 P.3d at 823 (“Between 1998 and 2001, Green appeared on various television shows with the women, consistently referring to the women as his wives, and the women likewise acknowledged spousal relationships.”). In this case, Plaintiffs argue, and the court acknowledges, that although “the government has tried to assure the public and the court that it was not engaged in a general enforcement campaign against polygamy and has opted not to prosecute many known polygamous families,” Defendant has gone “so far as to argue that the Brown family brought the investigation and public accusations on themselves by choosing to go public” on the Sister Wives television show. (Pls.’ Mem. Supp. Mot. Summ. J. 43 [Dkt. No. 50]; “Factual Background,” supra, ¶¶ 1317.)
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noted, this rationale is illogical in the face of the general policy not to prosecute religious polygamists. Moreover, Chief Justice Durham observed that “I am unaware of a single instance where the state was forced to bring a charge of bigamy in place of other narrower charges, such as incest or unlawful sexual conduct with a minor, because it was unable to gather sufficient evidence to prosecute these other crimes.” Holm, 2006 UT at ¶ 175, 137 P.3d at 775 (Durham, C.J., dissenting in part). The court agrees, therefore, that it would seem “inappropriate to let stand a criminal law simply because it enables the state to conduct a fishing expedition for evidence of other crimes.” Id.63
Finally, the State’s explicit “policy of selective prosecution,” id., is fatal to any claim to general applicability. In his attempts to buttress his standing and mootness arguments at earlier stages of this litigation, Defendant swore under penalty of perjury that “[a]s Utah County Attorney, I have now adopted a formal office policy not to prosecute the practice of bigamy unless the bigamy occurs in conjunction with another crime or a person under the age of 18 was a party to the bigamous marriage or relationship.” (Second Buhman Aff. ¶ 8 [Dkt. No. 47-1]; see also Def.’s Mem. Supp. Mot. Dismiss for Mootness at [4] [Dkt. No. 47].) But Defendant also admitted that there is no guarantee that the Brown will not be prosecuted in the future for polygamy (under a successor in office, for instance). (See Second Buhman Aff. ¶¶ 5, 12 [Dkt. No. 47-1].)
Each of these points weighs against a finding that the cohabitation prong of the Statute is “generally applicable” as required by Hialeah. Because those who religiously cohabit fall within the Statute (according to Holm and the State’s argument here) but those who adulterously cohabit
63 Moreover, reviewing the outcome in Green, Holm, and State of Utah v. Kingston, 2002 UT App. 103, 46 P.3d 761, Justice Durham observed that “[i]t appears from these three cases that the State may be using its ability to prosecute offenders under [the Statute] as a means of imposing additional punishment for an already-charged offense rather than as a proxy prosecution for conduct that is otherwise unchargeable.” Holm, 2006 UT at ¶ 175 n.29, 137 P.3d at 775 (Durham, J., dissenting in part).
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do not, as explained by the State, the court finds that the Statute has “every appearance of a prohibition that society is prepared to impose upon [religious cohabitation] but not upon itself.” Hialeah, 508 U.S. at 533. In sum, the cohabitation prong of the Statute is neither operationally neutral nor generally applicable (“interrelated” as these two elements are, id. at 531) based on the absence of common-law marriage as a mechanism that potentially “recognizes” cohabitation as a legal union, the commonplace occurrence of adulterous cohabitation in contemporary society, the complete lack of prosecution for adultery or fornication, Holm’s identification of the trappings of a religious marriage ceremony as a trigger for prosecution under the majority’s broad definition of the term “marry,” the history of enforcement which, aside from Geer (a case that is distinguishable because it was based on the defendant’s fraudulent possession of multiple marriage licenses) reveals a focus exclusively on fundamentalist Mormon “polygamy,” i.e. religious cohabitation, despite a general policy in the State not to prosecute religiously motivated polygamy, and, relatedly, the apparently limitless prosecutorial discretion by individual State officials, such as Defendant, to decide whether and when (and against whom) to enforce the cohabitation prong of the Statute.
v. The cohabitation prong is not narrowly tailored to advance a compelling state interest.
Because the cohabitation prong of the Statute is not operationally neutral or generally applicable, it must be “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Hialeah, 508 U.S. at 533; cf. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (discussing compelling interests). The “policy of selective prosecution” (discussed above) alone supports the “conclusion that a blanket criminal prohibition on religious polygamous unions is not necessary to further the state’s interests, and suggests that a more narrowly tailored law would be just as effective.” Holm, 2006 UT at ¶ 175, 137 P.3d at 775 (Durham, C.J.,
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dissenting in part). More methodically, however, each of the “state interests” found by Green to be supported by a rational basis do not survive strict scrutiny.
First, the Green Court discussed the State’s interest in regulating marriage, an interest which “has resulted in a network of laws, many of which are premised upon the concept of monogamy,” and held that the Statute is rationally related to that interest. Green, 2004 UT at ¶ 37-38, 99 P.3d at 829-30 (citing Potter v. Murray City, 760 F.2d 1065, 1070 n.8 (10th Cir. 1985)). In fact, Potter found this network of laws supporting “a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage” to be a “compelling” state interest. Potter, 760 F.2d 1070. The Holm Court, also applying rational basis review, re-emphasized this State interest in protecting monogamous marriage as a social institution. Holm, 2006 UT at ¶¶ 56-63, 137 P.3d at 743-45. Applying strict scrutiny, however, the court agrees with Chief Justice Durham that “the state has an important interest in regulating marriage, but only insofar as marriage is understood as a legal status.” Id. at ¶ 168, 137 P.3d at 771 (Durham, C.J., dissenting in part). The court therefore finds Chief Justice Durham’s observation to be well-taken, that the Statute
protects marriage, as a legal union, by criminalizing the act of purporting to enter a second legal union. Such an act defrauds the state and perhaps an innocent spouse or purported partner. It also completely disregards the network of laws that regulate entry into, and the dissolution of, the legal status of marriage, and that limit to one the number of partners with which an individual may enjoy this status. Id. (emphasis added). As argued above, the incongruity between criminalizing religious cohabitation but not adulterous cohabitation, or rather selectively prosecuting the former while not prosecuting the latter at all, demonstrates that the cohabitation prong is not narrowly tailored to advance a compelling state interest. See id. at ¶ 169, 137 P.3d 771-72. “That the state perceives no need to prosecute nonreligiously motivated cohabitation, whether one of the parties
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to the cohabitation is married to someone else or not, demonstrates that, in the absence of any claim of legal marriage, neither participation in a religious ceremony nor cohabitation can plausibly be said to threaten marriage as a social or legal institution.” Id. at at ¶ 170, 137 P.3d 772. Thus, “any interest the state has in maintaining this network of laws does not logically justify its imposition of criminal penalties on those who deviate from that domestic structure, particularly when they do so for religious reasons.” Id. Accordingly, “such criminal penalties are simply unnecessary to further the state’s interest in protecting marriage.” Id.
The court acknowledges, as did Chief Justice Durham, that “some in society may feel that the institution of marriage is diminished when individuals consciously choose to avoid it,” but agrees that “it is generally understood that the state is not entitled to criminally punish its citizens for making such a choice, even if they do so with multiple partners. . . .” Id. at ¶ 170, 137 P.3d at 773. The court adopts the remainder of Chief Justice Durham’s reasoning in paragraphs 170 through 173 on why the Statute fails strict scrutiny on this State interest enunciated in Green. In short, neither the Holm majority nor the Defendant adequately explains “how the institution of marriage is abused or state support for monogamy threatened simply by an individual’s choice to participate in a religious ritual with more than one person outside the confines of legal marriage.” Id. at ¶ 184, 137 P.3d at 777-78.
But the court also feels compelled to identify an absurdity in the State’s position against religious cohabitation in this context of trying to “protect” the institution of marriage by criminalizing religious cohabitation. At a time of much discussion in society about problems arising from the decline in rates of people marrying or the increased age at which people decide to marry, the Statute penalizes people for making a firm marriage-like commitment to each other,
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even though they know that their religious cohabitation does not result in state-sanctioned or recognized marriages. As Plaintiffs trenchantly noted, the State’s position
would suggest that Kody Brown would have avoided any criminal exposure if he had simply maintained relations with multiple women, had children by them, but never expressed a belief in being spiritually bonded to them. Since he committed to these women and his children, the case is treated as undermining marriage by the Defendant and justifying criminalization under the statute. (Pls.’ Mem. Opp. Def.’s Mot. Summ. J. 26 [Dkt. No. 72].) In fact, Defendant’s counsel confirmed this to be the case by identifying the relationship at issue in “Scenario 4” above as violating the Statute but not “Scenario 3”. (Tr. Hrg. Jan. 17, 2013, at 12:6-13:4. [Dkt. No. 75].) “It is the state that is defining cohabitation and plural relationships as marriage and then criminalizing those private relationships as inimical to the institution of marriage. The Browns have not questioned the right of the state to limit its recognition of marriage and to prosecute those citizens who secure multiple marriage licenses from the state.” (Pls.’ Mem. Opp. Def.’s Mot. Summ. J. 26 [Dkt. No. 72].) Encouraging adulterous cohabitation over religious cohabitation that resembles marriage in all but State recognition seems counterproductive to the goal of strengthening or protecting the institution of marriage. The court thus cannot believe that this approach constitutes a narrowly tailored means of advancing the compelling state interest of protecting the institution of marriage. Second, the Green Court held that, under rational basis review, the Statute addresses the State’s “interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.” 2004 UT at ¶ 39, 99 P.3d at 830. The Statute’s relationship to this interest makes even less sense to the court than the first interest discussed above, particularly when reviewed under strict scrutiny. This interest focuses on preventing the harm caused to the state, to society, and to defrauded individuals when someone purports to have entered the legal status of
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marriage, but in fact is not eligible to validly enter that status because of a prior legal union. This interest is simply not implicated here, where no claim to the legal status of marriage has been made.
Holm, 2006 UT at ¶ 174, 137 P.3d at 773-74 (Durham, C.J., dissenting in part). Moreover, it is
“difficult to understand how those in polygamous relationships that are ineligible to receive legal
sanction are committing welfare abuse when they seek benefits available to unmarried persons.”
Id. at ¶ 181, 137 P.3d at 777. The court agrees with Chief Justice Durham’s analysis of this point
and accordingly finds the cohabitation prong of the Statute not even rationally related to this
inapposite State interest.
Third, and of most concern to the court, the Green Court focused on “the State’s interest
in protecting vulnerable individuals from exploitation and abuse.” Green, 2004 UT at ¶ 40, 99
P.3d at 830. The Green Court continued: “The practice of polygamy, in particular, often
coincides with crimes targeting women and children. Crimes not unusually attendant to the
practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child
support.” Id. (citing Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free
Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern
Constitutional Jurisprudence, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 225, 239-45 (2001)). But, once
again, the court agrees with Chief Justice Durham’s assessment of Green’s rational basis review
of this “State interest”:
Because the [Green Court applied rational basis review under the First Amendment challenge], the court was content to rely on assertions in a student law review piece that polygamy was frequently related to other criminal conduct, together with two local cases, including the case of Green himself. However, reviewing this assessment in light of the heightened scrutiny I believe is called for here, I cannot conclude that the restriction that the bigamy law places on t he religious freedom of all those who, for religious reasons, live with more than one woman is necessary to further the state’s interest in this regard. Upon closer review, the student Note is unconvincing. The State has provided no evidence of a causal relationship or even a strong correlation between the practice of polygamy,
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whether religiously motivated or not, and the offenses of ‘incest, sexual assault, statutory rape, and failure to pay child support,’ cited in Green, [2004 UT] at ¶ 40. Moreover, even assuming such a correlation did exist, neither the record nor the recent history of prosecutions of alleged polygamists warrants the conclusion that [the Statute] is a n ecessary tool for the state’s attacks of such harms. For one thing, I am unaware of a s ingle instance where the state was forced to bring a charge of bigamy in place of other narrower charges, such as incest or unlawful sexual conduct with a minor, because it was unable to gather sufficient evidence to prosecute these other crimes. The State has suggested that its initial ability to file bigamy charges allows it to gather the evidence required to prosecute those engaged in more specific crimes. Even if there were support for this claim in the record, I would consider it inappropriate to let stand a c riminal law simply because it enables the state to conduct a fishing expedition for evidence of other crimes. Further, the State itself has indicated that it does not prosecute those engaged in religiously motivated polygamy under the criminal bigamy statute unless the person has entered a religious union with a girl under eighteen years old. Such a policy of selective prosecution reinforces my conclusion that a blanket criminal prohibition on religious polygamous unions is not necessary to further the state’s interests, and suggests that a more narrowly tailored law would be just as effective.
Holm, 2006 UT at ¶ 175, 137 P.3d at 775 (Durham, C.J., dissenting in part) (internal citations
omitted) (emphasis added). Like Chief Justice Durham, the court does “not reach this conclusion
lightly.” Id. at ¶ 176, 137 P.3d at 775. The court is aware of the many reports64 that circulate
implying “the possibility that other criminal conduct may accompany the act of bigamy.” Id.
64 Defendant refers to some such reports, with which the court is familiar, in his Reply Memorandum (Dkt. No. 73). Nevertheless, Defendant provided no competent evidence appropriate for summary judgment that could influence the court’s consideration. Despite this deficiency, the court has indeed heavily weighed the reports and finds genuinely tragic any difficulties, suffering, or abuse that minors or others might have faced or continue to face in the closed, insular religious polygamist communities that exist in Utah and the broader cultural region ranging from Alberta, Canada down to Northern Mexico. This court’s role is to weigh the constitutionality of the specific issue before it. The social harm posed by the practice under consideration is a relevant focus of inquiry, but evidence must be proffered that the court can properly recognize at this phase of the proceeding. The social harms implied by Reynolds arising from Mormon polygamy—that it introduced practices of Asiatic and African peoples into Christian Western civilization and assisted the Mormon Church in maintaining despotic, antidemocratic patriarchal control over the entire region, threatening all of American democracy—are no longer relevant, to say the least, regardless of Defendant’s protestations to the contrary. See Holm, 2006 UT at ¶ 167 n.20, 137 P.3d at 770 (Durham, J., dissenting in part) (citing Maura Strassberg, The Crime of Polygamy, 12 TEMP. POL. & CIV. RTS. L. REV. 353, 406 (2003) for the observation that while the “perceived social danger may have justified the criminalization of polygamy during the nineteenth and early twentieth centuries, . . . fundamentalist polygyny does not today pose the same kind of threat to federal and now state sovereignty over significant areas of the West”). But, different from the nineteenth
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Such conduct may even, as was suggested in Green, be correlated with the practice of polygamy in a community that has isolated itself from the outside world, at least partially in fear of criminal prosecution for its religious practice. . . . [But] despite the difficulties that are always associated with gathering evidence in closed societies, the state is held to the burden of proving that individuals have engaged in conduct that is criminal because it is associated with actual harm. The State of Utah has criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse. Any restrictions these laws place on the practice of religious polygamy are almost certainly justified. However, the broad criminalization of the religious practice itself as a means of attacking other criminal behavior is not.
Id. (emphasis added). Such stories are tragic; the court believes, however, that striking the
cohabitation prong could actually make prosecuting the underlying crimes easier. It seems to the
court that the Statute has unintentionally become a bottleneck to the straightforward prosecution
of these other crimes precisely because of the State’s general policy not to prosecute religiously
motivated polygamy under the Statute in the absence of age concerns or evidence of “collateral”
crimes. With the cohabitation prong stricken, the Statute can no longer function as this kind of
barrier, and investigators and prosecutors can focus directly on the independent crimes that are
being committed, if any. Accordingly, despite the gravity of this concern, the court finds that the
cohabitation prong not only is not narrowly tailored to advance a compelling State interest but
that it actually inhibits the advancement of this compelling State interest of “protecting
vulnerable individuals from exploitation and abuse.” Green, 2004 UT at ¶ 40, 99 P.3d at 830.
For all of these reasons, the cohabitation prong of the Statute cannot survive strict
scrutiny and must be stricken as a facial violation of the free exercise of religion under the First
Amendment.
century, this is an era in which women have received full legal and moral personhood in society. The court believes that with the cohabitation prong stricken, the communities engaging in religious cohabitation will have less of a need to be underground and the State can more directly prosecute the independent crimes that are sometimes alleged to be rampant in those communities. Women who have and are aware of their rights will be less likely to end up in abusive situations.
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3. Heightened Scrutiny under Smith’s Hybrid Rights Analysis In the alternative, Plaintiffs’ claims also exemplify a hybrid rights situation of the type identified by Justice Scalia writing for the majority in Smith. “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” 494 U.S. at 881. In fact, “it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.” Id. at 882. This is the case envisioned by Justice Scalia because Plaintiffs’ various colorable constitutional claims relating to the cohabitation prong of the Statute, including a claim under freedom of association, are “reinforced by Free Exercise Clause concerns.” Id. In considering constitutional challenges under the Smith hybrid rights paradigm, the Tenth Circuit has observed that Smith “carved out an exception for ‘hybrid rights’ claims, holding that a party could establish a violation of the free exercise clause even in the case of a neutral law of general applicability by showing that the challenged governmental action compromised both the right to free exercise of religion and an independent constitutional right.” Grace United Methodist Church v. City of Cheyenne Board of Adjustment, 451 F.3d 643, 655 (10th Cir. 2006). In Axson-Flynn v. Johnson, the Tenth Circuit explained that “when a free exercise claim is coupled with some other constitutional claim (such a free speech claim), heightened scrutiny may be appropriate.” 356 F.3d 1277, 1295 (10th Cir. 2004). The Tenth Circuit had earlier observed the “difficulty of applying the Smith hybrid-rights exception.” Swanson by & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998). But the Swanson Court held that a hybrid rights claim under Smith “at least requires a
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colorable showing of infringement of recognized and specific constitutional rights.” Id. (emphasis added). The Court did not, however, at that time further define what a “colorable claim” for hybrid rights purposes would entail because plaintiffs there had merely invoked “a general right such as the right to control the education of one’s child” rather than a specific colorable constitutional claim. Id. The Court in Axson-Flynn provided the definition of a “colorable claim” that is controlling for the present analysis, holding that “colorable” in the hybrid rights context under Smith means that a plaintiff “must show a fair probability or likelihood, but not a certitude, of success on the merits” on the companion constitutional claim. Axson-Flynn, 356 F.3d at 1296-97.65
The court finds that each of Plaintiffs’ companion constitutional claims—the Freedom of Association claim, the Substantive Due Process Claim, the Equal Protection Claim, the Free Speech Claim, or the Establishment Clause claim, each as argued in Plaintiffs’ Memorandum in Support of their Motion for Summary Judgment (Dkt. No. 50), and each largely or entirely unopposed by Defendant (with the exception of the Substantive Due Process claim)—makes a “colorable showing” of a constitutional violation, thus requiring heightened scrutiny of the Statute under Smith. Swanson, 135 F.3d 694, 700 & n.5; Axson-Flynn, 356 F.3d at 1295-97.
As discussed above and for those reasons, the cohabitation prong of the Statute cannot withstand heightened scrutiny as to any compelling state interest and must be stricken when reviewed against that standard.
65 “Our approach strikes a middle ground between the two extremes of painting hybrid-rights claims too generously and construing them too narrowly. . . . The adoption of a ‘non-frivolous’ standard would open the floodgates for hybrid-rights claims. . . . On the other hand, it makes no sense to adopt a strict standard that essentially requires a successful companion claim because such a test would make the free exercise claim unnecessary. If the plaintiff’s additional constitutional claim is successful, he or she would typically not need the free exercise claim and the hybrid-rights exception would add nothing to the case.” Axson-Flynn, 356 F.3d at 1296-97 (emphasis in original).
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C. Rational Basis Review under the Due Process Clause As noted above, Plaintiffs’ counsel stated at oral argument that, given the Supreme Court’s decision in Lawrence, “the narrowest ground upon which this court can find for the plaintiff is under the Due Process Clause.” (Tr. Hrg. Jan. 17, 2013, at 47:24-25 [Dkt. No. 75].) The court finds that the cohabitation prong does not survive rational basis review under the substantive due process analysis; accordingly, it need not consider Plaintiffs’ various other claims under the lower standards of review corresponding to those claims. Though the court has followed the Tenth Circuit’s lead in Seegmiller as to the application of Lawrence to the fundamental rights question, Lawrence becomes controlling for the rational basis review analysis. Following the Eleventh Circuit in Williams IV, the Tenth Circuit held in Seegmiller that Lawrence applied rational basis review in striking down Texas’ homosexual sodomy statute. Seegmiller, 528 F.3d at 771. In doing so, the Seegmiller Court also stated that “no one disputes a right to be free from government interference in matters of consensual sexual privacy.” Id. at 769. Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence. The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the Statute, “it is, of course, the state that has equated private sexual conduct with marriage.” (Pls.’ Opp. to Def.’s Mot. Summ. J. 25 [Dkt. No. 72].) That is, in the case of people who have not even claimed to be legally married—are not making any claim to legal recognition of their unions or the network of laws surrounding the institution of marriage—“[i]t is the state that is treating the relationship as a form of marriage and prosecuting on that basis.” (Id.) As such, this, in effect, criminalizes “the private consensual relations of adults.” (Id.) Each of the State interests identified in Green surface again, this time to be
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considered under rational basis review. Once again, the court looks to Chief Justice Durham’s astute and commanding analysis66 in recognizing the concern that the Holm majority’s approach “may give the impression that the state is free to criminalize any and all forms of personal relationships that occur outside the legal union of marriage.” Holm, 2006 UT at ¶ 185, 137 P.3d at 778 (Durham, C.J., dissenting in part).
While under Lawrence laws criminalizing isolated acts of sodomy are void, the [Holm] majority [and Defendant here] [seem] to suggest that the relationships within which these acts occur may still receive criminal sanction. Following such logic, nonmarital cohabitation might also be considered to fall outside the scope of federal constitutional protection. Indeed, the act of living alone and unmarried could as easily be viewed as threatening social norms. Id. Interestingly, Defendant argued that “[n]either Utah’s constitutional provision banning polygamy, nor the State’s bigamy statute criminalizing polygamy, prohibit Plaintiffs’ private sexual conduct.” (Def.’s Mem. Supp. Cross-Mot. and Resp. 10 [Dkt. No. 56].) But returning to Defendant’s counsel’s position in his exchange with the court at oral argument, the adulterous cohabitation in “Scenario 3” would not be actionable whereas the religious cohabitation described in “Scenario 4” would violate the Statute. (Tr. Hrg. Jan. 17, 2013 11:23-13:4 [Dkt. No. 75].) The only difference between the two examples is the religious element and the resulting belief of participants to be justified in holding themselves out to the public as “husband” and “wife” despite knowing that their “marriage” is not a legal union in the eyes of the State. Both scenarios—the adulterous cohabitation and the religious cohabitation—“involve minors” as the children born to women involved in such relationships, “involve public conduct,” and involve “economic implications to [women] and children.” (Def.’s Mem. Supp. Cross-Mot. and Resp. 10 [Dkt. No. 56].)
66 Indeed, the court found her Holm dissent so comprehensive, persuasive, and germane that it would have preferred to simply adopt it in its entirety as the answer to the conundrum presented to it in this case, if there had been some structural way to coherently do so.
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Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation,
however, is subject to prosecution at the limitless discretion of local and State prosecutors,
despite a general policy not to prosecute religiously motivated polygamy. The court finds no
rational basis to distinguish between the two, not least with regard to the State interest in
protecting the institution of marriage:
Essentially, the Court’s decision in Lawrence simply reformulates the longstanding principle that, in order to “secure individual liberty, . . . certain kinds of highly personal relationships” must be given “a substantial measure of sanctuary from unjustified interference by the State.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 . . . ( 1984). . . . W hether referred to as a right of “intimate” or “intrinsic” association, as in Roberts, 468 U.S. at 618, a right to “privacy,” as in Griswold v. Connecticut, 381 U.S. 479, 485 . . . ( 1965), and Eisenstadt v. Baird, 405 U.S. 438, 453 . . . (1972), a right to make “choices concerning family living arrangements,” as in Moore v. City of East Cleveland, 431 U .S. 494, 499 . . . (1977) (plurality), or a right to choose the nature of one’s personal relationships, as in Lawrence, 539 U .S. at 574, this individual liberty guarantee essentially draws a line around an individual’s home and family and prevents governmental interference with what happens inside, as long as it does not involve injury or coercion or some other form of harm to individuals or society.
Holm, 2006 UT at ¶ 186, 137 P.3d at 778 (Durham, C.J., dissenting in part) (emphasis added).
This court shares serious concerns about the potential for injury and harm in closed religious
polygamist communities, but notes that each such crime can and should be prosecuted on its own
independent basis under the Utah statutes specifically designated for those purposes, including
“criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and
child abuse.” Id. at ¶ 176, 137 P.3d at 775. Defendant referred to various reports documenting
such abuses in Utah’s religious polygamist communities. “But based on stories like these, Utah
has made a legislative policy determination that the practice of polygamy is harmful to society
and therefore should be prohibited.” (Def.’s Reply 11 [Dkt. No. 73].) This cannot be a rational
basis for the cohabitation prong of the Statute, however, because the State has specifically
formulated a general policy not to prosecute religiously motivated polygamy, though when it has
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proceeded anyway, it has invariably been against religiously cohabiting individuals, usually in cases in which the defendant has been convicted of the “collateral crime” at issue anyway. Again, the court finds that there can be no rational basis for this approach, particularly under Lawrence and its focus on the deeper liberty interests at issue in the home and personal relationships.
Finally, as noted above, with regard to the State’s “interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status,” Green, 2004 UT at ¶ 39, 99 P.3d at 830, the court similarly finds that the cohabitation prong of the Statute is not rationally related to this interest. This is because, as observed by Chief Justice Durham, it is “difficult to understand how those in polygamous relationships that are ineligible to receive legal sanction are committing welfare abuse when they seek benefits available to unmarried persons.” Id. at ¶ 181, 137 P.3d at 777.
The cohabitation prong of the Statute does not survive rational basis review and must be stricken as a violation of substantive due process under Lawrence.
D. Void for Vagueness under the Due Process Clause Plaintiffs also argue that the Fourteenth Amendment’s Due Process Clause “prohibits the states . . . from enacting criminal laws so vague as to render it impossible for citizens to know in advance whether he or she is in compliance with them.” (Pls.’ Mem. Supp. Mot. Summ. J. 9 [Dkt. No. 50].) “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Gonzales v. Carhart, 550 U.S. 124, 148-149 (U.S. 2007) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). Unlike in Carhart, the Statute fails both requirements. The
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issues with the Statute’s interpretation, requiring extensive familiarity with the history of the federal government’s nineteenth-century prohibition of Mormon polygamy and Utah’s quest for statehood in the same time period, are discussed above. This invites skepticism about whether the Statute gives Utah residents “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Carhart, 550 U.S. at 149 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
But the more glaring problem with the Statute is its “arbitrary or discriminatory enforcement.” Id. “The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review.” Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984) (emphasis added). Unlike in Roberts, the Statute implicates these concerns. There is no discernible limit to prosecutorial discretion, and, in fact, prosecution seems to have been random at best over the decades. And virtually all prosecutions seem to have been targeted at religiously motivated cohabitation, as noted above.
Here, the State seems to have various policies about whether to prosecute polygamists. Defendant himself has sent mixed signals about his intention to prosecute, currently claiming in an affidavit (when it was expedient for his motion to dismiss based on mootness) that he has established a policy that his office will not prosecute religiously motivated cohabitation (or cohabitation at all) absent the presence of some collateral crime. (Second Buhman Aff. ¶ 8 [Dkt. No. 47-1]; see also Def.’s Mem. Supp. Mot. Dismiss for Mootness at [4] [Dkt. No. 47].). But Defendant disclaims adherence to this policy by any successors in his office. Id.
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These various policies create substantial uncertainty about whether one will be prosecuted under the Statute if engaging in religiously motivated cohabitation, or simple cohabitation with no religious motivation, or for one but not the other, or even about whether the Statute is moribund as a result of widespread prosecutorial inaction. The apparently limitless prosecutorial discretion in whether and whom to prosecute under the Statute “vests virtually complete discretion in the hands of [law enforcement and prosecutors] to determine whether” people cohabiting in the State of Utah for whatever reason, but particularly those involved in religiously motivated cohabitation, have violated the Statute’s cohabitation prong. Carhart, 550 U.S. at 150 (quoting Kolender, 461 U.S. at 358 (invalidating a statute regulating loitering)).
The cohabitation prong is therefore void for vagueness and will be stricken. III. “PURPORTS TO MARRY” IN THE 1973 STATUTE
A. Construction of the Statute The court has found the phrase “or cohabits with another person” to be unconstitutional under various constitutional provisions and has ordered it to be stricken. With the cohabitation prong thus stricken, the Statute now reads as follows: “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.” Utah Code Ann. § 76-7101(1) (2013). As noted above, the court must interpret the Statute in conformity with the broad construction of the Utah Supreme Court’s most recent consideration of the Statute in Holm. As a result, striking the cohabitation prong does not end the court’s analysis because the phrase “purports to marry another person” becomes similarly problematic under the Holm majority’s interpretation.
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The Holm majority agreed that “purports” means “to profess or claim falsely; to seem to be.” 2006 UT at ¶ 17, 137 P.3d at 733. The perplexity of the Holm majority’s construction of the term “marry” (as discussed in Part II.A above), however, requires the court’s further attention. As noted above, the Holm majority ultimately concluded that “the bigamy statute does not require a party to enter into a second marriage (however defined) to run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s terms.” Id. at ¶ 22, 137 P.3d at 734 (emphasis added).
Under this broad interpretation of the term “marry,” the phrase “purports to marry another person” raises the same constitutional concerns addressed in relation to the cohabitation prong above. But the court cannot resolve this difficulty by similarly striking the “purports to marry” prong because without it, the Statute becomes both legally and syntactically meaningless. And yet, it is not the role of federal courts in the constitutional framework of checks and balances to “rewrite a state law to conform it to constitutional requirements.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988). The court must therefore apply the “canon of constitutional avoidance,” under which “[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Carhart, 550 U.S. at 153 (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (internal alterations and quotation marks omitted)). “Courts employ two mechanisms to preserve unconstitutional statutes from wholesale invalidation. First, if a statute is readily susceptible to a narrowing construction that will remedy the constitutional infirmity, the statute will be upheld. If the language is not readily susceptible to a narrowing construction, but the unconstitutional language is severable from the remainder of the statute, that which is constitutional may stand while that which is unconstitutional will be rejected.”
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Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000)
(internal quotation marks and citations omitted).
As discussed in Part II above, the unsalvageable cohabitation prong has been stricken as
unconstitutional.67 But as to the remainder of the Statute, “[i]t is well-settled that a federal court
must uphold a statute if it is ‘“readily susceptible” to a narrowing construction that would make
it constitutional’.” Id. (quoting Am. Booksellers, 484 U.S. at 397). To be “readily susceptible” to
a “narrowing construction that would make it constitutional,” such narrowing or alternative
67 “In order to determine whether partial invalidation of a state statute is appropriate, federal courts look to state law.” Davidson, 236 F.3d at 1195. “Under Utah law, ‘When reviewing the construction of statutes, the general rule is that statutes, where possible, are to be construed so as to sustain their constitutionality. Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done.’” J.R. v. State of Utah, 261 F. Supp. 2d. 1268, 1295 (D. Utah 2003) (quoting State of Utah v. Lopes, 1999 UT 24, ¶ 18, 980 P.2d 191). This is especially the case if the court determines that “the legislature would have passed the statute without the objectionable part.” Id. (internal quotation marks and citation omitted); Doe v. Rampton, 366 F. Supp. 189, 199 (D. Utah 1973) (Anderson, J., concurring in part and dissenting in part) (“A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. . . . But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.”). This is often obvious based on “the inclusion within a statute of a ‘saving clause’” or “severability clause.” Id. (quoting Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 779 (Utah 1994)).
Where, as here, there is no severability clause, the court considers “whether the statutory provisions are so dependent upon each other that the court should conclude the intention was that the statute be effective only in its entirety.” Id. (internal quotation marks and citations omitted). Moreover, “[t]he presence or absence of a severability clause is rarely determinative of the severability of a statute.” EEOC v. Plessey, Inc., No. 78-1383, 1984 U.S. Dist. LEXIS 18709 (D. Kan. Mar. 12, 1984) (holding that an “unconstitutional legislative provision is severable even though the [Act] contains no severability clause, because neither the express language of the statute nor the Act’s legislative history makes it ‘evident that the legislature would not have enacted’ the remainder of the Act in the absence of the [invalid part of the Act]. See Buckley v. Valeo, 424 U.S. 1, 109 . . . (1976). Mere uncertainty about the legislature’s intent is insufficient to satisfy the test announced in Buckley v. Valeo.”). Here, the court has found that the cohabitation prong is severable in its unconstitutionality because the rest of the Statute is not “so dependent upon [the cohabitation prong] that the court should conclude the intention was that the statute be effective only in its entirety.” J.R., 261 F. Supp. 2d. at 1295. This is particularly the case under the court’s “narrowing construction” of the rest of the Statute “that would make it constitutional,” as further discussed below. Davidson, 236 F.3d at 1194. Here, therefore, as in J.R., the court finds that the cohabitation prong is severable because “[t]o the extent, then, that [the cohabitation prong] may be denied conclusive effect under the United States Constitution . . . the balance of [the Statute] appear[s] to be severable from the affected [clause] and [does] not depend upon [the cohabitation prong] to achieve [its] purposes.” Id. at 1296.
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construction must be “reasonable and readily apparent.” Id.; see also Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998) (statute must be ‘genuinely susceptible’ to narrowing construction); City of Houston v. Hill, 482 U.S. 451, 468 (1987) (‘fairly’ or ‘obviously susceptible’); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975) (‘easily susceptible’).
The Statute can be saved after striking the cohabitation prong by adopting Chief Justice Durham’s interpretation of the “purports to marry” phrase (and the term “marry”) from her dissent in Holm as the “reasonable and readily apparent” narrowing construction.
B. Understanding the Enabling Act and the Irrevocable Ordinance As explained in Part II.A above, the Holm majority held that “the plain meaning of the term ‘marry,’ as it is used in the bigamy statute, supports our conclusion that it encompasses both marriages that are legally recognized and those that are not.” Holm, 2006 at ¶ 21, 137 P.3d at 734 (emphasis added). This means, according to the Holm majority, that “an unlicensed, solemnized marriage can serve as a subsequent marriage that violates the bigamy statute,” id. at ¶ 26, 137 P.3d at 735, meaning also that the term “marry” included “cohabitation alone” as “constitut[ing] bigamy pursuant to the statute’s terms.” Id. at ¶ 22, 137 P.3d at 734. The Holm Court settled on this very broad construction of the term “marry” based in part on a historical analysis of the federal government’s nineteenth-century campaign against Mormon polygamy, Utah’s bid for statehood including the Enabling Act in 1894 requiring that Utah ensure that “polygamist or plural marriages are forever prohibited” in Utah as a condition for joining the Union as a State, and the Irrevocable Ordinance to this effect that was ultimately included in the 1895 Utah State Constitution. In fact, the Holm majority’s analysis of the meaning of the term “marry” appears to have been driven largely by a desire to conform to its perception of the “legislative history” relevant to the nineteenth-century federal anti-polygamy
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campaign and specifically the relation between the Utah constitutional convention’s peculiar decision to refer in the State Constitution to the territorial law prohibiting polygamy, see UTAH CONST. art. XXIV, § 2, and the “Irrevocable Ordinance” included in article III, section 1 of the Utah Constitution. See Holm, 2006 at ¶¶ 40-48, 137 P.3d at 739-41.
Congress’s Utah Enabling Act of 1894 culminated a long road to statehood for Utah—an effort extending from 1849 to 1894. See Society of Separationists, 870 P.3d at 922-929. In relevant part, the Enabling Act required in Section 3 that
[t]he Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not to be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said Convention shall provide, by ordinance irrevocable without the consent of the United States and the people of said State First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited. Ch. 138, 28 Stat. 107 (1894), 1A Utah Code Ann. 44 (2013) (emphasis added). In conformance with this provision of the Enabling Act, Utah’s constitutional convention included the following “Irrevocable Ordinance” in article III of the 1895 Utah State 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 a ccount of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited. UTAH CONST. art. III, § 1. Finally, the framers of the Utah Constitution included specific reference to the 1892 territorial law prohibiting polygamy in the general provision continuing territorial laws:
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All laws of the Territory of Utah now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the Legislature. The act of the Governor and Legislative Assembly of the Territory of Utah, entitled, “An Act to punish polygamy and other kindred offenses,” approved February 4th, A.D. 1892, i n so far as the same defines and imposes penalties for polygamy, is hereby declared to be in force in the State of Utah.
UTAH CONST. art. XXIV, § 2.
On the basis of this historical background, the Holm majority concluded that “[t]he
framers of our state constitution viewed the reaffirmation of the 1892 territorial law
criminalizing bigamy as directly related to the irrevocable ordinance.” Id. at ¶ 46, 137 P.3d at
741. Thus, “the framers of our state constitution understood the irrevocable ordinance to mandate
the prevention of polygamy and not to merely prohibit government recognition of polygamy.” Id.
at ¶ 46, 137 P.3d at 741. At the very least, the Enabling Act and resulting Irrevocable Ordinance
raise “equal footing” concerns. See Society of Separationists, 870 P.2d at 928 (noting that “some
have questioned the constitutionality of the requirement that the United States government agree
to any revocation of the ordinance”).68 But the court finds it remarkable to contemplate the
deeper implications of the Holm majority’s interpretation: that a State Constitution would not
only define and limit the powers of the State government as against its citizens but would also
purport to limit the liberty of those citizens. The court finds it a worrisome proposition that a
68 “In particular, delegation of part of the amending process of a state constitution to the federal government raises the question of whether the state has been admitted into the Union on an equal footing with sister states.” John J. Flynn, Federalism and Viable State Government--The History of Utah's Constitution, 1966 UTAH L. REV. 311, 323 n.89. (citing Coyle v. Smith, 221 U.S. 559 (1911)). But see Holm, 2006 UT ¶ 40 n.9, 137 P.3d at 739 (dismissing Holm’s equal footing argument based on Potter v. Murray City, 760 F.2d 1065, 1067 (10th Cir. 1985)). In Potter, the Tenth Circuit observed that “[i]f the original ban on polygamy and plural marriage was invalid, the State’s power to incorporate such provisions in its Constitution and its laws remained. If there was an unlawful coercion in the Enabling Act, the Supreme Court of Utah observed some time ago that there has been no attempt to change the State’s laws, ‘nor is such attempt likely.’” 760 F.2d at 1067 (quoting State v. Barlow, 153 P.2d 647, 654 (Utah 1944)). Potter’s exceptionally speculative observation is, however, beside the point because the equal footing argument is unnecessary under the narrowing construction that the court adopts today from Chief Justice Durham’s Holm dissent.
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Constitution stray from limiting government’s powers and protecting citizens’ rights to explicitly limiting the liberty of citizens. In a republican form of government, the State has plenty of opportunity to restrict citizens’ actions, in conformance with a rights-protecting Constitution, through legislative activity and need not do so in the Constitution itself. Chief Justice Durham’s interpretation of the historical background, and the Enabling Act and Irrevocable Ordinance in particular, also alleviates this broad concern raised by the Holm majority’s position.
In fact, the Holm majority allowed that Chief Justice Durham’s differing historical interpretation of this history, and particularly the Irrevocable Ordinance, was “one plausible interpretation” that “comports with 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.” Holm, 2006 UT 31, ¶ 42, 137 P.3d at 739. The court agrees that Chief Justice Durham’s historical analysis is a “plausible interpretation” of the historical record and meaning of the events that took place during Utah’s very lengthy and difficult bid for statehood. In truth, the court finds it not only “plausible” but likely; Chief Justice Durham’s interpretation is at least “reasonable and readily apparent,” rendering the “purports to marry” phrase of the Statute “readily susceptible” to her narrowing construction, which the court now adopts. Davidson, 236 F.3d at 1194. Under this interpretation, at the time when the doctrine of common-law marriage could potentially render religious cohabitation a legal union, the Irrevocable Ordinance was intended to prohibit Utah’s state government from ever legally sanctioning or recognizing such polygamous “marriages.”
Before addressing the historical background, Chief Justice Durham noted that she did not believe that “the [1973] legislature, having so carefully structured the various prerequisites of marriage in state law, as well as the rights, duties, and obligations that state law accords married
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persons, would use the term ‘marry’ in [the Statute], alone among all statutory provisions, to
mean not only entry into a legally recognized marriage but also entry into any relationship that is
accepted as marriage in whatever custom or tradition the parties consider applicable.” 2006 UT
at ¶ 138, 137 P.3d at 760 (Durham, C.J., dissenting in part). The court shares Chief Justice
Durham’s “view” of the Statute, that its purpose
is to impose criminal penalties on those who purport to enter a legal union that is in fact void under [Utah Code Ann.] section 30-1-2(1). I understand the declaration in section 30-1-2, that certain “marriages” are prohibited and void, to mean that any attempt by those described to enter into a legal union in fact results only in a purported marriage. The contrary reading suggested in the concurrence simply leads to the perplexing question, in what sense can the state legislature prohibit and declare void a relationship that does not claim any legal status? The majority attempts to bolster the logic of its position by pointing to definitions of bigamy that refer to “marrying” one person while being legally married to another. [2006 UT] at ¶ 22 n.6. The majority concludes that such definitions are “nonsensical if the term ‘marry’ is considered limited to legally recognized marriage.” [id.] In my view, the majority too easily discounts the possibility that such definitions were simply inartfully drafted. I suspect that our legislature in fact recognized that such definitions made no logical sense, and this is why [the Statute] criminalizes “purport[ing] to marry,” rather than “marrying,” one person while legally married to another.
Id. at ¶ 138 n.4, 137 P.3d at 761.69 Also, the court agrees that “the [Holm] majority fails to
explain why the breadth of [the cohabitation prong] should conclusively determine our
69 Helpfully, Chief Justice Durham provided a number of directly relevant examples of this:
Significantly, this court has commonly used the phrase “purported marriage” to mean a marriage that was represented as legally valid by at least one party, but that in fact was void under state law. See, e.g., Kent v. Kent, 28 Utah 2d 34, 497 P.2d 652, 653 (Utah 1972) (describing as a “purported marriage” the plaintiff’s union with a man who was “unable to contract a valid marriage” because he was married to someone else); Buck v. Buck, 19 U tah 2d 161, 4 27 P.2d 954, 955 ( Utah 1967) (describing as a “purported marriage” a “union” that was “legally invalid” because the man’s divorce was not yet final); Thomas v. Children’s Aid Soc’y, 12 U tah 2d 235, 364 P .2d 1029, 103 1 (Utah 1961) (describing as a “purported marriage” a marriage that was “void ab initio” because one of the parties was already married); Cecil v. Cecil, 11 Utah 2d 155, 356 P.2d 279, 280-81 (Utah 1960) (describing as a “purported marriage” a marriage that was legally invalid because one party was judged incompetent); Popp v. Roth, 9 Utah 2d 96, 338 P.2d 123, 124 (Utah 1959) (stating that a man who “purportedly married” a woman when he was already married did not “enter into a valid marriage”); In re Vetas’ Estate, 110 Utah
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interpretation of the parallel ‘purports to marry’ prong.” Id. at ¶ 139, 137 P.3d at 761. Based on
this “reasonable and readily apparent” narrowing construction of “marry” and, accordingly,
“purports to marry” under the Statute, the court agrees with Chief Justice Durham that the
“purports to marry” prong should be interpreted “as referring to an individual’s claim of entry
into a legal union recognized by the state as marriage. The phrase does not encompass an
individual’s entry into a religious union where there has been no attempt to elicit the state’s
recognition of marital status or to procure the attendant benefits of this status under the law, and
where neither party to the union believed it to have legal import.” Id. at ¶ 141, 137 P.3d at 763-
64.
This narrowing construction is actually supported by Chief Justice Durham’s informed
and logical interpretation of the same historical background which so concerned the majority,
arguably precipitating its broad interpretation of “marry” and “purports to marry.” Chief Justice
Durham explained that the Irrevocable Ordinance (i.e. article III, section 1 of the Utah State
Constitution)
declares that “polygamous or plural marriages are forever prohibited.” Utah Const. art. III, 1 (emphasis added). Here, as elsewhere in Utah law, I understand the term “marriage” to refer only to a “legal union.” See, e.g., Utah Const. art. I, 29(1) (“Marriage consists only of a legal union between a man and a woman.”). Understood in this way, article III, section 1, by its plain language, does not prohibit private individual behavior but instead prevents Utah’s state government,
187, 170 P .2d 183, 184 ( Utah 1946) (describing as a “purported marriage” a marriage that was not “solemnized as r equired by our statutes,” and was thus void); Jenkins v. Jenkins, 107 U tah 239, 1 53 P.2d 262, 26 3 (Utah 1944) (describing as a “purported marriage” a marriage that was void under the law because one party’s divorce was not final when the marriage occurred); In re Waters’ Estate, 100 Utah 246, 113 P.2d 1038, 1039 (Utah 1941) (describing as a “purported marriage” a marriage that was void because one party's prior divorce had not been valid); Sharp v. Seventh Judicial Dist. Court, 81 Utah 236, 17 P.2d 261, 262-63 (Utah 1932) (describing as a “purported marriage” a marriage that was void under the law as it then existed because one party suffered from epilepsy and syphilis).
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to whom the ordinance is addressed, from recognizing a particular form of union as a “marriage.”
The majority concludes that article III, section 1 is a restriction on individual rights rather than on state government. It justifies this conclusion primarily by reference to the proceedings of Utah’s 1895 c onstitutional convention, which reflect the drafters’ concern with following the federal requirements set forth in the Utah Enabling Act, ch. 138, 28 Stat. 107 ( 1894). Specifically, the majority emphasizes some delegates’ concern that the federal government intended, through the Enabling Act, not only to prevent Utah from recognizing polygamous unions as valid marriages, but also to require that the state impose criminal penalties on polygamy. However, the majority’s own analysis makes it clear that the drafters did not address this concern by revising article III, section 1; rather, they simply reaffirmed the validity of a territorial statute. See Utah Const. art. XXIV, 2 (declaring in force an 1892 law “in so far as the same defines and imposes penalties for polygamy”). Moreover, that statute criminalized only polygamous marriage, not polygamous behavior. 1892 Utah Laws ch. VII, 1, at 56 (defining “polygamy” as “ha[ving] a husband or wife living” and “marr[ying] another,” or as “marr[ying] more than one woman” on the same day). The majority reasons that because the drafters thought it n ecessary to affirm the criminalization of polygamous marriage in article XXIV, they must therefore have intended the reference to polygamous marriage in article III, section 1 t o place all private polygamous relationships outside constitutional protection.
My review of the history of Utah’s statehood leads me to conclude otherwise, and further bolsters my understanding of the term “marriage” in article III, section 1. I read both the Enabling Act and the ordinance provisions, to the extent the latter can be identified with the former, as carrying forward a restriction that Congress had placed on U tah’s territorial government beginning with the Morrill Act, 12 Stat. 501 ( 1862). That statute provided that “‘all . . . acts and parts of acts heretofore passed by the said legislative assembly of the Territory of Utah, which establish, support, maintain, shield or countenance polygamy, be, and the same hereby are, disapproved and annulled.’” Cope v. Cope, 137 U.S. 682, 686, 11 S. Ct. 222, 34 L. Ed. 832 (1891) (quoting Morrill Act, ch. 126, § 2, 12 Stat. 501); see In re Handley, 7 U tah 49, 24 P . 673, 674 -75 (Utah 1890) (citing Morrill Act). Among the “acts” to which the Morrill Act referred was undoubtedly the law incorporating the LDS Church, passed in 1851 b y the Provisional State Government of the proposed State of Deseret. This law had granted the LDS Church full authority to conduct marriages of its members in accord with Church doctrine. When Deseret’s 1850 petition for statehood was denied and a territorial government was established instead, the territorial legislature revalidated the laws enacted by the provisional government. Dale L. Morgan, THE STATE OF DESERET 88 (1987) (citing 1852 Utah Laws 222, an October 4, 1851 joint resolution of the territorial legislature). Thus, after 1852, when the Church publicly recognized the doctrine of plural marriage, ceremonies of plural union performed according to Church practice were legally valid marriages under territorial law until the Morrill
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Act declared otherwise. This history demonstrates that the legal status of polygamous unions was a matter of concern. Accordingly, the language prohibiting plural or polygamous “marriage” in the Enabling Act and Ordinance provisions was likely intended to preclude the reenactment of laws granting polygamous unions legal recognition once Utah achieved statehood.
The above discussion illustrates that when the term “marriage” in the Ordinance provision is understood, as I believe it mu st be, as denoting a legal status, the meaning of the provision is plain and in accord with territorial history. It could then be argued that the provision establishes that, as a matter of constitutional law, the state’s refusal to recognize polygamous unions as legal marriages may not be construed as discriminatory treatment of those who engage in such unions as a m atter of religious practice. However, this case does not present that issue since, as discussed above, Holm has made no claim to legal recognition.
Additional history, far from demonstrating the drafters’ intent to exclude particular private behavior from access to constitutional protections, raises the possibility that the drafters anticipated some relief from governmental interference for those relationships already in existence. In addition to the provision criminalizing polygamous marriage, quoted above, the 1892 A ct contained a separate provision criminalizing unlawful cohabitation, which it defined as “any male person . . . cohabit[ing] with more than one woman.” Id. § 2, 1892 Utah Laws at 6. Yet, the unlawful cohabitation provision, unlike the polygamy provision, was not specifically mentioned in article XXIV, section 2. The unlawful cohabitation provision was therefore subject to the general statement in article XXIV, section 2 that “[a]ll laws of the Territory of Utah now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the Legislature.” Utah Const. art. XXIV, § 2 (emphasis added). Accordingly, that provision would remain valid only if the state courts did not deem it unconstitutional, and only as long as the legislature kept it in effect. It is not inconceivable that the drafters, while conceding that polygamous unions could never receive legal recognition, believed that private polygamous practice, including cohabitation with former “wives” and their children, might continue.
Id. at ¶¶ 149-53, 137 P.3d at 764-66 (footnote citations omitted).70
70 Chief Justice Durham further strengthened this analysis by noting that
[t]he “cohabits” prong of the current criminal bigamy statute, Utah Code section 76-7101(1), extends the definition of polygamy beyond that contained in the 1892 Act by incorporating, to a certain extent, the 1892 concept of unlawful cohabitation. Whereas under the 1892 Act a person would be guilty of polygamy only if he purported to marry two individuals at once, under section 76-7-101(1) a person is guilty of bigamy if he cohabits with one individual while married to another. See Utah Code Ann. § 76-7101(1). Thus, even if article XXIV, section 2 were interpreted as i mposing a
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The court has carefully evaluated the Holm majority and dissent’s competing interpretations of the historical record on this issue. Chief Justice Durham’s dissenting opinion provides a more persuasive and logical treatment of both the historical record and the relevant legal issues, particularly in light of the need for a “reasonable and readily apparent” alternative interpretation of the term “marry” and “purports to marry” upon striking the cohabitation prong as unconstitutional. Davidson, 236 F.3d at 1194. Accordingly, the court adopts the above quoted historical analysis for purposes of this opinion and finds the Statute “readily susceptible” to Chief Justice Durham’s narrowing construction of those terms on the basis of her historical treatment of the development of the Irrevocable Ordinance and its relevance to the Statute. This narrowing construction is necessary to save the Statute from being invalidated in its entirety, which would be required for the reasons analyzed in Part II, under the majority’s interpretation of those terms in the Statute. Instead, under this narrowing construction, the Statute remains in force, submitting anyone residing in Utah, knowing he has a wife or she has a husband or knowing the other person has a husband or wife, to prosecution for the crime of bigamy for entering into any further purportedly legal union.
CONCLUSION The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it. As a result, and to save the Statute, the court adopts the interpretation of “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent
constitutional requirement that polygamy, as defined in the 1892 Act, be criminalized, such a conclusion would have no bearing on the constitutionality of the “cohabits” prong of the current criminal bigamy statute. Holm, 2006 UT at ¶ 153 n.13, 137 P.3d at 766 (Durham, C.J., dissenting in part).
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The court does not at this time consider Plaintiffs’ claim under 42 U.S.C. § 1983. Accordingly, the court GRANTS IN PART Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant’s Cross Motion for Summary Judgment (Dkt. No. 55). The court also terminates as moot Plaintiffs’ Motion to Strike Defendant’s Cross-Motion for Summary Judgment. (Dkt. No. 60.) SO ORDERED this 13th day of December, 2013.
BY THE COURT: ______________________________ Clark Waddoups United States District Court Judge
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 Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 1 of 39

· Jonathan Turley (Pro Hac)

2000 H St., N.w.

Washington, D.C. 20052

(202) 994-7001

'

jturley@law.gwu.edu

Adam Alba, 13128 2167 N. Main st. Centerville, UT 84014 (801) 792-8785 adam.alba@gmail.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN,
Plaintiffs,
v.
GARY R. HERBERT, in his official capacity as Governor of Utah; MARK SHURTLEFF, in his official capacity as Attorney General of Utah; JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County,
Defendants.

) ) ) ) )
) CIVIL RIGHTS COMPLAINT
) ) JUDGE: _____________
) ) . CIVIL NO. _ _ _ _ ___
) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF

Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan

(hereinafter "Plaintiffs" or "Brown family") bring this Complaint and allege as follows:

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INTRODUCTION 1. In Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.
dissenting), Associate Justice Louis Brandeis described "the right to be left alone" as "the most comprehensive of rights, and the right most valued by civilized men." It is a right embodied in the protections of association, religion, speech, and privacy guaranteed by the United States Constitution. It is the right at the heart of this action on behalf of the Brown family and, by extension, thousands of unorthodox or non-traditional families in Utah. 2. The State of Utah does not (and presumptively cannot) criminalize consensual intimate relationships, including homosexual relationships, between unmarried adults. 3. Like officials in all states, Utah officials deal routinely with adults living together in intimate relationshipsi without marriage licenses, including individuals who produce children out of wedlock or through adulterous affairs. 4. Adults are allowed to live openly in such intimate relationships so long as they do not commit a collateral crime, such as acquiring multiple marriage ~ licenses in violation of anti-bigamy provisions. 5. While all other adults are allowed to live and have children in unmarried or adulterous relationships, those adults who live in such households pursuant to religious, as opposed to non-religious, reasons are subject to prosecution in i The terms "intimate relations" or "intimate relationships" are used in this Complaint to denote consensual adult relationships that include sexual contact.
2

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Utah. 6. The Brown family does not hold multiple marriage licenses, nor are its plural
relationships legitimated and sanctioned by the state. 7. The Browns are a plural family in which only one couple, Kody Brown and
Meri Brown, holds an official marriage license. 8. Despite the fact that the Browns have not obtained multiple marriage licenses,
they are subject to criminal prosecution (and have been threatened with such prosecution) solely because they call themselves a family in the eyes of their church.
9. Utah Code Ann. § 76-7-101(1) makes it a crime when aperson, "knowing he
has a husband or wife or knowing the other person has a husband or wife ... purports to marry another person or cohabits with another person." Utah Code Ann. § 76-7-101 (West 2010) [hereinafter "criminal bigamy law"]. 10. The criminal bigamy law criminalizes not just polygamous marriages but also an array of plural intimate relationships and associations of consenting adults. 11. By criminalizing religious-based plural families and intimate relationships under the criminal bigamy law, Utah officials prosecute private conduct· between consenting adults without requiring law enforcement officials to show harm to society or those involved. 12. The disparate treatment of polygamists denies them the basic liberties and equal protection under the law guaranteed by the First and Fourteenth Amendments of the United States Constitution.
. 3

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13. For these reasons, the Plaintiffs ask this Court to enjoin, preliminarily and permanently, all enforcement of Utah's laws banning and criminalizing polygamy. JURISDICTION AND VENUE
14. This Court has subject matter jurisdiction over this case under 28 U.S.C. § 1331 (Federal Question) because this action arises under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, a federal law; under 28 U.S.C. § 1343(a)(3) because this action is brought to redress deprivations, under color of state law, of rights, privileges, and immunities secured by the United States Constitution; and under 28 U.S.C. § 1343(a)(4) because this action seeks equitable relief under 42 U.S.C. § 1983, an Act of Congress.
15. Venue is proper in this Court pursuant to 28 U.S.c. § 1391(b) because Defendant Herbert resides in this district and all the Defendants reside in the State of Utah. Venue is also proper in this Court because a.substantial part of the events giving rise to the claim occurred in this district, including but not limited to the criminal investigation of the Brown family and the acts underlying the alleged crimes. NATURE OF THE ACTION
16. Through this action, pursuant to 42 U.S.C. § 1983, the Brown family seeks a declaration that Utah Code Ann. § 76-7-101 is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the
4

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United States'Constitution, and is unconstitutional under the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment to the United States Constitution. The Browns further seek a preliminary and permanent injunction preventing the Defendants from enforcing the aforementioned provisions in this paragraph against the Browns. 17. To the extent that Article III of the Utah State Constitution, Utah Code Ann. § 30-1-2,and Utah Code Ann. § 30-1-4.1 are used as the basis for the criminalization of plural relationships or families, the Brown family seeks a declaration that these laws are unconstitutional under the Due Process and Equal Protection Clauses of the Follrteenth Amendment to the United States Constitution and the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment to the United States Constitution. The Browns further seek a preliminary and permanent injunction preventing the Defendants from enforcing the aforementioned provisions in this paragraph against the Browns. 18. The Brown family does not seek a declaration that Article III of the Utah State Constitution, Utah Code Ann. § 30-1-2, or Utah Code Ann. § 30-1-4.1 are unconstitutional to the extent that they merely prohibit the official recognition of polygamous marriage or the acquisition of multiple state marriage licenses.
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19. The Browns have formed a plural family, motivated by their sincere religious beliefs and love for one another. They have not, however, sought official recognition of any polygamous marriage.
20. The Browns have been open in both Utah and Nevada about their plural family and their shared commitment to raising their children as a plural family unit.
21. The Browns have a long history of interaction with authorities, including but not limited to officials who participate in the "Safety Net" program, which works with polygamous families in various states, including- Utah, and Canada.
22. The criminal investigation of the Brown family was publicly announced after the Browns appeared on Sister Wives, a popular TLC network reality television program based on their family.
23. The Browns remain subject to potential prosecution due to their status as a plural family and have suffered personal injuries, including termination of employment, dueto the possibility of such prosecution.
24. Utah Code Ann. § 76-7-101 contravenes the right of consenting adults to create a family environment of their choosing-whether it is based on religious or non-religious values-including but not limited to the mere cohabitation of adults in a single household.
25. The Browns continue to visit relatives and associates in Utah on a regular basis and live only a couple of hours from the border of Utah.
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26. The Browns are also tied to Utah by their membership in the Apostolic United Bretheren ("AUB"), which is centered in Salt Lake City, Utah.
27. Due to the low number of AUB members in Nevada, the Browns cannot fully. perform their religious practices outside of Utah and must return to Utah to engage in certain religious practices.
28. The Brown family expects to move back to Utah in light of its strong connections to that state.
29. To enforce the rights afforded by the United States Constitution, the Brown family brings this action pursuant to 42 U.S.c. § 1983 for declaratory and injunctive relief against enforcement of Utah's laws banning and . criminalizing polygamy. The Browns also seek to recover all of their attorneys' fees, costs, and expenses incurred in this action pursuant to 42 U.S.C. § 1988, and any other relief that this Court may order.
30. The Brown family acknowledges that the Supreme Court previously held in Reynolds v. United States, 98 U.S. 145 (1879) that a state could criminalize polygamous marriages. The Browns believe, however, that Utah Code Ann. § 76-7-101 violates later decisions, including but not limited to Lawrence v. Texas, 539 U.S. 558 (2003). Moreover, even under Reynolds, the Browns believe that the scope of the criminal bigamy law goes beyond the permissible criminalization of multiple marriage licenses and intrudes upon purely private consensual associations and intimate expression between adults.
31. As stressed by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, 578
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(2003):
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give fonnal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cmmot dememl their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Id. (citations omitted) (internal quotation marks omitted).
PARTIES
PLAINTIFFS
32. PlaintiffKody Brown was a resident of Lehi; Utah, where he was civilly
married to PlaintiffMeri Brown, aIld spiritually married to Plaintiffs Janelle
Brown, Christine Brown, aIld Robyn Sullivall. In January 20 I0, he aIld the
Co-Plaintiffs fled Utah for fear that Utah law enforcement officials would
prosecute them under the state's criminal bigmny statute for maintaining a
plural family. He lived in Utah with his spiritual wives as a plural fmnily.
33. Plaintiff Meri Brown resided in Lehi, Utah, where she was civilly married to
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Plaintiff Kody Brown and joined in a plural family with all of the CoPlaintiffs. In January, 20IO, she and the Co-Plaintiffs fled Utah for fear that Utah law enforcement officials would prosecute them under the state's criminal bigamy statute for maintaining a plural family. 34. Plaintiff Janelle Brown resided in Lehi, Utah, where she considered herself spiritually married to Plaintiff Kody Brown and joined in a plural family with the Co-Plaintiffs. In January, 2010, she and the Co-Plaintiffs fled Utah for fear that Utah law enforcement officials would prosecute them under the state's criminal bigamy statute for maintaining a plural family. 35. Plaintiff Christine Brown resided in Lehi, Utah, where she considered herself spiritually married to Plaintiff Kody Brown and joined in a plural family with the Co-Plaintiffs. In January, 2010, she and the Co-Plaintiffs fled Utah for fear that Utah law enforcement officials would prosecute them under the state's criminal bigamy statute for maintaining a plural family. 36. Plaintiff Robyn Sullivan resided in Lehi, Utah, where she considered herself spiritually married to PlaintiffKody Brown and joined in a plural family with the Co-Plaintiffs. In January, 2010, she and the Co-Plaintiffs fled Utah for fear that Utah law enforcement officials would prosecute them under the state's criminal bigamy statute for maintaining a plural family.
DEFENDANTS
37. Defendant Gary Herbert is the Governor of Utah. In his official capacity, the Governor is the chief executive officer of the State of Utah. It is his
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· responsibility to ensure that the laws of t,he State are properly enforced. The Governor resides in the Governor's Mansion in Salt Lake City, Utah. He also maintains an office in the State Capital in Salt Lake City, Utah. 38. Defendant Mark Shurtleff is the Attorney General of Utah. In his official capacity, the Attorney General is the chief legal officer of the State of Utah. It is his duty to see that the laws of the State are uniformly and adequately enforced. The Attorney General maintains an office in the State Capital in Salt Lake City, Utah. 39. Defendant Jeffrey R. Buhman is the County Attorney for Utah County, where the Brown family resided before moving to Nevada. It is Buhman's duty to ensure that the laws of the State are adequately enforced in Utah County. Buhman has publicly stated that his office has investigated the Brown family and reserves the right to prosecute the Browns under the state criminal bigamy law. The County Attorney for Utah County maintains an office in Provo, . Utah. 40. The Defendants, and those subject to their supervision, direction, and control, are responsible for enforcing Utah's criminalization of polygamy. The relief requested in this action is sought against each of the Defendants; against each of the Defendant's officers, employees, and agents; and against all persons acting in cooperation with the Defendants, under their supervision, at their direction, and under their control.
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CONSTITUTIONAL PROVISIONS 41. The First Amendment to the United States Constitution provides: "Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. l. 42. The Fourteenth Amendment to the United States Constitution provides in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
FACTS THE SCOPE OF PLURAL FAMILIES IN UTAH 43. Plural families within Utah cover a wide range of religious and non-religious relations that include relations. based on polygyny, polyandry, and other forms of "group marriages." 44. The term "polygamy" generally refers to any form of plural marriage. While polygamy is often used to denote marriages composed of one husband and multiple wives (as opposed to monogamy), it can refer to any of three
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common fonns of plural marriage-'--polygyny, polyandry, and "group marriages." 45. Polygyny is specifically a plural marriage of a mail. and more than one wife, as inthe case of the Brown family. 46. Polyandry is specifically a plural marriage of a woman with more than one husband. 47. Finally, there are some families with multiple husbands and wives that are arranged in what are commonly referred to as "group marriages." These families are often based on shared social, political, or merely personal values. 48. While polygyny, polyandry, and group marriages are the three principal groups of polygamy, there is a fourth group that has a distinct history and meaning: polyamorists. 49. Polyp-mory is subject to ~ore varied definitions, but generally refers to consensual relationships where participants have more than one sexual partner, including long tenn commitments to multiple adult partners. 50. Under Utah laws, polyamorist relationships qualify as cohabitation and thus are treated as polygamy or bigamy. 51. None of these four fonns of plural relationships are exclusively based on religious tenets. Each has appeared in non-religious contexts and can be motivated by social, political, or simply personal concerns. 52. Polyandry and group marriages are particularly found in non-religious settings. Polyandrous families (and polyamorist relationships) were not
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uncommon in the San Francisco area in the 1960s, and group families were found throughout the United States and Canada during that decade. 53. Polygamy is currently practiced by millions of people around the world and remains common in some countries. 54. Utah officials estimate that there maybe almost 30,000 polygamists in Utah. 55. Historically, polygamy was found on virtually every continent at one time. 56. Many Native American tribes or nations practiced forms of polygamy, particularly polygyny, and many early Europeans in the frontier adopted the same practices. 57. Polygamy was particularly common among southeastern and Plains Native Ainerican tribes or nations. Notably, many of these tribes or nations were also communal and matrilineal, where descent is traced through the female line.
l
58. While polygyny is more common than polyandry, the latter has also been long practiced and is particularly present in both the United States and Canada.
59. Indeed, polyandrous families have been given legal protection in Saskatchewan. Winikv. Wilson Estate, [1999]1999 Sask. R. LEXIS 424, *21. Polyandry is also found in other parts of Canada.
60. The Canadian Supreme Court in British Columbia is currently considering a challenge to its criminalization of polygamy as a possible violation of human rights.
61. The Utah criminal bigamy statute uses the term bigamy as opposed to polygamy. Utah Code Ann.§ 76-7-101.
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62. Bigamy is generally the act of marrying one person while still legally married to another. Black's Law Dictionary 69 (3rd pocket ed. 2006).
63. Unlike polygamy, bigamy is often done without the knowledge of one or more spouses, representing plural marriage without the consent of a partner.
64. Unlike polygamy, bigamous defendants often seek and secure official recognition of their marriages.
65. Bigamy can involve multiple wives or multiple husbands. While only a handful of states in the United States outlaw polygamy per se, many prohibit bigamy generally. See Ariz. Const. art. 20 ~ 2; Me. Rev. Stat. Ann. tit. 17-A, § 551; Mass. Gen. Laws ch. 272, § 13; Mich. Compo Laws Ann. § 750.441; Miss. Code Ann. 97-27-43; N.M. Const. art. 21, § I; OK Const. art. I; Utah Code Ann. § 76-7-101; Va. Code Ann. § 18.2-363.
66. Bigamy in Utah is given a broad definition and has been applied against individuals who have not sought any official recognition of their plural families or relations.
67. The Utah criminalization of bigamy is tied directly to Article III of the Utah Constitution, which prohibits "polygamy," declaring that "[pJerfect 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." POLYGAMY AS A RELIGIOUS PRACTICE
68. While many polygamous families are not motivated by religious belief, the
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practice of polygamy is one of th,e ol.dest religious-b. ased practices in the world. 69. The Old Testament of the Bible, the foundation for both the Jewish and Christian faiths, contains favorable references to polygamy. Polygamy is also incorporated into Islamic beliefs and faiths like the AUB and Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). 70. Many of the central biblical figures from the Old Testament were polygamists, including Abraham, who had three wives (Genesis 16: 1, 16:3,25: 1); Moses, who had two wives (Exodus 2:21,18:1-6; Numbers 12:1); and David, who had eighteen wives (l Samuel 18:27, 25:39-44; 2 Samuel 3:3, 3:4-5, 5:13, 12:7-8, 12:24, 16:21-23). 71. The Bible teaches that these figures were chosen by God to lead His chosen people. For many Christians, the Bible is the literal word of God, who,
)
through the conduct of these central figures, is shown to approve of the practice of polygamy. 72. This reading ofthe Old Testament was once an accepted view among Christians. 73. Indeed, some Protestants described polygamy as the "ideal form of marriage." The preference for polygamy, for example, can be found in Europe among the Anabaptists in Munster in 1535-36. 74. Martin Luther stated publicly that his reading of the Bible affirmed the validity of polygamy, noting that the authorities should leave such questions
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to the personal choices of citizens:

I confess that I cannot forbid a person to marry several wives, for it does not contradict the Scripture. If a man wishes to marry more than one wife he should be asked whether he is satisfied in his conscience that he may do so in accordance with the word of God. In such a case the civil authority has nothing to do in the matter.

75. Some Protestants continue to form polygamous families as part of their

Christian faith.

76. The Jewish Talmud also makes reference to and apparent acceptance of the

existence of polygamy among Jewish families. For example, passages in the
I
Babylonian Talmud, Tractate Kethuboth 93a-93b, discuss how to deal with

estates after a man dies with multiple wives.

77. Polygamy is known to be practiced in Israel despite criminal provisions

against it. Polyamory is also practiced among Jews in the United States.
,
78. As with some fundamentalist Cqnstian and Jewish adherents, many Muslims

believe that polygamy, and specj,,fically polygyny, is an important part of their

faith.

,

i
79. While the exact number of wiveS is in dispute, the Prophet Muhammad was a I. I polygamist with at least four wi~es. I

80. Sharia law now generally enforces a limit offour wives for a Muslim man

under. Sura 4:3, but recognizes the right to plural marriage.

81. In the United States, the religion most cited in modem cases for practice of

polygamy is the LDS Church and, later, the FLDS.

82. Joseph Smith, the prophet and founder of the Mormon Church, not only

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attested to the divine origins of polygamy but was himself a polygamist. 83. Mormons previously based their religious belief in polygamy on the same Old
Testament passages discussed above and in the divine revelations God made to Smith. 84. Smith publicly disclosed his revelations on July 12, 1843 inNauvoo, Illinois (although Smith originally experienced these revelations in 1831), according
to the official History of the Church ("H~C."). H.C. 5: 501-07.
85. Under Smith's teachings, through "celestial marriage" and polygamy, men could become gods. Brigham Young, 111. of Discourses 269.
86. Joseph F. Smith, the sixth president of the LDS Church, directly tied the practice of polygamy to attaining ultimate salvation and elevation under the tenets of the faith: Some people have supposed that the doctrine of plural marriage was a sort of superfluity, or non-essential to the salvation or exaltation of mankind. In other words, some . of the Saints have said, and believe, that a man with one wife, sealed to him by the authority of the Priesthood for time and eternity, will receive an exaltation as great and glorious, ifhe is faithful, as he possibly could with more than one. I want here to enter my solemn protest against this idea, for I know it is false.
87. Joseph Smith'srecorded revelations refer to the Old Testament and the polygamous relations of figures such as Abraham and David.
88. Building on the earlier passages related to Sarah (Sarai), the Mormon Law of Sarah affirms that a man's first wife holds the right to consent to, or prohibit, her husband's wishes to marry additional wives according to Section 132 of
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the Mormon sacred text known as the Doctrine qnd Covenants. The first wife,

however, is expected to grant such consent.

89. According to the Doctrine and Covenants, Section 132: 1-6, those rejecting

such divine guidance on plural marriages are to be "damned."

90. The LDS Church openly practiced Polygamy (and more specifically

polygyny) forabout 50 years, until roughly 1890.

91. Brigham Young, who replaced Joseph Smith as head of the LDS Church after

Smith's assassination, reportedly had as many as 55 wives. Jeffrey Odgen

Johnson, Determining and Defining 'Wife' - The Brigham Young

Households, 20 Dialogue: A Journal of Mormon Thought 57, 58 (1987).

92. Around 1890, however, then-church president Wilford Woodruff issued a

manifesto explicitly disavowing the continued practice of polygamy by LDS

members.

)

93. Woodruff issued his manifesto while Utah was seeking to enter the Union as a

state. At that time, anti-Mormon prejudice permeated the United States and

led to many incidents of persecution and physical attacks on Mormons.

94. Congress made clear that the LDS Church would have to abandon the practice

ofpolygamy if Utah wanted admission as a state. See Utah Const. art. III, § I

(explicitly prohibiting polygamous and plural marriages).

95. Many Mormons found the rejection of polygamy to be against the founding

principles of the LDS Church and subsequently left the congregation. These

former Mormons created their own religious groups, including but not limited

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to the FLDS. 96. FLDS members are not part of the Mormon Church and therefore are not
properly called Mormons. 97. The Brown family is associated with the AUB movement and thus is not
Mormon. 98. Although the modem Mormon Church forbids polygamy, many LDS
members still view the practice as having divine origins. They believe the practice was both instituted and later discontinued due to revelatiohs from God. 99. Currently, majoritarian religious groups, including Christians, Jews, and Mormons, are vehemently opposed on moral grounds to the practice of polygamy, including polygyny, polyandry, and polyamory.
POLYGAMY AS A CULTURAL AND POLITICAL PRACTICE 100. In addition to being a religious practice, polygamy must also be considered a
cultural practice under international and domestic laws. 101. Cultural traditions and practices are given protection under international law
and both Canadian and U.S. law. See, e.g., International Covenant on Economic, Social and Cultural Rights, art. 15, adopted Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3,1976) (guaranteeing "the right of everyone ... to take part in cultural life"). 102. International law specifically reaches minority cultural groups and practices. For example, Article 27 of the International Covenant on Civil and Political
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Rights guarantees that insular minorities "not be denied the right, in community with the other members of their group, to enjoy their own culture." International Covenant on Civil and Political Rights, art. 27, adopted Dec. 16, 1966,999 U.N.T.S. 171 (entered into force March 23, 1976). See also Lovelace v. Canada, (l9S1) HRC 36 U.N. GOAR Supp. (no. 40) Annex XVIII; U.N. Doc. A136/40 (l9SI) (Human Rights Committee upholding minority right to culture over the enforcement of the Indian Act). 103. Polygamous associations are based on long standing cultural norms that include the ceremonies, traditions and rites that structure the lives and families of their members. 104. For many polygamists, the practice of plural marriages is integral to both their religion and their culture. 105. Polygamists often structure their families and cultural practices around their belief in plural families and associations. 106. The practice of polygamy is also a political and associational right, as characterized under domestic law and international norms. 107. As noted above, there are many polygamists and polyamorists who participate in plural unions because of deep philosophical beliefs or strong associational ties shared with other families. lOS. For example, the Brown family members, including Robyn Sullivan, who had previously lived in a monogamous marriage, have spoken publicly about how they personally prefer living in a plural family.
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109. Many people believe strongly that monogamous unions are artificially restrictive and run counter to the biological and emotional needs·ofhuman beings.
110. Unlike casual encounters, polygamous and polyamorist families maintain . stable plural unions that are not confined (or defined) by the sexual relationship alone. Polygamists wish to treat each other as spouses while not seeking official recognition of such unions as marriages. THE BROWN FAMILY
III. The Plaintiffs are members of the Apostolic United Brethren Church, a fundamentalist faith.
112. As members of thisfaith, the Plaintiffs believe that only through celestial marriage can they ensure the salvation of their souls following death.
113. Only Plaintiffs Kody'and Merri Brown were civilly wed and sought state recognition of their marriage.
114. Plaintiffs Janelle Brown, Christine Brown, and Robyn Sullivan wished to form a plural family with Kody and Meri Brown, though each had her own home in Utah.
115. While in Utah, all of the homes of the Plaintiffs were connected except for Robyn Sullivan's home, which was about a mile away from the other homes.
116. Plaintiffs Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan were all over eighteen years of age when they chose their plural family with Kody Brown as the single husband and father.
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117. While Janelle Brown, Christine Brown, and Robyn Sullivan did not seek state recognition of a marriage with Kody Brown, they considered themselves committed to him as "sister wives.:~
118. Kody Brown considered himself committed to his Co-Plaintiffs as the head of the plural family, a position imposing on him the duty to raise and father children with each of his spiritual wives.
119. The Brown family lived openly as a plural or polygamous family in Utah for many years before it became the subject of the popular Sister Wives program.
120. Despite years of investigation and total transparency by the Browns, Utah law enforcement officials have never found any evidence that the Browns committed any crime (beyond the allegation of bigamy).
121. The Brown family has never been accused of fraud, child abuse or spousal abuse.
122. Indeed, Lehi Police Lt. Darren Pau.I has publicly stated that there has never been "any major police involvement with the Browns." Dennis Romboy, Bigamy Prosecutions ofPolygamists Rare in Utah, Deseret News, Sept. 28, 2010.
123. Like thousands of polygamists in Utah, the Brown family was known to local public officials but never investigated, let alone prosecuted, under the criminal bigamy statute.
124. Indeed, the Brown family was often asked to confirm ~heir plural family, which state agencies officially took into consideration when denying them
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some state benefits. 125. For example, in September, 2006, Madison, the daughter of Janelle and Kody
Brown, was hospitalized for a ruptured appendix. Because Janelle was between jobs and had no insurance to cover Madison's roughly $35,000 hospital bill, Janelle Brown applied for emergency Medicaid. 126. State Medicaid officials asked Janelle Brown if she was in a polygamous relationship, and she answered truthfully in the affirmative. Officials told her that a polygamous relationship would not make her ineligible for aid, but they had to consider the relationship as part of a review of her income. 127. The state later denied Janelle Brown cove~age because all of Kody Brown's income was applied against her and her children-even though Janelle and Kody Brown were not legally married and that income helped support sixteen people. 128. For years before the start of the Sister Wives program, Christine Brown was a recognized and outspoken advocate for polygamous families. 129. From 2007-2010, Christine Brown has been a member of the Principle Voices Board, a polygamist educational outreach group. She has spoken at many public conferences about the rights and responsIbilities of polygamous families. 130. Christine Brown participated in public interviews, including a national interview in 2007 with HBO. 131. In May, 2008, Christine Brown publicly discussed her polygamous lifestyle in
23

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a meeting attended by Defendant Shurtleff-stating before a couple hundred people that she was tired of living in fear and secrecy. 132. In May, 2008, the television show 48 Hours interviewed Christine Brown about her polygamist lifestyle. 133. In May, 2009, Christine Brown spoke to a class at the University ofUtab about polygamy and her polygamist practices. 134. In September, 2009, the United States Census Bureau hired Christine Brown specifically because of her polygamous family and connections in the polygamist community. 135. In October, 2010, the United States Census Bureau gave Christine Brown an award for her work with fellow polygamists during a meeting of the Safety Net.Committee in Utab. 136. Defendant Shurtleff and his press secretary, Paul Murphy, were always viewed as highly sensitive and civil to polygamous families and their needs. Indeed, Defendant Shurtleff was justifiably credited with incorporating plural families and reducing the tensions between the state and polygamous communities. 137. On at least three occasions in the year before Sister Wives aired, Kody Brown spoke with Defendant Shurtleff and his press secretary about Brown's polygamist lifestyle and his desire to go public. 138. On February 11, 2009, Kody and Christine Brown, along with almost fifty other fundamentalists, attended "Legislative Education Day for
24

Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 25 of 39
Fundamentalist Mormons," held at the State Capitol building in Salt Lake City, Utah. 139. Defendant Shurtleff spoke with Kody Brown at the event. 140. Kody Brown told Defendant Shurtleff that he was considering going public with the details and realities of his plural family. 141. Kody Brown asked Defendant Shurtleff if Shurtleff would pursue him criminally ifhe went public, and Defendant Shurtleff answered that he would not. 142. At this February 2009 meeting, Defendant Shurtleff told Kody Brown that Utah lacked the resources to prosecute polygamists and that Kody Brown would not be prosecuted unless he was committing crimes such as marrying child brides, promoting incestuous relationships, or committing welfare or tax fraud. 143. On September 25, 2009, both Kody Brown and Defendant Shurtleff attended the "Polygamy and The Law Conference," held in Park City, Utah. 144. At the September 2009 conference, Kody Brown again spoke to Defendant Shurtleff and asked if the Browns would be prosecuted for going public with details of their life and plural family. Defendant Shurtleff again said that they would not, absent evidence of marrying child brides or committing welfare fraud. 145. In December 2009, before any contract was signed for the Sister Wives program, and long before its first episode, Kody Brown spoke with Paul
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Murphy, press secretary to Defendant Shurtleff, who again assured him that the policy of the existing administration was not to prosecute peop1e'for simply being polygamists-even if they are public in their plural family arrangements. 146. Before the first episode of Sister Wives aired, Kody Brown notified Mr. Murphy that he and his family had decided to go public as previously discussed. 147. Scott Troxel, spokesman for the Utah Attorney General, has publicly admitted that producers of the Sister Wives program called his office before the start of the show to determine if Utah prosecutors would prosecute the Browns.and shut down the show. Dennis Romboy, Lehi Police Investigating Utah Polygamists Featured in New TV Show, Desert News, Sept. 28,2010. 148. Mr. Murphy also admitted publicly that he was informed of the' show and '. stated that "polygamy is against the law," but expressed uncertainty over whether Utah prosecutors would pursue criminal charges against the family. Jennifer Stagg, Utah County Prosecutors to Meet Tuesday to Discuss Bigamy Case Involving Lehi TV Family, Deseret News, Oct. 18,2010. 149. Mr. Murphy has attended various Safety Net Committee meetings with the Browns, had lunch with Christine and Kody Brown, attended an event to watch the first episode of Sister Wives, and been to the Brown house to watch a sporting event. 150. Christine Brown was actually invited to be part of the so-called Safety Net
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Committee as a representative from a polygamist family, and she gave
interviews to several national press outlets as a polygamist wife.
151. In one interview (posted on YouTube), Christine Brown interviewed Mr.
Murphy.
152. Since 2003, Utah has belonged to the Safety Net Committee, which has
worked with polygamous families in an open and cooperative fashion.
153. The Utah Attorney General's website still posts a description of the Safety Net
Committee that states: The Safety Net Committee began in 2003 and currently holds monthly meetings in Salt Lake Cityand St. George, Utah, Colorado City, Arizona and Creston, British Columbia. Government agencies, non-profits and interested individuals work together to insure that people associated with the practice of polygamy have the same educational opportunities and access to justice, safety and services as the general public. This is done through a coordinated effort to open communication, break down barriers and accomplish these original goals: provide training and develop materials for public awareness; reduce isolation, secrecy, abuses of power and crime; and find ways to provide access and education to members of polygamous communities. More intormation can be found in The Primer.
Description of the Safety Net Committee, Utah Office of the Attorney
General, http://attorneygeneral.utah.gov/polygamy.html(last visited May 2, 2011).
154. The Primer is found on the Utah Attorney General's website and explains that governmental Safety Net Committee members ought not to prosecute
polygamous families, but should instead work with them. See Utah Attorney
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 28 of 39
General's Office et aI., The Primer 5, 9-10 (2009), available at
http://attorneygeneral.utah.gov/cmsdocuments/The_Primer.pdf. According to
the Safety Net Committee's "Mission Statement":
The Safety Net Committee brings together government agencies, non-profit organizations and interested individuals who are working to open up communication, break down barriers and coordinate efforts to give people associated with the practice of polygamy equal access to justice, safety and services.
!d. at 9. 155. The goals of the Safety Net Committee, as stated in The Primer, include:
• Coordinating resciurces and services to underserved Fundamentalist communities
• Arranging for the medical, tinancial, educational, legal, and emotional needs of plural families
• Providing support groups for any needed issue (e.g. family contlict, loss and grieving issues, etc.)
• Holding events and information fairs to provide jobrelated or social service supportive resources to the Fundamentalist communities
Id. at 9-10. 156. Christine Brown is one of the individuals that helped draft The Primer. 157. The Sister Wives program first aired in 2010 on TLC. 158. Almost immediately after the first episode aired, prosecutors in Lehi, Utah
commenced an official investigation ofthe Browns for possible criminal
prosecution. 159. The Utah Attorney General's Office also announced a criminal investigation
of the Browns for violating Utah's criminal bigamy law.
160. Prosecutors have repeatedly stated publicly that the Browns are not only under
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 29 of 39
investigation but are in open violation. of the criminal bigamy law. 161. Prosecutors acknowledged that they had conducted a field investigation and
shared the results with both the Utah County Attorney and the State Attorney General's Office for possible prosecution. 162. Prosecutors have admitted that the criminal investigation of the Browns was commenced in response to the Browns' participation in the Sister Wives program. 163. Deputy Utah County Attorney Julia Thomas is quoted in publications as stating that prosecutors began investigating the Browns when they saw promotional trailers for Sister Wives airing on TV. Vince Horiuchi, Going Public 'Was a Risk Worth Taking, ' Utah Polygamists Say, Salt Lake City Trib., Sept. 29, 2010. 164. Ms. Thomas admitted in the same publications that prosecutors are fully aware of a significant number of polygamist families in Utah but "we typically don't have them on TV admitting to breaking the law." !d. 165. For example, Donna Kelly, Deputy County Attorney for Utah County, publicly stated that "the Browns have definitely made it easier for us by admitting to felonies on national TV." Johnny Dodd, Prosecutors in 'No Rush' to Complete Sister Wives Investigation, People Magazine, Nov. 22, 2010. 166. Even after the Browns' move to Nevada, prosecutors have continued to stress that their investigation of the Brown family is ongoing and that they reserve
29

Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 30 of 39
the right to ,prosecute the family. 167. Utah County Attorney Jeff Buhman has publicly stated that, despite the move
to Nevada, his office may.still opt to prosecute the Browns. Dennis Romboy, Polygamous 'Sister Wives' Family Moves to Nevada; Bigamy Charges Still Not Filed in Utah, Deseret News, Jan. 18,2011. 168. Mr. Buhman has stated that the move to Nevada "doesn't change anything that we are doing." Id. 169: The Brown family moved to Nevada in part due to the continuing threat of arrest and prosecution. 170. Ms. Thomas, however, also expressed concern over the constitutionality of the' criminalization of polygamy for families like the Browns who have no evidence of any collateral crime such as fraud or child abuse. Johnny Dodd, TV's Sister Wives: Four Wives and a Firestorm, People, Oct. 25, 2010 ('''There are a lot of considerations we need to assess before we make a determination, including the ,constitutionality of this statute,' says Julia Thomas, deputy attorney for the Utah County Attorney's Office."). 171. Utah Attorney General spokesman, Scott Troxel, has publicly stated, "[ilt has been our office's position not to pursue cases of bigamy between consenting adults." Jennifer Dobner, 'SJster Wives' Family Investigatedfor Bigamy, MSNBC.com, Sept. 29, 2010. 172. While they would like to return to Utah, the Browns fear that they will be arrested and separated from their children if they do so.
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173. Utah also has the ability to seek extradition of the Browns on the basis ofthe criminal investigation and the conduct of the Browns while still in the state.
174. The Browns also fear that they will continue to be subject to criminal investigation in Utah to the disruption of their family, including their children.
175. The criminal investigation of the Brown family, and the related public statements by prosecutors, has had a pronounced effect on the family, including publicly labeling them as presumptive felons ..
176. Meri Brown was terminated from her long-held job by a company, which stated that, despite Meri Brown's exemplary record with the company, the criminal investigation was viewed as a liability and embarrassment for the company.
177. Meri Brown's employer was previously aware of her plural family, and company officials stated that they were not concerned about her status, as a polygamist. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: DUE PROCESS
178. The Plaintiffs incorporate here by reference paragraphs 1 through 177, supra, as if fully set forth herein.
179. Utah Code Ann. § 76-7-101 violates fundamental liberties that are protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, both on its face and as applied to the Plaintiffs.
180. As stated in Lawrence v. Texas. 539 U.S. 558, 562 (2003):
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 32 of 39
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The .instant case involves liberty of the person both in its spatial and more transcendent dimensions. 181. 'Utah Code Ann. § 76-7-101 criminalizes the private conduct of adults exercising their liberty under the Due Process Clause. 182. It further denies individuals the protected right ·to freely make personal decisions relating to procreation, contraception, family relationships, ,and child reanng. 183. It further denies due process by branding consenting adults as criminals on account of their private choices as to how they arrange their intimate familial relationships. 184. Utah Code Ann. § 76-7-101 also violates the Due Process Clause as void for vagueness because it fails to give adequate guidance to citizens as to the scope of prohibited conduct unde~ the law and fails to define the crime of bigamy with "appropriate definiteness." , 185. Utah Code Ann. § 76-7-101 further allows for selective prosecution because the scope of prohibited cohabitation, and thus the law's applicability to plural unions, is unclear.
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 33 of 39
SECOND CLAIM FOR RELIEF: EQUAL PROTECTION 186. The Plaintiffs incorporate here by reference paragraphs I through 185, supra,
as if fully set forth herein. 187. Utah Code Ann. § 76-7-101 violates fundamental liberties that are protected
by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, both on its face and as applied to the Plaintiffs. 188. Utah Code Ann. § 76-7-101 has been used to single out polygamists for
(
investigation or prosecution while other citizens are allowed to have children by multiple partners in both adulterous and non-adulterous relations. 189. Utah Code Ann. § 76-7-101 is also used to prosecute polygamists who privately commit to multiple partners while allowing other adults to live together and procreate so long as they do not claim lifetime commitments. 190. Utah Code Ann. § 76-7-101 also treats similarly situated persons differently based on religious distinctions. 191. While the Plaintiffs call each other spouses under their private religious beliefs, they would not be prosecuted if they claimed no religious obligation and merely had casual or purely sexual associations. 192. Even as a non-religious distinction, there is no rational basis for the disparate treatment given plural families and other citizens with multiple sexual partners. 193. Monogamists are allowed an infinite number of sexual partners, and consequently have the right to bear children with multiple partners, so long as
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 34 of 39
they do not claim to be committed to such partners in a union or family. 194. The disparate treatment given polygamists is based on historical and religious
animus toward polygamists, who are an insular minority in both the State of Utah and nationally.
THIRD CLAIM FOR RELIEF: FREE EXERCISE 195. The Plaintiffs incorporate here by reference paragraphs 1 through 194, supra,
as if fully set forth herein.
196. Utah Code Ann. § 76-7-101 violates fundamental liberties that are protected by the Free Exercise Clause of the First Amendment to the United States Constitution, both on its face and as applied to the Plaintiffs.
197. Utah Code Ann. § 76-7-101 is not neutral and generally applicable. Indeed, the historical context of its passage demonstrates that the law was intended to target religious practices.
198. . Utah Code Ann. § 76-7-101 is not supported by a compelling state interest, and is not narrowly tailored in pursuit of state interests.
199. Utah Code Ann. § 76-7-101 further violates fundamental liberties by denying polygamists the right to organize their private relations in conformity with their long-established religious beliefs.
200. By branding polygamists as criminals, the law forces those who have engaged in polygamy for spiritual purposes to suppress the open practice of their faith.
201. Utah Code Ann. § 76-7-101 also imposes majoritarian religious beliefs concerning private unions on minority groups like polygamists.
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 35 of 39

FOURTH CLAIM FOR RELIEF: FREE SPEECH

202. The Plaintiffs incorporate here by reference paragraphs 1 through 201, supra,

as if fully set forth herein.

203. Utah Code Ann. § 76-7-101 is the basis for the investigation and threatened

prosecution ofthe Plaintiffs.

204. State and county prosecutors did not begin their investigation of the Plaintiffs

until after the first episode of Sister Wives aired, despite the fact that the

Brown family was known to state officials as a plural family.

205. Indeed, state and county prosecutors have expressly cited the fact that the

Brown family chose to appear on the Sister Wives program as the impetus for

the criminal investigation and possible prosecution of the Plaintiffs.

206. The only difference between the Brown family and thousands of known

.

.

polygamists in Utah is that the Brown family has exercised their free speech

rights by discussing their lives and being transparent to the world about their

plural family.

207. The use of public statements as a determinative factor for investigation or

prosecution violates the First Amendment to the United States Constitution.

208. Likewise, the criminal investigation of the Plaintiffs is calculated, or has the

effect of, chilling the Brown family's speech by linking possible prosecution

to public statements or appearances.

209. Finally, Utah law enforcement officials are using Utah Code Ann. § 76-7-101

as a vehicle to threaten, deter, or chill the speech of any polygamist or plural

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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 36 of 39
family that publicly discusses its faith or religious practices. 210. Utah Code Ann. § 76-7-Wl, as applied in this case and as interpreted by the
Defendants, violates the First Amendment to the United States Constitution. . FIFTH CLAIM FOR RELIEF: FREEDOM OF ASSOCIATION 211. The Plaintiffs incorporate here by reference paragraphs 1 through 210, supra, as if fully set forth herein. 212. Utah Code Ann. § 76-7-101 violates the right of association protected under the First Amendment to the United States Constitution. 213. The Defendants initiated a criminal investigation of the Plaintiffs after the Plaintiffs agreed to establish a national television program that reached out to millions of viewers and began a national dialogue over the treatment of polygamists. 214. The program has received national accolades for challenging stereotypes of plural families and raising questions of unfairness in the treatment of such families. 215. The Brown family has demonstrated that many plural families do not live in secluded compounds and include modem adults who are fully integrated into society. 216. Many such families see the Sister Wives program as a common ground to organize and reach out to the wide society for recognition of their rights. 217. The Sister Wives program has served asa rallying point for other plural families who are interested in going public and joining this debate.
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 37 of 39
218. The acknowledged fact that the Defendants launched their investigation in response to the program threatens to undennine and suppress any similar public associations between the Plaintiffs and both polygamous and nonpolygamous individuals.
219. The threat of prosecution has stymied the efforts of the Brown family to use the program as a rallying point for citizens from both polygamous and nonpolygamous communities.
220. The investigation and threat of prosecution under the criminal bigamy law has denied the Plaintiffs the right to associate with other like-minded citizens who believe that consenting adults should be able to maintain private relations and unions without interference from the state.
221. Utah Code Ann. § 76-7-101, both as written and as applied in this case, violates the First Amendment to the United States Constitution. SIXTH CLAIM FOR RELIEF: ESTABLISHMENT OF RELIGION
222. The Plaintiffs incorporate here by reference paragraphs I through 221, supra, as if fully set forth herein.
223. Utah Code Ann. § 76-7-101 violates fundamental liberties protected by the Establishment Clause of the First Amendment to the United States Constitution, both on its face and as applied to the Plaintiffs.
224. The Plaintiffs represent an insular minority of both religious and cultural polygamists who are viewed as immoral under majoritarian Judeo-Christian beliefs.
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 38 of 39
225. The criminalization of the private associations of polygamous families constitutes an effort to force compliance with majoritarian moral beliefs.
226. The isolation of polygamous families-as opposed to casual plural relationsreflects hostility toward their belief structure and the imposition of a majoritarian moral code.
227. The Judeo-Christian basis for the criminalization of polygamy has been expressed in prior cases as well as public commentary.
228. The Judeo-Christian insistence on monogamy contradicts the deeply held moral beliefs of not just FLDS members, but many Muslim and other minority religious groups.
229. Utah Code Ann. § 76-7-101, both as written and as applied in this case, violates the First Amendment to the United States Constitution. SEVENTH CLAIM FOR RELIEF: 42 V.S.c. § 1983
230. The Plaintiffs incorporate here by reference paragraphs 1 through 229, supra, as if fully set forth herein.
231. Insofar as they are enforcing the terms of Utah Code Ann. § 76·7-101, the Defendants, acting under color of state law, are depriving and will continue to deprive the Plaintiffs of numerous rights secured by the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
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Case 2:11-cv-00652-CW Document 1 Filed 07/13/11 Page 39 of 39
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court:
I. Enter an order declaring that Utah Code Ann. § 76-7"101 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment, and 42 U.S.C. § 1983.
2. Order a preliminary and permanent injunction enjoining enforcement or application of Utah Code Ann. § 76-7-101 against the Brown family on the basis of their consensual plural family association.
. 3. Award the Plaintiffs reasonable attorneys' fees and costs incurred in maintaining this action pursuant to 42 U.S.C. § 1988.
4. Award such other r.elief as it may deem just and proper.
Respectfully submitted, Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 Lead Counsel for Plaintiffs
~aUa-=
Adam Alba (Bar #13128) 2167 N. Main St. Centerville, UT 84014 Local Counsel for Plaintiffs
39

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN,

MEMORANDUM DECISION AND ORDER

Plaintiffs, v. GARY R. HERBERT, MARK SHURTLEFF, JEFFREY R. BUHMAN,
Defendants.

Case No. 2:11-CV-0652-CW Judge Clark Waddoups

INTRODUCTION1 On February 3, 2012, the court entered a m emorandum decision and order granting in part and denying in part Defendants’ m otion to dism iss on the grounds that Plai ntiffs’ claim s lack standing. (Dkt. No. 31). The court held that wh ile Plaintiffs had not a lleged facts sufficient to allow a suit to go forward against Defendants Ga ry Herbert, the Governor of Utah, and Mark Shurtleff, th e Attorney General of Utah, the a lleged facts were sufficien t to a llow Plaintif fs standing to maintain their claims against Defendant Jeffrey Buhman, the Utah County Attorney. Now before the court is Mr. Buhm an’s m otion to dism iss (Dkt. No. 46) on the ground that Plaintiffs’ claim s are now m oot as a result of his office’s recent ad option of a policy that residents of Utah County will not b e prosecuted for violating Utah’s anti-big amy statute except

1 For a m ore thorough review of the factua l background of this su it, see the court’s memorandum decision and order dated February 3, 2012. (Dkt. No. 31).

in cases where such a v iolation is committed in connection with some other violation of the law. For the reasons stated below, the court DENIES Mr. Buhman’s motion to dismiss.
DISCUSSION I. ARTICLE III MOOTNESS
“The constitutional mootness doctrine is grounded in Article III's requirement that federal courts only decide actual, ongoi ng cases or controversies. . . . The central question in determining whether a case has becom e moot is whether the issues presented are no longer live or the pa rties lack a leg ally cognizable interest in the outco me.” Phelps v. Hamilto n, 122 F.3d 1309, 1326 (10th Cir. 1997) (internal quotation m arks and citation om itted). To sustain jurisdiction over a federal case, “it is not enough th at a dispute was very m uch alive when suit was filed . . . . The parties m ust continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Continen tal Ba nk Corp ., 494 U.S. 472 (1990) (internal quotation m arks and citation omitted). T hus, “[ w]hen inte rvening acts des troy a pa rty’s lega lly cog nizable in terest in the lawsuit, the federal courts ar e deprived of jurisdiction.” Mink v. Su thers, 482 F.3d 1244, 1256 (10th Cir. 2007) (internal quotation marks and citation omitted).
“Merely stopping the com plained of conduc t ordinarily is not enough, however, to establish mootness.” Id. See also Friends of the Earth, Inc. v. Laidlaw Environmental Se rvices (TOC), Inc. , 528 U.S. 167, 189 (2000) (“[A] defendant 's voluntary cessation of a challenged practice does not deprive a federal c ourt of its power to determine the legality of the practice. If it did, the courts would be com pelled to leave th e defendant free to return to his old ways.”) (internal quotation marks and citation omitted). To show that a particular suit is moot as a result of a voluntary cessation of the challenged prac tice, a party asserting mootness has the “heavy
2

burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again . . . .” Friends of the Earth, Inc., 528 U.S. at 189.
Although the burden of persuading the court that the challeng ed activity is not likely to be repeated is a heavy one, it is not insurm ountable. “[I]n many circum stances it is obvious previously threatened conduct cannot reasonably be expected to recur.” Mink, 482 F.3d at 1256 (citation omitted). On at le ast two occasion s, the Tenth C ircuit has found that a catego rical announcement from a governm ent attorney that no prosecutions would be brought under a particular statute was sufficient to moot a challe nge to the constitutionality of the statute. See Mink, 482 F.2d at 1256-57 (opinion lett er from prosecutor stating that the challenged statute could not be constitutionally appl ied to the conduct attr ibuted to the plaintiff and that no charges would be filed against Pl aintiff i n t he fut ure was suffi cient to m oot challenge to statute’s constitutionality); Winsness v. Yocom , 433 F.3d 727, 736 (challe nge to constituti onality of flag burning statute m oot because pro secutor had “categorically announc[ed] that h is office [would] bring no prosecutions under the statute” and because recent Supreme Court precedent had made it clear that any future prosecutions under the statute would be futile).
In Mink, the Tenth Circuit identified three factors which it relied on to determine that the government attorney’s assuranc e of non-prosecution establishe d m ootness: (1) the governm ent quickly repudiated the actions in itially taken against the plainti ff; (2) the governm ent’s promise of non-prosecution was m ade in sw orn affidavits; and (3) the gove rnment’s decision was based on controlling Supreme Court precedent, making future prosecutions unlikely. 482 F.3d at 1256. The court f inds these f actors helpful and will rely on them to determ ine whether Mr . Buhman’s adoption of a policy not to prosecu te residents of Utah County, incl uding Plaintiffs, for violation
3

of Utah’s anti-bigam y statute unless they ha ve engaged in additional crim inal conduct is sufficient to moot Plaintiffs’ claims in this case.
The court finds that the first factor weighs against a finding of mootness in this case. The threat of prosecution that Plaintiffs com plain of was alleged to have ar isen in the fall of 2010 when prosecutors in the Utah County Attorney’s office told the press that they were investigating Plaintiffs and that Pla intiffs had “m ade it ea sier for [them] by adm itting to f elonies on national TV.” See Civil Righ ts Com plaint 29 (D kt. No. 1). The court dete rmined, in an order dated February 3, 2012, that the alleged conduct of m embers of the Utah County Attorney’s office was sufficient to give Plaintiffs standing to bri ng suit against Mr. Buhm an to seek a declarato ry judgment that the Utah anti-bigamy statute is unconstitutional. (Dkt. No. 31). Mr. Buhman then filed a motion to dismiss the case for m ootness on May 31, 2012, accompanied by a declaration stating that his office had adopted the non-prosecution policy at issu e in this m atter. (Dkt. No. 47). The declaration was signed on May 22, 2012, a nd there is no evidence that the for mal nonprosecution policy was adopted before that date. See Second Decl. of Jeffrey R. Buhm an Ex. 1 (Dkt. No. 47). There is no evidence that notice of the change in policy was given to the public generally or distributed within the county attorney’s office. Th e only apparent public notice was the filing of the m otion with the attached decl aration. The position ta ken in the motion was reported by various local news media sources.
Mr. Buhm an’s adoption of a form al non- prosecution policy happened over eighteen months after the alleged conduct giving rise to th e threat of prosecution of Plaintif fs occurred. This cannot be considered a “quick repudiation” of the ac tions initially taken against Plaintiffs. Furthermore, Mr. Buhm an’s adoption of the new policy happened several m onths after his motion to dismiss Plaintiffs’ claims on the grounds of standing had been denied by the court and,
4

also, after the claim s against th e state defenda nts had been dism issed because th e court found that under the policy of the state attorney gene ral’s office there was no threat of prosecution. The tim ing of Mr. Buhm an’s adopt ion of the po licy at issue suggests that the policy was not motivated by a belief that prosecution of Plaintiffs for violating Utah’s anti-bigamy statute would be improper, but instead was motivated by a desire to prevent this court from reaching the merits of Plaintiffs’ claim s. See Harrell v. The Florida Bar , 608 F.3d 1241, 1266 (11th Cir. 2010) (“[A] de fendant's cessation before receiving noti ce of a legal challenge weighs in favor of mootness, . . . while ces sation that o ccurs late in the gam e will m ake a court m ore skeptical of voluntary changes that have been made.”) (inter nal quotation m arks and c itation omitted). Mr. Buhman’s strategic attempt to use the m ootness doctrine to evade r eview in this case draws into question the sincerity of his contention that prosecu tion of P laintiffs for vi olating this statute is unlikely to recur. See cf. Harrell, 608 F.3d at 1266 (“[W]here the circumstances surrounding the cessation suggest that the defenda nt is attempting to m anipulate th e court’s ju risdiction to insulate a favorable decision from review, courts will not deem a controversy moot.”); DeJohn v. Temple Univ., 537 F.3d 301, 309-10 (3d Cir. 2008) (univers ity policy change did not m oot case where evidence suggested policy change was done for the strategic purpose of evading review).
The second factor weighs slightly, but not decisively, in favor of a finding of mootness in this case. Mr. Buhman’s motion to dismiss is supported by a formal declaration, made under the penalty of perjury, that the Utah County Attorn ey’s office had adopted a for mal policy of nonprosecution of Utah County reside nts that m ay be violating Utah ’s anti-bigamy statute without committing additional specif ied crim es. The decl aration also ex pressly indicates tha t the criminal case opened ag ainst Plaintiffs for their alleged violation of the anti-bigam y statute has been closed and that no charges would be filed against them for bigam y in the absence of new
5

evidence that Plain tiffs were comm itting any of the crim es specified in the policy. See Second Decl. of Jeffrey R. Buhm an Ex. 1, 4, ¶ 12 (Dkt. No. 47). Because Mr. Buhman’s declaration is made under the penalty of perjury, the court gives it more weight than it would a statement made in other circumstances. The failure to give public notice of the change in policy, however, adds to the concern that the action was taken primarily for purposes of this litigation.
It should be noted also that in his declar ation and in the adopted policy itself, Mr. Buhman reserves th e right to prose cute individuals for violating Utah’s anti-bigam y statute “(1) [w]hen a victim is induced to marry th rough their partner’s fraud, misrepresentations or omissions; or (2) [w]hen a person purports to m arry or cohabits with anot her person in violation [of the Utah anti-bigamy statute] an d is also engaged in som e type of abuse, violence or fraud.” Second Decl. of Jeffrey R. Buhm an Ex. 1, 3, ¶ 9 (Dkt. No. 47). Furthermore, Mr. Buhm an has conceded that the policy at issu e “cannot bind the future actions or policies of successor Utah County attorneys.” Mem. Supp. M ot. to Dism iss 5 (Dkt. No. 47). Even though Mr. Buhm an’s adoption of a non-prosecution policy is supported by a form al declaration m ade under the penalty of perjury, the contents of the policy and the declarati on leave open the po ssibility that Plaintiffs may be subject to prosecution for their continued vi olation of Utah’s anti-bigamy statute in the future. Moreover, the policy does not reject the ability of Utah County to prosecute under the anti-bigam y statute. It reflects, at m ost, an exercise of prosecutorial discretion by the current county attorney not to prosecute unles s another crim e is also included. The county attorney do es not repu diate that punishm ent m ay be enhanced if a defendant were convicted under the anti-bigam y statute and another offense. See Utah v. Holm , 137 P.3d 726, 774 n.29 (Durham, C.J., concurring in part and dissenting in part).
6

Like th e f irst f actor, th e th ird f actor iden tified by the T enth Circuit in Mink weighs against a finding of m ootness in this case. In both Mink and Winsness, the Tenth Circuit held that a prosecutor’s promise of non-prosecution was sufficient to meet the burden of showing that future prosecution was unlikely to occur becaus e the promise of non-prosecution was based on a determination that controlling Suprem e Cour t preceden t would m ake prosecution under the challenged statute futile. In Winsness, for example, the prosecutors submitted an affidavit to the court indicating that th e enforceability of the Utah flag abuse st atute was doubtful in light of the Supreme Court’s decision in Texas v. Johnson , 491 U.S. 397, 420 (1989). 433 F.3d at 731. Similarly, in Mink, the prosecutor disclaimed an intent to p rosecute the plaintiff after reviewing controlling Suprem e Court prec edent and concluding that pr osecution would have been improper. 482 F.3d at 1254-55.
Mr. Buhm an has not indicated what the reasoning is be hind the newly adopted nonprosecution policy at issue in this case. His declar ation merely states that, to his knowledge, this was the first occasion that the Utah County Atto rney’s office had to d ecide wheth er it would bring charges against someone in Plaintiffs’ position for violating Utah’s anti-bigamy statute and that, upon contem plation of the ci rcumstances, a decision was made not to prosecute Plaintiffs and to im plement a non-prosecutio n policy. The declaration doe s indicate that the policy is intended to “prevent the future prosecution in Ut ah County of biga mous marriages entered into for religious reasons,” see Second Decl. of Jeffre y R. Buhman Ex.1, 3, ¶ 10 (Dkt. No. 47), but it does not explain why the office determ ined that su ch prosecutions should be avoided. Neither Mr. Buhm an nor his counsel has cited any Suprem e Court caselaw to s how the co urt that th e policy was necessa ry to avoid bring ing an uncons titutional suit again st Plai ntiffs, and it is not clear what caselaw they would cite to show that such a prosecution would be futile.
7

Furthermore, Mr. Buhm an’s declaration clearl y indicates that he b elieves the s tatute could be properly enforced, if the prosecutor exercises his di scretion to do so, against an individual who violates Utah’s anti-bigamy statute when the individua l is also comm itting some other crime specified in the policy. See Second Decl. of Jeffrey R. Buhm an Ex.1, 3, ¶ 9 (Dkt. No. 47). He has also m ade no indication that he is ab andoning his defense of the constitutionality of the challenged statute. Mr. Buhman’s continued defense of the statute makes it difficult to conclude that there is no reasonable expectation that Plaintiffs would be prosecuted under the statute in the future. See DeJohn, 537 F.3d at 311 (“”[H]ere Tem ple’s timing of the policy change, as well as its con tinued defense of its form er policy, do not m eet the form idable burden of dem onstrating that there is no reason able expectation that it would reim plement its former policy.”) (internal quotation marks and citation omitted).
While it m ay be th e case that Mr. Buhman believes that prosecution of Plaintiffs would be inappropriate in th is circumstance, there is n o reason to believ e that such a dete rmination is anything beyond an exercise of prosecutorial discretion that could be easily reversed in the future by a successor Utah County Attorn ey, or by Mr. Buhm an himself, if he should chan ge his mind. As a result, Mr. Buhm an’s adoption of the non- prosecution policy at issue in this matter is not sufficient to estab lish that future p rosecution o f Plaintiffs is unlikely to recu r. B ecause Mr. Buhman has f ailed to meet his bu rden in this respect, the current case continues to be live for purposes of Article III jurisdiction.
II. PRUDENTIAL MOOTNESS Even when a case is not m oot in the “strict Article III sense,” the controversy may be “so
attenuated that considerations of prudence and com ity for coor dinate branches of governm ent counsel the court to stay its hand, and to w ithhold relief it has the power to grant.” Southern
8

Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997). Prudential m ootness has

particular applicability where the relief being sought is an injunction against the government. Id.

While the central inquiry is e ssentially the sam e under the Artic le III and prudential m ootness

doctrines—“have circumstances ch anged since the beginning of th e litigation that f orestall any

occasion for m eaningful relief,” Southern Utah Wild erness Alliance , 110 F.3d at 727 (citation

omitted)—a remedial promise may be suf ficient to bring a c ase to an en d as a m atter of equity,

even if it may not be enough to kill a cas e co nstitutionally. Winzler v. Toyota Motor Sa les

U.S.A., Inc., 681 F.3d 1208, 1211 (10th Cir. 2012).

A rem edial comm itment m ade by one of the “coordinate branches of th e United States

government” bears special gravity when determ ining whether to find a case prudentially m oot.

Id. at 1211. This is not only because governm ent prom ises are generally trustworthy, but

because “af fording a judicial rem edy on top of one already prom ised by a coordinate branch

risks needless inter-branch disputes over the execution of the rem edial process and the

duplicative expenditure of finite public resources.” Id. Refusing to find a case prudentially moot

when a government entity makes a remedial commitment also discourages the other branches of

government from seeking to resolve a dispute that is currently pending in court. Id.

In

Winzler, the Tenth Circuit held that a produc ts liability suit brought against Toyota

was prudentially m oot when T oyota voluntarily announced a nationw ide recall to repair the

problem alleged in th e suit. According to th e court, by initiating th e recall, Toyota invoked a federally regulated2 remedial scheme that provided the plai ntiff with all the relief sought in the

suit. The court held th at because the rem edy invoked by Toyota was enforced by a coordinate

2 The recall process w as overseen by the Na tional High way Transp ortation Saf ety Administration, “an agency of the Departm ent of Transportation that can i ssue stiff fines if the company fails to carry out the recall to its satisfaction.” Winzler, 681 F.3d at 1209.
9

branch of the governm ent, there was “not enough valu e left for the courts to add in this case to warrant carrying on with the business of deciding its m erits.” Id. A llowing the case to go forward on the merits would duplicate the efforts of the National Highway Transportation Safety Administration (“NHTSA”), waste finite public resources, and m ight “invite inter-branch confusion and turf battles over the details of carrying out an agreed objective.” Id.
The immediate cas e can easily be d istinguished from the circum stances of the Winzler case. In Winzler, the remedial scheme Toyota invoked had been established long before the suit had ever been filed and gave the plaintiff a ll the relief she sought. The NHTSA recall sch eme was not established to give specific relief to the s pecific plaintiff in the Winzler case, and it was not established with the specific purpose of allowing Toyota to ev ade court review. Instead, the recall scheme was specifically desig ned to provide the kind of relief that the plaintiff in Winzler sought, and when it was invoked, there was no additional relief that the court could grant.
In contrast, Mr. Buhm an’s non-prosecution po licy was im plemented more than eighteen months after the alleged conduct th at gave rise to this suit o ccurred. As discussed above, the timing of the policy implem entation, lack of any public notice, a nd lack of reasoning given for adopting the policy suggest that the policy was im plemented, not to provide a rem edy t o Plaintiffs in this cas e, but instead to evade review of Plaintiffs’ claims on the merits. Moreover, the policy implem ented by Mr. Buhm an does not provi de Plaintiffs with all th e relief they a re seeking. It has already been established that the policy at issue is insufficient to alleviate the risk that Plaintiffs will be prosecuted or threatened with prosecution for their violation of Utah’s antibigamy statute in the future. Plain tiffs are seeking a declaration from the court that the statu te is unconstitutional and a perm anent injunction agains t enforcing the statu te agains t th em “on the basis of their consensual plural fam ily associ ation.” Civil R ights Com plaint 39 (Dkt. No. 1).
10

Plaintiffs are also seeking relief under 42 U.S.C. § 1983 for injury they claim to have suffered because of threats of prosecution. The policy of Mr. Buhman’s office falls far short of providing Plaintiffs with all the relief they seek.
Because this case can be easily distin guished from the circumstances in the Winzler case, and becaus e the con cerns pres ented to th e cou rt in Winzler are no t suf ficiently pr esent in th is case to warrant a finding of prudential m ootness, the cou rt will no t rely on the prudential mootness doctrine to allow Mr. Buhman to evade review of the merits of Plaintiffs’ claims.
CONCLUSION For the reasons stated above, the court he reby DENIES Defendant Buhman’s motion to dismiss on t he grounds of mootness. (Dkt. No. 46). On Jul y 2, 2012, t he court issued a stay on further proceedings on Plaintiffs’ motion for summary judgment and Defendant’s cross-m otion for summary judgm ent. (Dkt. No. 64). The stay is now LIFTED. Plai ntiffs may, in their discretion, f ile a reply m emorandum to Defend ant’s m emorandum opposing Plaintiffs’ m otion for summary judgment on or before August 31, 2012. Plaintiffs should also file a m emorandum opposing Defendant’s cross-m otion for summa ry judgment on or before Septem ber 14, 2012. Defendant m ay then, at his discretion, file a reply m emorandum on or before Septem ber 28, 2012. DATED this 17th day of August, 2012.
BY THE COURT:

______________________________

Clark

Waddoups

United

States District Court Judge

11

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN,

MEMORANDUM DECISION AND JUDGMENT

Plaintiffs, v. GARY R. HERBERT, MARK SHURTLEFF, JEFFREY R. BUHMAN,
Defendants.

Case No. 2:11-CV-0652-CW Judge Clark Waddoups

MEMORANDUM DECISION The court granted in part Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49), denying Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 55), in its Memorandum Decision and Order dated December 13, 2013 (Dkt. No. 78). That Order, however, left unresolved the matter of Plaintiffs’ claim under 42 U.S.C. § 1983, and in a status conference held on January 17, 2014, the court requested supplemental briefing on the issue. Defendant contends that his failure to include an affirmative defense or any answer to Plaintiffs’ Section 1983 claim in his Answer (Dkt. No. 33) or in any of his briefs in the summary judgment process does not constitute a waiver of prosecutorial immunity or qualified immunity as defenses because Plaintiffs did not properly seek an award of money damages against him. (Def.’s Resp. to Pls.’ Resp. 5 [Dkt. No. 89].) This line of argument, though creative, is not persuasive. Plaintiffs unambiguously asserted a number of specific injuries in their Complaint

that entitle them to monetary damages. (See, e.g., Compl. ¶¶ 172-77 [Dkt. No. 1].) Moreover, in connection with the recitation of these injuries, Plaintiffs explicitly seek to “recover all of their attorneys’ fees, costs, and expenses incurred in this action pursuant to 42 U.S.C. § 1988, and any other relief that this Court may order.” (Id. at ¶ 29 (emphasis added).) In fact, in their Prayer for Relief at the conclusion of their Complaint, they include their claim under Section 1983 with the rest of their Constitutional claims and follow their request pursuant to Section 1988 with a specific request that the court “award such other relief as it may deem just and proper.” (Id. at 39, ¶ 4.) As the Tenth Circuit noted in Frazier v. Simmons, the plaintiff’s request for monetary damages and “such other relief as the court deems just and equitable” was sufficient to put the defendant in that case on notice that he also sought injunctive relief, which protected his claim from an Eleventh Amendment immunity defense. 254 F.3d 1247, 1254-55 (10th Cir. 2001) (concluding that through this language and the “nature of the harms” he alleged, “Mr. Frazier sufficiently indicated in his complaint, and the district court repeated in its pretrial order, that he sought prospective equitable relief against Mr. Simmons,” though also noting that such a “boilerplate recitation . . . included in one’s prayer for relief is far from an exemplary request for” the desired relief). The same logic requires the court to find that Defendant was adequately on notice that Plaintiffs were seeking money damages in addition to the injunctive and constitutional relief sought.
Defendant, therefore, has waived his various immunity defenses by not raising them in his Answer, as was his duty under Rule 8(c)(1) of the Federal Rules of Civil Procedure, or opposing or mentioning Plaintiffs’ assertion of their Section 1983 claim in their Complaint, their Motion for Summary Judgment, and their Opposition to Defendant’s Cross-Motion. The court must view this as a conscious decision on the part of Defendant, a decision that has
2

consequences under the orderly administration of justice in the federal courts. “Failure to plead an affirmative defense results in a waiver of that defense.” Bentley v. Cleveland Cnty. Bd of Cnty. Comm’rs, 41 F.3d 600, 604 (10th Cir. 1994). This is so well settled a principle under the Federal Rules of Civil Procedure that “the very possibility of waiver makes it important (and certainly prudent) to plead all appropriate affirmative defenses,” specifically to avoid waiver. H.S. Field Servs. v. CEP Mid-Continent, LLC, No. 12-cv-531-JED-PJC, 2013 U.S. Dist. LEXIS 137341, at *3-*4 (N.D. Okla. Sept. 25, 2013).
The court must therefore agree with Plaintiffs that Defendant’s approach of neither raising the defenses of qualified immunity or prosecutorial immunity as affirmative defenses, or even mentioning them in the briefing responding to Plaintiffs’ Section 1983 claim constitutes a waiver of these defenses. If not, “there would be little reason for parties to completely answer a complaint or offer a full defense to summary judgment. Defendant has not claimed the right to retroactively claim such defenses, but such a claim would allow parties to adopt a nondefense position as to a claim and later ask for an exemption from the rules when an obvious waiver is raised. There is no provision in the federal rules for such a judicial equivalent of a Mulligan for the hapless or absent litigant.” (Pl.’s Resp. to Court Order 14 [Dkt. No. 85].)
The court therefore finds in favor of Plaintiffs on their seventh and final count in the Complaint under 42 U.S.C. § 1983 and GRANTS summary judgment in their favor on this last remaining count. Plaintiffs, however, have chosen to drop their claim for monetary damages aside from attorney’s fees: “[Plaintiffs] believe strongly that the focus of the case should be on the Court’s historic ruling and not their insular losses associated with the criminal investigation and public comments of the Defendant. To that end, they will not ask for repayment of their moving costs, loss of contracts, or other expenses detailed in the prior filings,” although
3

“reserve[ing] their right to seek attorneys’ fees in this case.” (Id. at 2 & n.1.) In severing the cohabitation prong1 of Utah’s Anti-Bigamy Statute, Utah Code Ann. § 76-7-101(1) in its
Memorandum Decision and Order Granting in Part Plaintiffs’ Motion for Summary Judgment
dated December 13, 2013 (Dkt. No. 78), the court has therefore provided the relief sought while
leaving the Statute in force as narrowly construed in the absence of the cohabitation prong. That
Order is fully incorporated herein for purposes of the below final Judgment in this case.
JUDGMENT
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Utah Code Ann. § 76-
7-101 (2013) is facially unconstitutional in that the phrase “or cohabits with another person” is a
violation of the Free Exercise Clause of the First Amendment to the United States Constitution
and is without a rational basis under the Due Process Clause of the Fourteenth Amendment; to
preserve the integrity of the Statute, as enacted by the Utah State Legislature, the Court hereby
severs the phrase “or cohabits with another person” from Utah Code § 76-7-101(1); it is further
ORDERED, ADJUDGED, AND DECREED that the statute is readily susceptible to and
the Court hereby adopts a narrowing construction of the terms “marry” and “purports to marry”
1 The court found that the phrase “or cohabits with another person” in the Statute violates the Free Exercise Clause of the First Amendment to the United States Constitution, Brown v. Buhman, 947 F.Supp.2d 1170, 1203-21 (D. Utah 2013), and is also without a rational basis under the Due Process Clause of the Fourteenth Amendment, id. at 1222-25. The court, however, acknowledged that “it is not the role of federal courts in the constitutional framework of checks and balances to ‘rewrite a state law to conform it to constitutional requirements.’” Id. at 1226 (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988)). Thus, the court adopted a “narrowing construction,” id. at 1231-32, of the accompanying phrase “purports to marry another person” as required by the canon of constitutional avoidance, “under which ‘[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” Id. at 1226 (quoting Gonzales v. Carhart, 550 U.S. 124, 153 (2007)). This obliged the court “to save the Statute from being invalidated in its entirety,” if the Statute were “readily susceptible” to such a narrowing construction. Id. at 1233. As a result, “under this narrowing construction, the Statute remains in force, submitting anyone residing in Utah, knowing he has a wife or she has a husband or knowing the other person has a husband or wife, to prosecution for the crime of bigamy for entering into any further purportedly legal union.” Id. at 1233-34.
4

to save the Statute from being invalidated in its entirety, and that portion of the Statute is upheld as constitutional; it is further
ORDERED, ADJUDGED, AND DECREED that the Plaintiffs, as prevailing parties in an action for enforcement of civil rights under 42 U.S.C. § 1983, are entitled to an award of attorney’s fees, costs, and expenses incurred in this action under 42 U.S.C. § 1988 upon further and proper application.
SO ORDERED this 27th day of August, 2014. BY THE COURT: ______________________________ Clark Waddoups United States District Court Judge
5

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN,

MEMORANDUM DECISION AND ORDER

Plaintiffs, v. GARY R. HERBERT, MARK SHURTLEFF, JEFFREY R. BUHMAN,
Defendants.

Case No. 2:11-CV-0652-CW Judge Clark Waddoups

INTRODUCTION Plaintiffs have filed this case to challenge Utah Code Ann. § 76-7-101 (the “Anti-Bigamy Statute” or the “Statute”) as unconstitutional and enjoining its enforcement. Before the court is Defendants’ motion to dismiss Plaintiffs’ complaint for lack of standing. Defendants’ motion is GRANTED in part and DENIED in part. For the reasons stated herein, the court finds that Plaintiffs do not have standing to bring this action against Defendants Gary R. Herbert, in his official capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as Attorney General of Utah. They are DISMISSED. The court finds that Plaintiffs have standing to continue against Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County.

1

FACTUAL BACKGROUND Plaintiffs Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan are self-described polygamists that publicly lived in Utah as a plural family. During this time, members of the family have participated in a number of outreach efforts to speak and educate others about their lifestyle. For example, Christine Brown was interviewed on national television by HBO in 2007, participated in the television show 48 Hours in 2008, and spoke to a University of Utah class about polygamy and her polygamist practices in 2009. Through these and other activities, Plaintiffs became aware that the State of Utah has a policy of not prosecuting individuals for violations of the Anti-Bigamy Statute, except in cases where other crimes accompany the bigamy charge. Relying upon certain assurances of state officials leading up to 2010, the Browns became involved with the television series Sister Wives on TLC, which is a reality show based on their polygamist family. After the show aired, the Lehi City Police Department began receiving a number of calls inquiring what the department intended to do. The day after the first episode aired, the Lehi City Police Department publicly announced that it was investigating Plaintiffs for bigamy. Similarly, the Utah County Attorney’s office stated that the Browns were placed under investigation after its attorneys saw the Sister Wives promotional trailer and commented that the Browns have made it easier for prosecutors because they admitted to felonies on national television. Although prosecutors have left the possibility of other charges open, Plaintiffs’ allegations support an inference that these investigations have centered on their bigamist activities. In contrast to the State, Utah County does not have a policy against prosecuting bigamists solely for bigamy. Indeed, since making the initial announcement and remarks, Utah County has remained silent on its intentions to prosecute or not prosecute the Browns under the Statute. Based on these
2

statements, Plaintiffs fled from Utah to Nevada for fear that they would be criminally prosecuted
for practicing bigamy. Despite not living and exercising their speech in Utah, they continue to
visit relatives and associates in Utah. Once the threat of prosecution is lifted, however, they
expect to relocate to the State of Utah.
STANDARD FOR A RULE 12(B)(1) MOTION TO DISMISS
Before the court is Defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of
standing. The Supreme Court has directed that “[f]or purposes of ruling on a motion to dismiss
for want of standing . . . courts must accept as true all material allegations of the complaint, and
must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490,
501 (U.S. 1975). Indeed, this pleading standard “does not require detailed factual allegations,
but . . . [a] pleading that offers labels and conclusions . . . will not do. Nor does a complaint
suffice if it tenders naked assertions devoid of further factual enhancement . . . .” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).
The Tenth Circuit has further explained:
Generally, Rule 12(b) (1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint’s allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Holt v. United States, 46 F.3d 1000, 1002-04 (10th Cir. 1995) (citations omitted).
Accordingly, insofar as Defendants have not challenged Plaintiffs’ factual assertions, the
court will accept them as true and look to whether such facts, as alleged, are sufficient to
establish Plaintiffs’ standing as a matter of law. Where Defendants have challenged Plaintiffs’
3

factual allegations, the court will rely on the evidence to make a factual finding and then apply those facts to the law.1
DISCUSSION
The Tenth Circuit has stated that “[e]ach plaintiff must have standing to seek each form
of relief in each claim.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).
Furthermore, the court has “an independent obligation to assure that standing exists, regardless
of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488,
499 (2009) (citations omitted); see also, Citizens Concerned for Separation of Church & State v.
City & Cnty. of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980) (“A federal court must in every
case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction.”).
In order to demonstrate the “irreducible constitutional minimum of standing,” the
Supreme Court requires that a plaintiff meet the following three elements:
First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (U.S. 1992) (citations omitted).

1

The court invited the parties to present evidence, either orally or in written form, to support the positions

they have taken on standing. All parties elected to submit the motions on the allegations in the complaint and the

documents and declarations submitted in support of the written memoranda.

4

I. PLAINTIFFS’ STANDING TO CHALLENGE UTAH’S ANTI-BIGAMY STATUTE DUE TO A CREDIBLE THREAT OF PROSECUTION2
A. The Injury-in-fact Prong of Standing
Precisely how injury-in-fact must be pled depends largely upon the cause of action
asserted and the relief requested. For example, “standing for retrospective relief may be based
on past injuries [but] claims for prospective relief require continuing injury.” PETA v.
Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002). Because Plaintiffs pray for a declaratory
judgment that Utah Code Ann. § 76-7-101 is unconstitutional, an injunction preventing the
statute’s enforcement, and the reasonable attorneys’ fees and costs required to maintain this
action, the relief requested would be considered generally prospective.
The Supreme Court has instructed:
A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. But one does not have to await the consummation of threatened injury to obtain preventive relief . . . . When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he would not be required to await and undergo a criminal prosecution as the sole means of seeking relief.
Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979) (citations omitted). Even under this loosened standard, it is not sufficient for Plaintiffs to simply argue that
they felt threatened. Indeed, the facts must demonstrate an “objectively justified fear of real
consequences.” D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004). The difficulty with
adjudicating cases such as this is that “clarity prevails only at the poles.” Bronson v. Swensen,
500 F.3d 1099, 1108 (10th Cir. 2007) (citations omitted). In recognizing this difficulty, the
Tenth Circuit has further explained:

2

This analysis relates to Plaintiffs’ First Claim for Relief: Due Process and Second Claim for Relief: Equal

Protection.

5

At the “credible threat” pole lies pre-enforcement claims brought after the entity responsible for enforcing the challenged statute actually threatens a particular plaintiff with arrest or even prosecution. These claims can be juxtaposed with those situated at the “no credible threat” end of the spectrum. There the affirmative assurances of non-prosecution from a governmental actor responsible for enforcing the challenged statute prevents a “threat” of prosecution from maturing into a “credible” one . . . .
Bronson v. Swensen, 500 F.3d 1099, 1108 (10th Cir. 2007) (citations omitted).3
In this case, Plaintiffs contend that they have been, and continue to be, threatened by the
prosecution of Utah’s Anti Bigamy Statute. (Compl., ¶¶ 32-36, 166) (Dkt. No. 1). There is no
allegation, however, that Plaintiffs have been directly threatened with either arrest or
prosecution. Nevertheless, Defendants have never provided sworn assurances to Plaintiffs that
they will not be prosecuted. 4 As such, this case falls in a hazy area without a particularly well-

3

Defendants attempt to distinguish this action from two past cases, Steffel v. Thompson, 415 U.S. 452 (1974)

and Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006). (Defs.’ Mem. Supp., 8) (Dkt. No. 8).

Doctor John’s considered the case of an adult products store owner who instigated an action to challenge as

unconstitutional certain burdensome regulations focused at sexually oriented businesses. The City counterclaimed

seeking a court order requiring Dr. John’s to comply. Because Doctor John’s had to choose between compliance or

penalties, the court found injury due to the credible threat of enforcement. In Steffel, petitioner and others were

directly threatened with arrest if they did not stop handbilling. As such, both of these cases resulted in standing due

to a direct threat of prosecution or arrest. They are therefore emblematic of the clear credible threat pole, but say

nothing of those cases found somewhere in the middle.

4

Many of Defendants’ arguments against standing revolve around the affidavits of certain Defendants

disaffirming any plan or desire to prosecute Plaintiffs for their bigamist activities. However, these post-complaint

affidavits – swearing to such facts as they exist at the date of the affidavit – have no bearing on the standing

analysis. Rather, they should be reserved for an argument of mootness. See Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“The confusion is understandable, given this Court’s repeated

statements that the doctrine of mootness can be described as the doctrine of standing set in a time frame: The

requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout

its existence (mootness).)”(citations omitted); see also, Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.

2005) (“As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of

the filing of the complaint.”) (citations omitted); see also, Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011)

(“[S]tanding is determined at the time the action is brought, and we generally look to when the complaint was first

filed, not to subsequent events.”) (citations omitted). Inasmuch as Defendants imply that certain Tenth Circuit cases

use post-complaint affidavits in their standing analysis, the court construes them in a manner consistent with

Supreme Court precedence.

It is worth noting that including such affidavits at this juncture would have serious implications. First,

where it is a plaintiff’s burden to establish standing, it is the defendant’s “heavy burden of persuading the court that

the challenged conduct cannot reasonably be expected to start up again.” Friends, 528 U.S. at 189. Using such

affidavits in the injury analysis inappropriately requires the plaintiff to maintain an ongoing-threat after the

complaint and presumably throughout the litigation. Second, by doing so, the mootness analysis is effectively

mooted itself, because the court would necessarily decline to hear many cases due to a lack of standing, thereby

never reaching a determination as to whether the “dispute is capable of repetition yet [evades] review,” or whether

the change in circumstances is due to “voluntary cessation of an alleged illegal practice.” Id., at 190-91.

6

defined test or analysis. In trying to provide more definition in this opaque area of the law, the court notes that the Tenth Circuit has, in certain cases, used the terms “credible” and “likely” somewhat interchangeably. See D.L.S., 374 F.3d at 974. Thus, there is precedent for assuming that a test of probability is appropriate. That said, there still exists a question of whether “likelihood” means “more likely than not,” or something less than probable but still “likely enough” to constitute an objective threat.
The Supreme Court has stated that “[w]hen plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible, they do not allege a dispute susceptible to resolution by a federal court.” Babbitt v. UFW Nat'l Union, 442 U.S. 289, 298-299 (U.S. 1979) (citations omitted). From this it cannot necessarily be said that standing is established anytime a remote possibility of prosecution exists. The implication, however, is that probable prosecution is not required.
Nothing suggests that a threat is calculated at the margin of certainty, but through the momentum of the substantive acts and its temporal relationship to the conduct taken against the complaining party. The court, therefore, holds that the appropriate focus is whether a reasonable person would view the threat of prosecution sufficiently likely that he or she would be deterred from engaging in the prohibited conduct or moved to conceal or otherwise restrain a full and open acknowledgment, participation, support or encouragement of such conduct. Such a threat must be supported by facts that would lead a reasonable person to believe that prosecution is likely. Sufficient facts are sensibly established where affirmative actions taken by governmental officials may be reasonably interpreted as materially tending toward prosecution.5

5

Even if the test were “more likely than not,” the court finds that the allegations and evidence are sufficient

to meet this test.

7

i. Utah’s Anti-Bigamy Statute as Moribund In determining whether Plaintiffs’ case fits this definition, the court begins with a baseline analysis of whether Utah’s Anti-Bigamy Statute is moribund. Where a statute is recently enacted and is not moribund, its existence alone may create a threat that is credible enough to create standing. See Babbitt, 442 U.S. at 301-02 (finding standing to challenge the constitutionality of a statute that criminalized certain deceptive statements made during consumer publicity campaigns, even though the state argued that no criminal penalties had ever been imposed under the statute and might never be imposed); Doe v. Bolton, 410 U.S. 179, 188 (1973) (finding a class of doctors who performed abortions had standing to challenge a Georgia statute banning the procedure, even though no physician had ever been prosecuted or threatened with prosecution for violating the act). In contrast, when a statute has been on the books for a significant time but has not been regularly enforced, plaintiffs must usually show that something beyond the mere existence of the statute creates a credible threat of prosecution. See Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (“The mere presence on the statute books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue, even if they allege an inhibiting effect on constitutionally protected conduct prohibited by the statute.”). Past instances of enforcement against the plaintiff or others in the plaintiff’s situation are factors that can be considered when determining whether a threat of prosecution exists to support standing. Humanitarian Law Project v. United States Treasury Dep’t, 578 F.3d 1133, 1142 (9th Cir. 2009) (noting that one factor in “evaluating the genuineness of [a] claimed threat of prosecution [is] . . . the history of past prosecution or enforcement under the statute”). Even where enforcement actions have been brought under a statute, a clear threat of prosecution may not exist if the other
8

enforcement actions were for conduct different from a plaintiff’s violative actions. See Bronson v. Swenson, 500 F.3d 1099 (10th Cir. 2007) (“[T]he credibility of a ‘threat’ is diluted when a factual dissimilarity exists between the plaintiff’s intended future conduct and the conduct that triggered any prior prosecutions under the challenged statute.”); 6 see also, D.L.S., 374 F.3d at 974-75 (10th Cir. 2004) (“[A] plaintiff cannot show a real threat of prosecution in the face of assurances of non-prosecution from the government merely by pointing to a single past prosecution of a different person for different conduct.”).
Plaintiffs and Defendants note a handful of cases that demonstrate past prosecutions of bigamists in Utah. Inasmuch as the bigamy charges were brought in conjunction with other crimes, the court finds them inapposite. The court will briefly note only those cases mentioned that do not fall into this category.
In re Steed, 2006 UT 10, 131 P.3d 231, 231-32 concerns the removal of a Utah Justice Court judge who was married in a religious ceremony to an additional wife after being appointed to the bench by the city council. (Pls.’ Opp’n, 8) (Dkt. No. 12); (Defs.’ Reply, 7) (Dkt. No. 19). Although the judge’s removal was due to his bigamy, it followed a recommendation by the Utah Judicial Conduct Commission in which no prosecutors were involved because the thrust of the complaint was the judge’s failure to uphold the Utah Constitution and laws after having sworn to do so. Accordingly, this case fails to support a threat of future prosecution.

6

In Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007), Plaintiff sought to “end the criminalization of the

practice of religious polygamy.” Id. at 1105. The injury alleged, however, was simply a denial of marriage licenses.

Id. The court found (1) that Plaintiffs were never “charged, prosecuted, or directly threatened with prosecution.”

Id.; (2) that they had repeatedly admitted that “Utah’s criminal law against polygamy is not being enforced;” and

(3) that they had failed to show that the clerk had both the power and the likelihood of enforcing Utah’s criminal

laws against them. Id. at 1109. In contrast to Bronson, Plaintiffs here allege a number of actions taken by Utah

County that suggest that a credible threat of prosecution exists. Despite the fact that polygamists have rarely been

prosecuted for polygamy, those actions undermine that no credible threat of prosecution exists. Lastly, there is no

doubt that the Utah County prosecutors’ office has the power to enforce Utah’s anti-bigamy laws. As such, Bronson

is distinguished from the instant case.

9

Plaintiffs also point to a 1999 case in which Mark Easterday pled guilty to bigamy. (Pls.’ Opp’n, 8); (Defs.’ Reply, 7). According to the evidence, he was charged with bigamy and no other crime. Ultimately, he was threatened with jail time if he did not submit to a plea agreement. Thus, this case creates some threat of prosecution.7 However, because it is the only notable case involving the prosecution of bigamy in the past thirteen years, the court finds that Utah’s Anti-Bigamy Statute may be generally considered moribund. Plaintiffs must therefore demonstrate that additional threatening activities were taken by government officials to show that a credible threat of prosecution exists.
ii. Utah State Officials Despite naming as Defendants Gary R. Herbert and Mark Shurtleff, Plaintiffs fail to allege any actions by them, at their direction or, indeed, at the direction of the State of Utah that could be construed as threatening Plaintiffs with prosecution for bigamy. To the contrary, it is undisputed that the State has a policy of not prosecuting polygamy, except in such circumstances where other crimes are being committed. (Compl., ¶ 142.) For this reason, Plaintiffs were assured by Defendant Shurtleff and his office on multiple occasions that they would not be prosecuted for their participation in the Sister Wives series. (Compl., ¶¶ 141-42, 144-45.) Indeed, nothing suggests that the State of Utah has taken any action towards Plaintiffs that could be interpreted as threatening prosecution. The court, therefore, finds Plaintiffs’ allegation that the “Utah Attorney General’s Office also announced a criminal investigation of the Browns for violating Utah’s criminal bigamy law” to be unsubstantiated and it must therefore be disregarded. (Compl., ¶ 159.) Thus, it is clear that an objective threat of prosecution by the

7

Defendants note that Mr. Easterday was only prosecuted after his first wife alerted prosecutors. This

ultimately cuts against Defendants’ argument, because it establishes a willingness to prosecute bigamy when the

case is brought to a prosecutor’s attention, despite not actively looking for such cases. (Defs.’ Reply, 7) (Dkt. No.

19).

10

State of Utah does not exist. Accordingly, Defendants’ motion as to Gary R. Herbert and Mark Shurtleff is granted.8
iii. Utah County Prosecutors Although the court finds that no Utah State Official has taken actions that credibly threaten prosecution, this is not the case with the Utah County Prosecutor’s office. 9 Lt. Paul stated that after the Sister Wives show aired, the Lehi City Police Department “started receiving calls from all over the place, wondering what we intended to do.” 10 (Pls.’ Supp. Authority, 3) (Dkt. No. 28-1). Then, “[t]he day after the show premiered . . . the Lehi City Police Department announced it is conducting a bigamy investigation of the family.” (Kody Brown Aff., 2) (Dkt. No. 13); (Pls.’ Supp. Authority, 3) (Dkt. No. 28-1). Indeed, Deputy Utah County Attorney, Julia Thomas, is alleged to have stated publicly that the Browns were placed under investigation after prosecutors saw a Sister Wives promotional trailer. (Kody Brown Aff., 3.) And Lehi City Police Lt. Darren Paul indicated that bigamy was the focus of the investigation, stating, “Right now we’re looking at the bigamy aspect of it. As the investigation goes on, we’ll see where it goes

8

Defendants Herbert and Shurtleff may also be dismissed for Plaintiffs’ failure to demonstrate the causation

element of standing. As stated, infra, the causation element in a pre-enforcement challenge to the constitutionality

of a statutory provision is met if “the named defendants . . . possess authority to enforce the complained-of-

provision.” Bronson v. Swenson, 500 F.3d 1099, 1110 (10th Cir. 2007). Plaintiffs have failed to allege that

Defendant Herbert, in his official capacity as Governor of the State of Utah, has such authority. “General authority

to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation

challenging the law.” Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001); see also, Day v.

Sebelius, 376 F. Supp. 2d 1022, 1031 (D. Kan 2005) (finding that the Kansas Governor’s general enforcement

power as prescribed in Kansas Const. Art. 1, § 3 is insufficient to confer jurisdiction in the challenge of a statute).

Like the Kansas Constitution, the Utah Governor’s executive power is similarly stated: “The executive power of the

state shall be vested in the Governor who shall see that the laws are faithfully executed.” Utah Const. Art. VII, §

5(1). As such, Governor Herbert is not a proper defendant.

9

At the hearing held December 16, 2011, the court inquired into the fact that the Lehi City Police

Department was alleged to have made the announcement, but was not listed as a defendant. Plaintiffs explained that

Jeffrey R. Buhman and the Utah County Prosecutors office is the prosecutorial arm for the Lehi City Police.

Defendants accepted the proffer without objection. As such, the court finds that for purposes of standing, those

actions taken by the Lehi City Police Department may be appropriately extended to Jeffrey R. Buhman in his official

capacity as County Attorney for Utah County.

10

Despite the inherent evidentiary problems associated with news articles, each party has submitted such

information without objection. Accordingly, the court will not decide their admissibility. Their factual content is

deemed conceded for purposes of this motion.

11

from there.” (Pls.’ Supp. Authority, 5) (Dkt. No. 28-1). Based upon that announcement, all Plaintiffs allege that they then “fled Utah for fear that Utah law enforcement officials would prosecute them under the State’s criminal bigamy statute for maintaining a plural family.” (Compl., ¶¶ 32-36.) Considering the unchallenged allegations and evidence as presented, the court finds that the allegations support an inference that the actions of the Lehi City Police Department and Utah County prosecutors were in response to Plaintiffs’ participation in the Sister Wives television show, and that such actions focused directly and exclusively on Plaintiffs’ bigamist conduct.
Before deciding on whether this activity constituted a credible threat of prosecution, the court notes that unlike the State, “Utah County does not have a formal, declared policy regarding prosecution of polygamy.” (Buhman Aff., ¶ 6) (Dkt. No. 8-1). Consistent with this lack of policy, Mr. Buhman has sworn that he has “not stated publically that [he] will or will not prosecute the Browns.” (Buhman Aff., ¶ 5); (Pls.’ Supp. Authority, 7) (Dkt. No. 28-1). That said, Mr. Buhman has submitted nothing to the court that either counters Plaintiffs’ account of the events, or otherwise suggests that the prosecutorial door is not wide open. Indeed, at oral argument, Utah County expressly declined to disavow that Plaintiffs may be prosecuted for bigamy and acknowledged that the investigation of Plaintiffs is continuing. Rather, Defendants simply argue that “the Utah County Attorney has never tracked [polygamists in Utah County] and [that] the office is not currently tracking any of these polygamist communities.” (Buhman Aff., ¶ 8.) Defendants also argue that the lack of prosecution by Utah County demonstrates that “the track record of Utah County belies any likely future prosecution.” (Defs.’ Mem. Supp. Mot. Dismiss, 11) (Dkt. No. 8). Although such prosecutions may not actually be sought, Utah County has no legal, practical or policy-based impediment against prosecuting bigamists that simply
12

become known to the prosecutors – such as through a reality television series. In the end, no evidence suggests that the actions of Utah County officials tended toward anything but prosecution.
Utah County seeks to excuse their failure to disavow any prosecution by arguing that “there are good reasons why prosecutors have rules against commenting on a case during an investigation or prior to an arrest.” (Defs.’ Reply, 5) (Dkt. No.19.) The problem with this statement, however, is that it completely contradicts the fact that the prosecutors did comment on the case in announcing the investigation, before the eyes of the public. (Pls.’ Supp. Authority, 3) (Dkt. No. 28-1). Indeed, members of the Lehi City Police Department have been interviewed or otherwise quoted for public statements in news and tabloid sources, including the Deseret News, The Salt Lake Tribune, and People Magazine. (Compl., ¶¶ 163, 165, 167.) Such statements have included threatening language, stating that Plaintiffs “have definitely made it easier for us by admitting to felonies on national TV.” (Pls.’ Supp. Authority, 6) (Dkt. No. 28-1), (Compl., ¶ 165), (Kody Brown Aff., 3) (Dkt. No. 13). As such, Utah County cannot now tenably argue that it has a right to wage a public relations battle in front of the bright-lights of the national media and then exercise the option to abscond to the shadows without consequence when before the court.
The entirety of actions by the Utah County prosecutors tend to show either an illconceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law. Without any evidence to the contrary, the court assumes that these are consummate professionals making announcements of criminal investigations to apprise the public that they are doing their duty and seeking to enforce
13

the law. Indeed, it makes no sense for Mr. Buhman and his office to make a public display of an investigation of a crime that, as Defendants note, needs little investigation due to Plaintiffs’ own public admissions. (Defs.’ Reply, 3) (Dkt. No. 19) (stating, “[i]f the prosecutors were going to prosecute the Browns for polygamy, they do not need to do an investigation”).
In fine, although this case does not lie at the extreme of the “credible threat” pole, it is very, very close. Indeed, a public announcement by Utah County officials was substantial and done quickly in response to the airing of Sister Wives. Their acts suggest that an actual prosecution of Plaintiffs is forthcoming.11 And without any mitigating evidence to counterbalance the affirmative actions of government actors which tend toward prosecution, the court finds that a credible threat of prosecution, although not certain, objectively and credibly exists. Accordingly, Plaintiffs’ have established injury-in-fact.
B. The Causation Prong of Standing The causation element in a pre-enforcement challenge to the constitutionality of a statutory provision is met if “the named defendants . . . possess authority to enforce the complained-of-provision.” Bronson v. Swenson, 500 F.3d 1099, 1110 (10th Cir. 2007) (finding that the clerk did not cause injury by denying a marriage license because the clerk had no authority to initiate criminal proceedings). It is undisputed that Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County, has the authority to enforce Utah’s Anti-Bigamy Statute.12 And, because it is alleged that Mr. Buhman and his office took the affirmative threatening acts, this prong is met.

11

The fact that ten months had passed at the filing of the complaint without an active prosecution is of no

moment. The fact that Mr. Buhman has continued to leave the prosecutorial door open, fails to mitigate the other

acts and statements previously made.

12

The Utah Constitution provides that they are the “public prosecutors who shall have primary responsibility

for the prosecution of criminal actions brought in the name of the State of Utah . . . .” Utah Const. Art. VIII, § 16.

14

C. The Redressability Prong of Standing The Tenth Circuit has stated that “the requirement of redressability ensures that the injury can likely be ameliorated by a favorable decision.” S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1233 (10th Cir. 2010). Although Defendants have not disputed redressability, it is important to note that more is needed than a court decreeing a statute unconstitutional. If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. Rhodes v. Judiscak, 653 F.3d 1146, 1150 (10th Cir. 2011) (citing Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring)); see also Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (“[W]here a plaintiff seeks a declaratory judgment against his opponent, he must assert a claim for relief that, if granted, would affect the behavior of the particular parties listed in his complaint.”). In other words, “it must be the effect of the court’s judgment on the defendant that redresses the plaintiff[s’] injury, whether directly or indirectly.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005). Because Plaintiffs seek not only a ruling that Utah’s Anti-Bigamy Statute is unconstitutional, but also seek to enjoin its enforcement against Defendants and, because such an injunction would relieve Plaintiffs’ threat of prosecution, the redressability prong is met. (Compl., 39.)
15

II. PLAINTIFFS’ STANDING TO CHALLENGE THE ENFORCEMENT OF UTAH’S ANTI-BIGAMY STATUTE UNDER A CHILLING OF FIRST
AMENDM ENT RIGHTS13 Plaintiffs argue that because the Utah County criminal investigation followed their public
discussion and transparency “to the world about their plural family,” the investigation is therefore “calculated, or has the effect of, chilling the Brown family’s speech . . . .” (Compl., ¶¶ 206-08.)
“[B]ecause of the significance of First Amendment rights, the Supreme Court ‘has enunciated other concerns that justify a lessening of prudential limitations on standing.’” Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (quoting Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984)). This is because “the mere threat of prosecution under [an] allegedly unlawful statute may have a ‘chilling effect’ on an individual’s protected activity, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged.” Id.; see also New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.”).

13

This analysis relates to the following First Amendment claims: Third Claim for Relief: Free Exercise;

Fourth Claim for Relief: Free Speech; Fifth Claim for Relief: Freedom of Association; Sixth Claim for Relief:

Establishment of Religion.

16

A. The Injury-in-Fact Prong of Standing Under a First Amendment Chilling Theory
The Tenth Circuit has articulated the standing requirements for a First Amendment
“chilling” in Walker:
We hold that plaintiffs in a suit for prospective relief based on a “chilling effect” on speech can satisfy the requirement that their claim of injury be “concrete and particularized” by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced . . . . If the plaintiffs satisfy these three criteria, it is not necessary to show that they have specific plans or intentions to engage in the type of speech affected by the challenged government action.
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006).
“Allegations of a subjective chill on a plaintiff’s speech are not an adequate substitute for
a claim of specific present objective harm or a threat of specific future harm.” Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006). The court now applies the
facts as stated in the complaint and the evidence as offered in the hearing on this motion to the
Walker prongs.
i. First Prong: Plaintiffs engaged in the type of speech affected by the challenged government action.
To meet the first prong of Walker, Plaintiffs allege that they have lived openly as a plural
or polygamous family in Utah for many years and have continued to speak about their lifestyle in
an effort to educate the public. (Compl., ¶¶ 119-20, 128-29.) For example, Plaintiff Christine
Brown participated in public interviews, including a nationally televised interview with HBO in
2007, the television show 48 Hours in 2008, and spoke to a University of Utah class about
polygamy and her polygamist practices in 2009. (Compl., ¶¶ 130-33.) In 2010, the Browns
17

became involved with the Sister Wives television program, a popular TLC network reality television series based on their family. (Compl., ¶¶ 22, 157.) The Browns have stated that “they knew the dangers of going public with their lifestyle, but insisted it was worth the risk to educate people about polygamy.” (Pls.’ Supp. Authority, 6) (Dkt. No. 28-1). As such, there is no doubt that Plaintiffs “have engaged in the type of speech affected by the challenged government action.” Walker, 450 F.3d at 1089 (10th Cir. 2006). Accordingly, the first prong of Walker is met.
ii. Second Prong: Plaintiffs have a present desire, though no specific plans, to engage in such speech.
It is clear from the pleadings that the Browns participated in the Sister Wives program in Utah, but after the alleged threats by Utah County they felt compelled to move to Nevada in order to freely continue their participation in the television program. Defendants argue that Plaintiffs’ speech has not been chilled because their participation in the program has continued. This is incorrect. Because Plaintiffs are challenging the constitutionality of a Utah statute under a chilling theory, it is their speech in Utah that is material. As such, it is unimportant whether they continue their speech outside of Utah, or continue to simply visit relatives and associates in Utah. (Compl., ¶ 25.)
Lastly, it is clear that the Browns would like to return to Utah. (Compl., ¶ 28.)14 Janelle Brown has stated, for example, that if Utah’s anti-bigamy law was found unconstitutional and “this threat lifted from our family, we would feel free to finally return to Utah . . . .” (Janelle Brown Aff., ¶ 27) (Dkt. No. 15). Based upon the evident desire to continue with the Sister Wives program, and their desire to return to Utah, the court finds that Plaintiffs have expressed “the

14

The complaint alleges that “[t]he Brown family expects to move back to Utah in light of their strong

connection to the state.” (Compl., ¶ 28.) Because nothing suggests that the Browns have an actual plan or

timeframe for doing so, the fact that they “expect” to move back to Utah is construed as simply an optimistic hope to

return.

18

present desire, though no specific plans, to engage in [their] speech.” Walker, 450 F.3d at 1089. Accordingly, this prong is met.
iii. Third Prong: A plausible claim that Plaintiffs presently have no intention to do so because of a credible threat that the statute will be enforced.
The Tenth Circuit has noted that most cases involving “standing based on a First Amendment chilling effect arise in the context of criminal laws prohibiting various forms of speech or expressive conduct.” Walker, at 1088. Chilling does not, however, only occur in the direct regulation of expression context. Indeed, “[a] plaintiff who alleges a chilling effect asserts that the very existence of some statute discourages, or even prevents, the exercise of his First Amendment rights.” Id. at 1089. Thus, for the chilling effect to amount to an injury, “it must arise from an objectively justified fear of real consequences, which can be satisfied by showing a credible threat of prosecution or other consequences following from the statute’s enforcement.” D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (citing Ward, 321 F.3d at 1267). Such “other consequences” can include softer harms, such as reputational damage. See Walker, 1096 (citing Meese, 481 U.S. at 472-73 (noting that the government’s labeling of films as “political propaganda” made it undesirable for Plaintiff to exhibit them, thus causing an objective chill on his First Amendment right)). Indeed, “Meese demonstrates that, in some cases, First Amendment plaintiffs can assert standing based on a chilling effect on speech even where the plaintiff is not subject to criminal prosecution, civil liability, regulatory requirements, or other direct effect, and even where . . . the plaintiff has not asserted any legal interest that is subject to judicial protection.” Walker, at 1096.
This case differs in that Plaintiffs’ “other consequences” (e.g. reputation, monetary damages, lost jobs, etc.) do not extend from the simple existence of the anti-bigamy statute. It likewise follows that an injury stemming from a threat of enforcement is only cognizable if the
19

threat of enforcement is itself credible. As such, the chilling analysis to establish standing in this action must focus on whether there is a credible threat of enforcement. For the reasons previously articulated, supra, the court finds that this prong is met.
B. The Causation and Redressability Prongs of Standing Under a First Amendment Chilling Theory
For the reasons discussed, supra, the court finds that the standing prongs of causation and redressability are met.
As a final note, the court reiterates the Supreme Court’s comment that “when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged.” Munson Co., Inc., 467 U.S. at 956. This interest is no more prominently displayed than in a case such as this, where government officials make public comments regarding the instigation of a criminal investigation in direct response to a party’s exercise of free-speech and then, seek to bar Plaintiffs’ access to the courts and de facto strip them of any opportunity to be heard. Such precedent would not create a simple slippery-slope, but an unfettered path towards government harassment and abuse. Accordingly, Plaintiffs have established standing to bring their First Amendment claims against Utah County.
III. THE COURT’S ORDER TO SHOW CAUSE On October 28, 2011, the court issued an order to show cause why the United States
should not be joined as a required party due to its interest in Utah’s prohibition of polygamous or plural marriages as a condition for granting statehood, as stated in the Utah Enabling Act of 1894, ch. 138 § 3,28 Stat. 107,108. Having reviewed the briefs, the court determines that notice will be given to the United States to determine if it wishes to intervene.
20

CONCLUSION For the reasons stated herein, Defendants’ motion as to Defendants Gary R. Herbert, in his official capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as Attorney General of Utah, is GRANTED. These Defendants are dismissed. Defendants’ motion with regard to Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County, is DENIED.
DATED this 3rd day of February, 2012.
BY THE COURT:

______________________________ Clark United

Waddoups States District Court Judge

21

 
 Case 2:11-cv-00652-CW Document 107 Filed 05/13/16 Page 1 of 53 Appellate Case: 14-4117 Document: 01019619838 Date Filed: 05/13/2016 Page: 1

FILED

United States Court of Appeals

PUBLISH

Tenth Circuit

UNITED STATES COURT OF APPEALS

May 13, 2016

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

KODY BROWN; MERI BROWN; JANELLE BROWN; CHRISTINE BROWN; ROBYN SULLIVAN,

Plaintiffs - Appellees,

v. JEFFREY R. BUHMAN,

No. 14-4117 (D.C. No. 2:11-CV-00652-CW)
(D. Utah)

Defendant – Appellant.

-----------------------------------------

EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; SOUND CHOICES COALITION, INC.; CATO INSTITUTE,

Amici Curiae. _________________________________

ORDER _________________________________

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges. _________________________________

This matter is before the court on the appellees’ Petition for Rehearing En Banc.

Upon consideration, any implicit request for panel rehearing is denied by the original

panel members. For clarification, however, the panel has decided, sua sponte, to amend

Case 2:11-cv-00652-CW Document 107 Filed 05/13/16 Page 2 of 53 Appellate Case: 14-4117 Document: 01019619838 Date Filed: 05/13/2016 Page: 2
the original decision. A copy of the amended decision is attached to this order, and the clerk is directed to reissue the opinion nunc pro tunc to the original filing date.
The request for en banc rehearing and the amended opinion were also transmitted to all of the judges of the court who are in regular active service and who are not recused. As no member of the original panel or the en banc court requested that a poll be called, the petition for en banc review is denied.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
2

Case 2:11-cv-00652-CW Document 107 Filed 05/13/16 Page 3 of 53 Appellate Case: 14-4117 Document: 01019619838 Date Filed: 05/13/2016 Page: 3

FILED

United States Court of Appeals

PUBLISH

Tenth Circuit

UNITED STATES COURT OF APPEALS

April 11, 2016

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

KODY BROWN; MERI BROWN; JANELLE BROWN; CHRISTINE BROWN; ROBYN SULLIVAN,

Plaintiffs - Appellees, v.

14-4117

JEFFREY R. BUHMAN,

Defendant - Appellant,

-------------------------------EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; SOUND CHOICES COALITION, INC.; CATO INSTITUTE,

Amici Curiae. _________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:11-CV-00652-CW)
_________________________________

Parker Douglas, Utah Federal Solicitor, Utah Attorney General’s Office, Salt Lake City, Utah, appearing for Appellant.

Jonathan Turley, George Washington University School of Law, Washington, DC (Adam Alba, Magleby & Greenwood, Salt Lake City, Utah, with him on the briefs), appearing for Appellees.

Eugene Volokh, UCLA School of Law, Scott & Cyan Banister First Amendment Clinic, Los Angeles, California, and Ilya Shapiro, Cato Institute, Washington, DC, filed an amicus brief for Cato Institute.

Case 2:11-cv-00652-CW Document 107 Filed 05/13/16 Page 4 of 53 Appellate Case: 14-4117 Document: 01019619838 Date Filed: 05/13/2016 Page: 4
Lawrence John Joseph, Law Office of Lawrence J. Joseph, Washington, DC, filed an amicus curiae brief for Eagle Forum Education & Legal Defense Fund.
Christian A. Kesselring, Wasatch Law Group, Heber City, Utah, filed an amicus curiae brief for Sound Choices Coalition, Inc.
_________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges. _________________________________
MATHESON, Circuit Judge
_________________________________
I. INTRODUCTION This case concerns a constitutional challenge to Utah’s bigamy statute, Utah Code
Annotated § 76-7-101 (“the Statute”), which provides:
(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. Exercising jurisdiction under 28 U.S.C. § 1291, we hold this matter is moot. It is
not a “Case” or “Controversy” under Article III of the U.S. Constitution. We remand to
the district court with instructions to vacate the judgment and dismiss this action.
Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan
(“the Browns”) form a “plural family.” Kody Brown is legally married to Meri Brown
and “spiritually married” to the other three women, whom he calls “sister wives.” When
the family became the subject of a TLC reality television show in 2010, the Lehi Police
Department opened an investigation of the Browns for violating the Statute. The Browns
- 2 -

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then filed a 42 U.S.C. § 1983 action in federal district court against the Governor and Attorney General of the State of Utah and the Utah County Attorney. Claiming the Statute infringed their First and Fourteenth Amendment rights, the Browns sought declaratory relief and a permanent injunction enjoining enforcement of the Statute against them.
The district court dismissed the Governor and Attorney General. The Utah County Attorney’s Office (“UCAO”) subsequently closed its file on the Browns and adopted a policy (“the UCAO Policy”) under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse. The Browns fall into neither category. Nonetheless, the district court denied the Utah County Attorney’s motion to dismiss the case as moot and instead granted summary judgment to the Browns.
The district court erred by proceeding to the merits. Federal courts are courts of limited jurisdiction. They lack power to decide issues—however important or fiercely contested—that are detached from a live dispute between the parties. Following adoption of the UCAO Policy, the Browns’ suit ceased to qualify as an Article III case or controversy. Their suit was moot before the district court awarded them relief, and the court therefore lacked jurisdiction to decide the Browns’ claims.
- 3 -

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II. BACKGROUND A. Factual Background Kody Brown, a former resident of Lehi, Utah, is legally married to Meri Brown. He is also “spiritually married”—but not legally married—to Janelle Brown, Christine Brown, and Robyn Sullivan, who “consider themselves committed to him as ‘sister wives.’” App., Vol. 1 at 23, 37.1 Together, the Browns form a “plural family.” Id. at 36. The Browns belong to the Apostolic United Brethren Church (“AUB”), which views polygamy as “a core religious practice.” App., Vol. 3 at 564.2 Consistent with AUB teaching, they “believe that only through celestial marriage can they ensure the salvation of their souls following death.” App., Vol. 1 at 36. In September 2010, TLC began airing “Sister Wives,” a reality television show featuring the Browns that “explores the daily issues and realities of a plural family.” App., Vol. 3 at 565. On the show, the Browns have discussed their religious belief in polygamy and defended their polygamist lifestyle.
1 It is unclear from the record exactly what the Browns mean by “spiritual marriage.” According to the complaint, “Kody Brown considered himself committed to his Co-Plaintiffs as head of the plural family, a position imposing on him the duty to raise and father children with each of his spiritual wives.” App., Vol. 1 at 37.
2 The Statute refers to “bigamy” rather than “polygamy,” Utah Code Ann. § 76-7101(1), although liability extends to defendants with more than two spouses, see, e.g., State v. Green, 99 P.3d 820, 822 (Utah 2004). For purposes of this opinion, the difference between bigamy and polygamy is immaterial. We therefore use the terms interchangeably.
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Viewers of the show contacted the Lehi Police Department to “inquir[e] what the department intended to do” about the Browns. App., Vol. 2 at 246. The day after the first episode aired, the Department publicly announced it was investigating the Browns for violations of the Statute.
In October 2010, the Lehi Police Department forwarded the results of its investigation to the UCAO. Following standard practice, the UCAO opened a case file on the Browns. Fearful they would be criminally prosecuted, the Browns moved to Nevada in January 2011. Mr. Buhman was quoted in a January 2011 media report as saying that despite the Browns’ move, his office would not rule out the possibility of prosecution.
B. Procedural Background 1. The Browns’ Complaint
On July 13, 2011, before the UCAO had completed its investigation, the Browns filed suit in the U.S. District Court for the District of Utah. Their complaint named Jeffrey Buhman, County Attorney for Utah County; Gary Herbert, Governor of the State of Utah; and Mark Shurtleff, Attorney General of the State of Utah (collectively, “Defendants”), all in their official capacities.
The Browns alleged the Statute violates (1) their substantive due process right “to freely make personal decisions relating to procreation, contraception, family relationships, and child rearing,” both on its face and as applied, and the due process right not to be subject to vague criminal laws, App., Vol. 1 at 47; (2) the Equal Protection Clause, both on its face and as applied, because it treats religiously motivated
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polygamists differently from other people; (3) their right to the free exercise of religion, both on its face and as applied; (4) their free speech rights because prosecutors used the Statute to single them out based on their public statements endorsing polygamy; (5) their freedom of association, both on its face and as applied, because its application has deprived the Browns of “the right to associate with other like-minded citizens who believe that consenting adults should be able to maintain private relations and unions without interference from the state,” id. at 52; and (6) the Establishment Clause of the First Amendment. In their seventh and final cause of action, the Browns asserted Defendants were “in violation of 42 U.S.C. § 1983” because they had deprived the Browns of their constitutional rights while acting under color of state law. Id. at 53.
The Browns’ prayer for relief requested (1) a “declar[ation] that [the Statute] violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment, and 42 U.S.C. § 1983”; (2) a “preliminary and permanent injunction enjoining enforcement or application of [the Statute] against the Brown family”; (3) an award of “reasonable attorneys’ fees and costs incurred in maintaining this action”; and (4) “such other relief as [the district court] may deem just and proper.” Id. at 54.
In asserting the district court’s jurisdiction under 28 U.S.C. § 1343(a)(4), the complaint explained that “this action seeks equitable relief under 42 U.S.C. § 1983, an Act of Congress.” Id. at 19. Additionally, the complaint’s “Nature of the Action” section provides, “Through this action, pursuant to 42 U.S.C. § 1983, the Brown family seeks a declaration that [the Statute] is unconstitutional . . . . The Browns further seek a
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preliminary and permanent injunction preventing the Defendants from enforcing the [Statute] against the Browns.” Id. at 19-20. The complaint expressly disclaimed any request for a declaration that the Statute and the Utah Constitution “are unconstitutional to the extent that they merely prohibit the official recognition of polygamous marriage or the acquisition of multiple state marriage licenses.” Id. at 20. Finally, the complaint did not request money damages. 2. Defendants’ Motions to Dismiss
Defendants filed two separate motions to dismiss in district court. One was granted in part; the other was denied.
a. Defendants’ Motion to Dismiss for Lack of Standing On September 2, 2011, Defendants filed a motion to dismiss, arguing the Browns lacked standing to press their claims. Attached to that motion was a declaration signed by Mr. Shurtleff,3 in which he declared his office had a “policy . . . not to prosecute polygamists under Utah’s criminal bigamy statute for just the sake of their practicing polygamy” (“the AG Policy”). Id. at 77. Under the AG Policy, Mr. Shurtleff’s office initiates prosecutions under the Statute only against someone who also “commit[s] child or spouse abuse, domestic violence, welfare fraud, or any other crime.” Id. He said his “predecessors in recent memory” had
3 28 U.S.C. § 1746(2) provides for a declaration subscribed to “under penalty of perjury” to have the same “force and effect” as a “sworn declaration, verification, certificate, statement, oath, or affidavit.” The declarations filed by Mr. Shurtleff and Mr. Buhman in this case were subscribed to “under penalty of perjury.”
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followed the AG Policy, and he was unaware of cases brought “against a polygamist just for violating the bigamy law in the last fifty years unless it is in conjunction with another crime.” Id. at 78. In addition, Mr. Shurtleff attested “[i]t [wa]s not the intent of the Utah Attorney General’s Office to prosecute the Browns for their practice of polygamy while they were living in Lehi, Utah, unless it [wa]s found that they were also committing some other crime worthy of prosecution.” Id. at 79.
Defendants also attached a declaration from Mr. Buhman signed under penalty of perjury. Although the UCAO “d[id] not have a formal, declared policy regarding prosecution of polygamy,” he said no one on his staff “ha[d] any recollection of [the UCAO] having ever prosecuted anyone for polygamy.” Id. at 74. He added, however, that he had “not stated publically that [he] w[ould] or w[ould] not prosecute the Browns.” Id. Mr. Buhman also declared that the UCAO “has on occasion prosecuted a bigamy case for marriage fraud or for a failure to get divorced before remarrying.” Id. at 75. “Were the Browns committing other crimes, such as spousal or child abuse, welfare fraud or the like,” he stated, “the chance of prosecution would be likely.” Id.
Defendants argued the Browns lacked standing because the AG Policy and the UCAO’s non-enforcement of the Statute made prosecution unlikely.
On December 19, 2011, Defendants supplemented the record with a declaration from Amanda Jex, a law clerk in the Attorney General’s Office who had been “assigned the task of researching prosecution of polygamists in Utah subsequent to their public appearances.” Id. at 176. She had asked the Administrative Office of the Courts for the State of Utah to provide a list of cases brought under the Statute in the preceding ten
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years. The Administrative Office responded with a list of ten defendants prosecuted under the Statute between 2001 and 2011. The list did not indicate whether defendants charged under the Statute were also charged with collateral crimes.
To determine whether those ten defendants had also been charged with collateral crimes, Ms. Jex ran “internet queries through Google.com, and Utah based news agencies such as: KSL.com, the Salt Lake Tribune, the Deseret News and The Spectrum.” Id. She also conducted research on Court XChange, an online database operated by the Utah courts. Her declaration does not indicate whether she checked actual court dockets or records or contacted court clerk’s offices for information. There is no evidence in the record regarding prosecutions before 2001.
Of the ten cases Ms. Jex identified in her declaration, six—including two in Utah County—involved defendants who were also prosecuted for crimes other than bigamy, such as criminal non-support, unlawful sexual conduct with a minor, forcible sex abuse, marriage license fraud, and insurance fraud. Ms. Jex’s “internet queries” did not reveal additional charges in the four remaining cases, one of which involved a defendant charged in Utah County in 2010. But prosecutors dismissed the charges in three of those cases, including the Utah County case. The final defendant was found guilty in Weber County of “[a]ttempted bigamy.” App., Vol. 1 at 179.
On February 3, 2012, the district court dismissed Governor Herbert and Attorney General Shurtleff, concluding, based on the latter’s declaration, that “nothing suggest[s] that the State of Utah has taken any action towards [the Browns] that could be interpreted as threatening prosecution.” Brown v. Herbert, 850 F. Supp. 2d 1240, 1249 (D. Utah
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2012). But the court denied dismissal of Mr. Buhman. Id. at 1244. Noting the UCAO’s lack of an official prosecution policy, the court said, “Mr. Buhman ha[d] submitted nothing to the court that either counters [the Browns’] account of the events, or otherwise suggests that the prosecutorial door is not wide open.” Id. at 1251. The Browns faced “a credible threat of prosecution,” the court concluded, and therefore had standing to bring their claims. Id. at 1252.
b. Mr. Buhman’s Motion to Dismiss for Mootness Four months later, on May 31, 2012, Mr. Buhman filed a motion to dismiss the Browns’ suit as constitutionally moot. The motion was based on a second declaration Mr. Buhman had signed on May 22, 2012, in which he announced he had “now adopted a formal office policy” regarding polygamy prosecutions—the UCAO Policy. App., Vol. 2 at 329. The UCAO Policy, which essentially adopts the AG Policy, provides: Prosecution of Bigamy Crimes: The Utah County Attorney’s Office will prosecute the crime of bigamy under [the Statute] in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentation or omissions; or (2) When a person purports to marry or cohabits with another person in violation of [the Statute] and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy under Section 76-7-101.5 regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud. Id. According to Mr. Buhman’s declaration, the UCAO Policy was “intended . . . to prevent the future prosecution in Utah County of bigamous marriages entered into for religious reasons.” Id.
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Mr. Buhman also attested that the UCAO “ha[d] concluded its investigation of the Browns and ha[d] determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration.” Id. As a result, he wrote, “the criminal case against the Browns is closed and no charges will be filed against them for bigamy unless new evidence is discovered which would comport with the [UCAO Policy] pertaining to the prosecution of bigamy crimes.” Id. at 330. The district court concluded in its subsequent summary judgment order and memorandum that it was undisputed Mr. Buhman had “found no evidence of any crime by the Browns.” App., Vol. 3 at 566.
On August 17, 2012, the district court denied Mr. Buhman’s motion. It reasoned that the “timing of Mr. Buhman’s adoption of the [UCAO Policy]”—18 months after “Sister Wives” began airing and four months after the initial motion to dismiss was denied—suggested a “strategic attempt to use the mootness doctrine to evade review.” App., Vol. 2 at 493. The court also noted that the UCAO Policy “does not reject the ability of Utah County to prosecute under the anti-bigamy statute” and “reflects, at most, an exercise of prosecutorial discretion.” Id. at 494. Accordingly, the court denied the Browns’ case was constitutionally moot because it could not “conclude that there is no reasonable expectation that [the Browns] would be prosecuted under the statute in the future.” Id. at 496.
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Taking up the question of prudential mootness sua sponte, the district court concluded similar considerations counseled against dismissing the case on that basis.4 The district court wrote that “the timing of the [UCAO Policy] implementation, lack of any public notice, and lack of reasoning given for adopting the [UCAO Policy] suggest that the [UCAO Policy] was implemented, not to provide a remedy to [the Browns] in this case, but instead to evade review of [the Browns’] claims on the merits.” Id. at 498. 3. Cross-Motions for Summary Judgment
On May 31, 2012, the Browns filed a motion for summary judgment on all claims. Mr. Buhman filed a cross-motion for summary judgment.
On December 13, 2013, the district court entered a lengthy order granting the Browns’ motion for summary judgment and denying Mr. Buhman’s cross-motion. Brown v. Buhman, 947 F. Supp. 2d 1170, 1176 (D. Utah 2013). That order first addressed the Statute’s “cohabitation prong,” which imposes criminal liability on a person who, “knowing he has a husband or wife or knowing the other person has a husband or wife, . . . cohabits with another person.” Utah Code Ann. § 76-7-101(1). The court held this portion of the Statute violated the First Amendment’s Free Exercise Clause, lacked a rational basis under the Fourteenth Amendment Due Process clause, and
4 “Courts recognize two kinds of mootness: constitutional mootness and prudential mootness.” Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (brackets and quotation omitted). “Even if a case is not constitutionally moot, a court may dismiss a case under the prudential-mootness doctrine if the case is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” Id. at 1024 (emphasis in original) (brackets and quotations omitted).
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was void for vagueness. Id. at 1176, 1226. In addition, the court concluded the Browns’ remaining claims—those based on freedom of association, freedom of speech, equal protection, and the Establishment Clause—were at least “colorable,” entitling the Browns to relief under the “hybrid rights” theory of religious free exercise. Id. at 1222.5 The court therefore determined the cohabitation prong had to be “stricken” from the Statute. Id.
Having struck the cohabitation prong, the court turned to the Statute’s “purports to marry” prong, which states, “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.” Utah Code Ann. § 76-7-101(1). The Utah Supreme Court had previously held that under this portion of the Statute, liability attaches when a couple hold themselves out as married, even if they do not profess to be legally married. State v. Holm, 137 P.3d 726, 732 (Utah 2006). The district court acknowledged Holm’s holding but concluded that “[u]nder this broad interpretation of the term ‘marry,’ the phrase ‘purports to marry another person’ raises the same constitutional concerns addressed in
5 Neutral, generally applicable laws that incidentally burden religious free exercise will ordinarily survive constitutional challenge as long as they are rationally related to a legitimate government interest. Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006). But under the hybrid rights doctrine, “a party c[an] establish a violation of the free exercise clause even in the case of a neutral law of general applicability by showing that the challenged governmental action compromised both the right to free exercise of religion and an independent constitutional right.” Id. at 655. The “hybrid-rights theory at least requires a colorable showing of infringement of a companion constitutional right.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (quotation omitted).
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relation to the cohabitation prong.” Brown, 947 F. Supp. 2d at 1192, 1226. It therefore
adopted a “narrowing construction” that interprets “purports to marry” as “referring to an
individual’s claim of entry into a legal union recognized by the state as marriage.” Id. at
1231 (quoting Holm, 137 P.3d at 763 (Durham, C.J., concurring in part and dissenting in
part)).6 The court held that, as construed—with the cohabitation prong stricken and the
“purport to marry” prong narrowed—the Statute survives constitutional scrutiny. Id. at
1233-34.
The district court entered judgment in favor of the Browns on December 17, 2013,
but did not order injunctive relief.7
6 The court did not explain where it derived the authority to construe a state statute differently from how the state’s highest court had construed it. See Johnson v. United States, 559 U.S. 133, 138 (2010) (“We are, however, bound by the Florida Supreme Court’s interpretation of state law, including its determination of the elements of Fla. Stat. § 784.03(2).”); Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (“It is axiomatic that state courts are the final arbiters of state law.” (quotation omitted)). Even if adopting an alternative construction might avert possible constitutional problems, federal courts must defer to states’ interpretations of their own statutes. See Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1106 (10th Cir. 1997) (instructing, in void-for-vagueness case, that “[w]e must read the statute as it has been interpreted by Colorado’s highest court”); United States v. Gaudreau, 860 F.2d 357, 361 (10th Cir. 1988) (“[A] federal court evaluating a vagueness challenge to a state law must read the statute as it is interpreted by the state’s highest court.” (citing Wainwright v. Stone, 414 U.S. 21, 22-23 (1973))).
7 Like the court’s December 13, 2013 order, the judgment announces that the Statute’s cohabitation prong “is stricken” and the “purports to marry” prong is “susceptible to a narrowing construction.” App., Vol. 3 at 651. Both documents grant the Browns’ summary judgment motion in part and deny Mr. Buhman’s cross-motion, but neither expressly enjoins Mr. Buhman from enforcing the Statute against the Browns. In practical effect, therefore, the district court granted the Browns only one of their requested forms of relief, namely a declaration that the Statute’s cohabitation prong violates the First and Fourteenth Amendments.
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4. Proceedings on “the § 1983 Claim”
The district court vacated its judgment sua sponte on December 20, 2013, because
it had not yet resolved “the status of the 42 U.S.C. 1983 claim.” Dist. Ct. Doc. 84. After
ordering supplemental briefing, the district court, on August 27, 2014, held that
Mr. Buhman had waived qualified immunity and prosecutorial immunity defenses by
failing to plead them in his answer or argue them in the summary judgment briefing.8
The court “therefore f[ound] in favor of [the Browns] on their seventh and final count in
the Complaint under 42 U.S.C. § 1983 and [granted] summary judgment in their favor on
this last remaining count.” App., Vol. 3 at 728.9 It construed the complaint to include a
8 This holding was erroneous. Immunity defenses are not available—and therefore cannot be waived—in suits seeking relief against a public official only in his or her official capacity. Cox v. Glanz, 800 F.3d 1231, 1239 n.1 (10th Cir. 2015) (“The defense of qualified immunity is available only in suits against officials sued in their personal capacities, not in suits against . . . officials sued in their official capacities.”) (quotation omitted) (ellipsis in original)); Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 267 (10th Cir. 1994) (“[N]either qualified nor absolute immunity precludes prospective injunctive relief except in rare circumstances not relevant here.” (emphasis in original)); see also Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 9.01[3] (3d ed. 2005) (“The common-law absolute and qualified immunities that have been recognized in § 1983 actions pertain to claims for monetary relief against state and local officials in their personal capacities. Neither the absolute nor qualified immunities extend to suits for injunctive or declaratory relief under § 1983.”) (footnote omitted)).
9 The Browns and the district court misapprehended the relationship between § 1983 and the Defendants’ alleged constitutional violations. “Section 1983 itself does not create any substantive rights, but merely provides relief against those who, acting under color of law, violate federal rights created elsewhere.” Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995). That is, § 1983 is a remedial vehicle for raising claims based on the violation of constitutional rights. There can be no “violation” of § 1983 separate and apart from the underlying constitutional violations. See Sanchez v. Hartley, 810 F.3d 750, 759 (10th Cir. 2016) (“Section 1983 merely provides a cause of action; the substantive rights are created elsewhere.”); accord Schwartz, supra note 8, § 1.05[B] (“Section 1983 fulfills the procedural or remedial role
Continued . . .
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request for money damages but determined the Browns had “drop[ped]” this request in
their supplemental briefing. Id. at 728.10 Accordingly, the court awarded the Browns
of authorizing the assertion of the claim for relief but does not itself create or establish substantive rights. Thus, one cannot go into court and claim a violation of § 1983—for § 1983 by itself does not protect anyone against anything.” (quotations omitted)). Accordingly, the Browns’ first six claims could be brought only under § 1983, and claim seven is redundant of those claims.
10 Our review of the complaint reveals no request for money damages. Nor could there be such a request, as the Browns sued Defendants in their official and not their individual capacities. With respect to state officials, such as Mr. Herbert and Mr. Shurtleff, “[s]ection 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (citing Hafer v. Melo, 502 U.S. 21, 30 (1991)); see also Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 958 (6th ed. 2009) (“[D]amages actions pleaded against state officials in their ‘official capacity’ will ordinarily be dismissed as barred by the state’s sovereign immunity. . . . When equitable relief is sought, the defendant official is ordinarily named in an official capacity.” (emphasis in original)).
Assuming he is a municipal official, matters are more complicated as to Mr. Buhman. (If he is instead a state official, the Browns could not seek damages against him for the same reason they could not seek damages against Mr. Herbert and Mr. Shurtleff.)
“The Supreme Court has determined that an official-capacity suit brought under § 1983 generally represents only another way of pleading an action against an entity of which an officer is an agent, and as long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Moss v. Kopp, 559 F.3d 1155, 1168 n.13 (10th Cir. 2009) (quotations and brackets omitted). “To establish a claim for damages under § 1983 against municipal entities or local government bodies, the plaintiff must prove (1) the entity executed a policy or custom (2) that caused the plaintiff to suffer deprivation of constitutional or other federal rights.” Id. at 1168. Here, the Browns did not allege or attempt to prove in district court that Mr. Buhman acted in accordance with a Utah County policy or custom. Damages were therefore unavailable under § 1983. See Fallon, et al., supra, at 958-62 (explaining that “[d]amages actions against local government officers in their official capacities can go forward only [in] accordance with the rules governing local governmental liability described in” Monell v. Department of Social Services, 436 U.S. 658 (1978), which conditions liability on action taken under an official policy or a de facto custom).
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only “attorney’s fees, costs, and expenses incurred in this action under 42 U.S.C. § 1988,” id. at 730, which authorizes such fees and costs in § 1983 suits.
An amended final judgment was entered the same day.11 Mr. Buhman filed a timely notice of appeal on September 24, 2014. See Fed. R. App. 4(a)(1)(A).
III. DISCUSSION Mr. Buhman appeals the district court’s grant of summary judgment to the Browns. He argues the district court erred by (1) finding a free exercise violation despite controlling precedent holding polygamy bans do not offend the Free Exercise Clause, (2) concluding the Statute’s prohibition of “religious cohabitation” lacks a rational basis under the Due Process Clause, and 3) awarding relief on the Browns’ “hybrid rights” claims. On December 11, 2015, we ordered the parties to submit supplemental briefing addressing (1) whether the Browns had standing at the time the complaint was filed, and (2) if so, whether the UCAO Policy rendered the Browns’ claims moot. We do not address the merits of the Browns’ claims. The district court should not have done so, either. Assuming the Browns had standing as to Mr. Buhman when they filed suit, they ceased to have standing when Mr. Buhman filed his May 2012
11 This judgment, like the first, does not enjoin enforcement of the Statute. It only announces the district court’s view that the cohabitation prong of the Statute is unconstitutional and the “purports to marry” prong can be saved only by adopting a narrowing construction.
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declaration, and this case therefore became moot.12 The declaration rendered the threat of prosecution so speculative that a live controversy no longer existed for Article III jurisdiction. We therefore remand to the district court with directions to vacate the judgment and dismiss this case.
A. Standing and Mootness The U.S. Constitution delegates certain powers to each branch of the federal government and places limits on those powers. Article III vests “[t]he judicial Power of the United States . . . in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1. Federal courts exercising this authority are “confine[d] . . . to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (quoting U.S. Const. art. III, § 2). “In our system of government, courts have no business deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (quotation omitted). “As used in the Constitution, those words do not include every sort of dispute, but only those historically viewed as capable of resolution through the judicial process.” Hollingsworth, 133 S. Ct. at 2659 (quotation omitted).
12 “Mootness and standing are jurisdictional. Because there is no mandatory sequencing of nonmerits issues, we have leeway to choose among threshold grounds for denying audience to a case on the merits.” Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014) (quotations, citation, and brackets omitted). Accordingly, we may address mootness without deciding whether the Browns had standing.
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As the Supreme Court has explained, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138, 1146 (2013) (brackets omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 492-93 (2009) (“This limitation is founded in concern about the proper—and properly limited—role of the courts in a democratic society.” (quotation omitted)). The narrow scope of Article III, “which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014); see also Hollingsworth, 133 S. Ct. at 2659 (“[The case-or-controversy requirement] is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” (emphasis in original)).
Two related doctrines, standing and mootness, keep federal courts within their constitutional bounds. Standing concerns whether a plaintiff’s action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision.13 The Supreme Court has described mootness “as the doctrine of
13 A third jurisdictional doctrine, known as ripeness, “aims to prevent courts from entangling themselves in abstract disagreements by avoiding premature adjudication.” Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (quotation omitted); see also Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). “Even if all the relevant facts regarding a particular legal issue are known or knowable, a court does not have jurisdiction to resolve the issue unless that issue arises in a specific dispute having real-world consequences.” Cellport Sys., 762 F.3d at 1029 (brackets and quotation omitted). “The doctrines of standing and ripeness originate from the same
Continued . . .
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standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quotations omitted).14 Failure to satisfy the requirements of either doctrine places a dispute outside the reach of the federal courts. See Already, 133 S. Ct. at 726 (“We have repeatedly held that an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” (quotation omitted)).
We discuss standing and mootness in turn. 1. Standing
Standing “requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Summers, 555 U.S. at 493 (emphasis in original) (quotations omitted).
Article III limitation.” Susan B. Anthony List, 134 S. Ct. at 2341 n.5 (quotations omitted).
14 The Court has cautioned that the “time frame” description of mootness “is not comprehensive.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). In particular, “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Id. Standing, unlike mootness, is also not subject to an exception for disputes that are “capable of repetition yet evading review,” which we discuss below. Id. at 191. These caveats, however, do not affect the general rule that “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English, 520 U.S. at 68 n.22.
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We measure standing as of the time the plaintiff files suit. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 732-33 (2008). The burden is on the plaintiff to establish standing. Summers, 555 U.S. at 493; see Bennett v. Spear, 520 U.S. 154, 16768 (1997) (“[E]ach element of Article III standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” (quotation omitted)).
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 56061 (1992)) (brackets omitted). These three elements—“injury in fact,” “causation,” and “redressability”—“together constitute the irreducible constitutional minimum of standing.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quotation omitted).
This case centers on the injury-in-fact requirement. “An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical. An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List, 134 S. Ct. at 2341 (quotations omitted).
When a plaintiff alleges injury arising from the potential future enforcement of a criminal statute, “an actual arrest, prosecution, or other enforcement action is not a
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prerequisite to challenging the law.” Id. at 2342. Instead, “a plaintiff satisfies the injuryin-fact requirement where he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Id. (quotation omitted); see also Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007) (“[T]he mere presence on the statute books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue, even if they allege an inhibiting effect on constitutionally protected conduct prohibited by the statute.” (quotation omitted)). A credible threat is one that is “well-founded” and “not ‘imaginary or wholly speculative.’” Susan B. Anthony List, 134 S. Ct. at 2343 (quoting Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 302 (1979)). “In other words, to satisfy Article III, the plaintiff’s expressive activities must be inhibited by an objectively justified fear of real consequences.” Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (quotation omitted). 2. Mootness
a. General Principles A plaintiff’s standing at the time of filing does not ensure the court will ultimately be able to decide the case on the merits. An “actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (quotations and citations omitted). “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be
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dismissed as moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quotation omitted). Mootness deprives federal courts of jurisdiction. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1336 (2013); Schell v. OXY USA, Inc., 814 F.3d 1107, 1114 (10th Cir. 2016) (“If a case is moot, we have no subject-matter jurisdiction.”).15
A “suit becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quotation and comma omitted). “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, 133 S. Ct. at 727 (quotation omitted). “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005). “Put another way, a case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (quotations omitted).
b. Exceptions Courts recognize two “exceptions” to the mootness doctrine—situations in which a case remains subject to federal court jurisdiction notwithstanding the seeming extinguishment of any live case or controversy.
15 Constitutional mootness is jurisdictional; prudential mootness is discretionary. See Jordan, 654 F.3d at 1024. Because we conclude the Browns’ claim is constitutionally moot, we do not address prudential mootness in this opinion.
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One exception involves disputes that are “capable of repetition, yet evading review.” “The exception applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007); see also Erwin Chemerinsky, Federal Jurisdiction 137 (6th ed. 2012) (explaining that this exception addresses instances where “injuries occur and are over so quickly that they always will be moot before the federal court litigation process is completed”). Disputes regarding regulation of abortion, for example, are capable of repetition yet evade review because “the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.” Roe v. Wade, 410 U.S. 113, 125 (1973). Mooting this case would not run afoul of the “capable of repetition” exception because any renewed threat of prosecution would leave the Browns ample time and opportunity to challenge the Statute.
The second exception to mootness, relevant here, concerns “voluntary cessation” of the defendant’s conduct. Already, 133 S. Ct. at 727. Under this exception, “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). This rule is designed to prevent gamesmanship. If voluntary cessation
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automatically mooted a case, “a defendant could engage in unlawful conduct, stop when
sued to have the case declared moot, then pick up where he left off, repeating this cycle
until he achieves all his unlawful ends.” Already, 133 S. Ct. at 727. The voluntary
cessation rule “traces to the principle that a party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering questionable behavior.” City
News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). Courts
therefore view voluntary cessation “with a critical eye,” lest defendants manipulate
jurisdiction to “insulate” their conduct from judicial review. Knox, 132 S. Ct. at 2287.
A defendant’s voluntary cessation may moot a case, however, if the defendant
carries “the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” Already, 133 S. Ct. at 727
(quotation omitted).16 The Supreme Court has described this burden as “heavy,” Parents
16 The Supreme Court’s voluntary cessation cases suggest the word “absolutely” adds little to this formulation. After reciting this standard, the Court sometimes omits “absolutely” from its subsequent analysis, instead using the “reasonably be expected” language as shorthand. See Already, 133 S. Ct. at 727 (“Under our precedents, it was Nike’s burden to show that it ‘could not reasonably be expected’ to resume its enforcement efforts against Already.” (quotation omitted)); id. (“That is the question the voluntary cessation doctrine poses: Could the allegedly wrongful behavior reasonably be expected to recur?”); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (“The underlying concern is that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.” (citation, quotations, and brackets omitted)); Friends of the Earth, 528 U.S. at 189 (“The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” (quotation and brackets omitted)); Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 676 (1993) (“[W]e have said that the defendant, to establish mootness, bears a heavy burden of demonstrat[ing] that there is no reasonable
Continued . . .
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Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007), and “stringent,” Friends of the Earth, 528 U.S. at 189.17
But the burden is not insurmountable, especially in the context of government
enforcement. “In practice, [this] heavy burden frequently has not prevented
governmental officials from discontinuing challenged practices and mooting a case.” Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010).
Most cases that deny mootness following government officials’ voluntary cessation “rely
on clear showings of reluctant submission [by governmental actors] and a desire to return
to the old ways.’” Id. at 1117 (brackets and emphasis in Rio Grande Silvery Minnow)
(quoting 13C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
expectation that the wrong will be repeated.” (quotation omitted) (second brackets in original)). But see Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (1998) (“Voluntary cessation of challenged conduct moots a case, however, only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” (quotation omitted) (emphasis in original)). Moreover, although the defendant’s obligation is to show it is absolutely clear that “the allegedly wrongful behavior could not reasonably be expected to recur,” the Supreme Court has never suggested a defendant must make resumption of his conduct impossible.
17 Although a defendant’s “burden” may be heavy, it is also narrow in scope. “[M]ootness is jurisdictional and non-waivable.” Winsness, 433 F.3d at 736 n.4. When we suspect a case may be moot, we must study the question closely and conduct our own assessment, United States v. Hays, 515 U.S. 737, 742 (1995) (“[F]ederal courts are under an independent obligation to examine their own jurisdiction.”), even if the defendant has made no efforts—or very poor ones—to convince us. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.”). Thus, a defendant’s burden is limited to bringing forward information relevant to mootness. Failure to make persuasive arguments based on that information cannot defeat mootness.
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Practice and Procedure, § 3533.6, at 311 (3d ed. 2008)); see also Gessler, 770 F.3d at 908 (same).
We have cited with approval the Fifth Circuit’s decision, in the government enforcement context, “not [to] require some physical or logical impossibility that the challenged policy will be reenacted absent evidence that the voluntary cessation is a sham for continuing possibly unlawful conduct.” Rio Grande Silvery Minnow, 601 F.3d at 1117-18 (quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009)). And we have indicated that government “self-correction . . . provides a secure foundation for mootness so long as it seems genuine.” Id. at 1118 (quoting Wright, Miller & Cooper, § 3533.7, at 326).
B. Standard of Review “We review issues of standing de novo, accepting as true all material allegations of the complaint, and . . . construing the complaint in favor of the complaining party.” Winsness, 433 F.3d at 732 (quotations and brackets omitted) (ellipsis in original). “We review mootness de novo as a legal question.” United States v. Fisher, 805 F.3d 982, 989 (10th Cir. 2015). Mootness in this case turns on whether, following Mr. Buhman’s May 22, 2012 declaration, his allegedly unconstitutional conduct could “reasonably be expected to recur,” which is “squarely a legal determination.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1188 n.15 (11th Cir. 2007). We have addressed the standard of review for mootness based on voluntary cessation, stating that “courts must assess the likelihood that defendants will recommence the challenged, allegedly offensive conduct.” Rio Grande Silvery Minnow, 601 F.3d at
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1122. We referred to this assessment as a “factual inquir[y]” and said “[o]ur review of this question is de novo.” Id. (quotation omitted).
As to mootness in this case, no evidentiary hearing was held, the parties did not contest the facts in each other’s declarations, and the district court needed only to resolve the legal question of mootness, not resolve disputed issues of fact relating to justiciability. Whether our consideration of the underlying facts is plenary or deferential, we conclude the Browns faced no credible threat of prosecution once Mr. Buhman submitted his declaration announcing the UCAO Policy. At that point, their case became moot.
C. Analysis We assume without deciding that when the Browns filed their complaint, they had standing as to Mr. Buhman; that is, they were suffering an injury in fact—namely, “a credible threat of prosecution” under the Statute, Susan B. Anthony List, 134 S. Ct. at 2342—caused by Mr. Buhman and redressable by him. But the district court lost jurisdiction after May 2012, when Mr. Buhman submitted a declaration announcing the UCAO Policy. That policy forbids enforcing the Statute against the Browns, making it clear that prosecution of the Browns “could not reasonably be expected to recur.” Already, 133 S. Ct. at 727 (quotation omitted). The UCAO Policy rendered this case
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moot, and, as we discuss below, the voluntary cessation exception to mootness does not apply.18
1. The Browns’ Case Is Moot Because They Are Under No Credible Threat of Prosecution Our mootness analysis proceeds in three parts. First, the Browns’ complaint seeks
only prospective relief, and mootness therefore turns on whether the district court had
authority to enjoin future alleged constitutional violations. Second, because Mr.
Buhman’s declaration and the Browns’ move to Nevada eliminated any reasonable
expectation that the Browns will be prosecuted, we conclude the district court lacked
such authority. Third, the Browns’ arguments against mootness—that (1) Winsness, in
which we found mootness, requires a different result here; (2) Mr. Buhman’s successor
could abandon the UCAO Policy; (3) Mr. Buhman continues to defend the Statute’s
constitutionality; and (4) Mr. Buhman adopted the UCAO Policy as a tactical maneuver
to moot this case—are not persuasive.
18 Mr. Buhman did not argue in his opening appeal brief that the Browns lacked standing to bring their claims or that this action became moot before the district court entered its summary judgment order. But “[t]he question of standing is not subject to waiver.” Hays, 515 U.S. at 742. Mootness is similarly “non-waivable.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 701 n.20 (10th Cir. 2009). Accordingly, “we are required to address the[se] issue[s] even if . . . the parties fail to raise the issue[s] before us.” Hays, 515 U.S. at 742; see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”). Our request for supplemental briefing was meant to give the parties an opportunity to argue this important threshold question.
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a. Only Prospective Relief Is at Issue Voluntary cessation cannot moot an action seeking damages because damages compensate a party for past conduct, not ongoing or future conduct. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); O’Connor v. Washburn Univ., 416 F.3d 1216, 1222 (10th Cir. 2005) (“The complaint, however, also includes a claim for nominal damages. . . . Unlike the claims for injunctive and declaratory relief, this claim is not mooted by [defendant’s voluntary cessation].”). But contrary to the district court’s understanding, the Browns did not sue for damages and therefore do not seek compensation for any past injuries they may have suffered at the hand of Mr. Buhman. They seek relief only for the future harm of prosecution. If there is no credible threat of such harm, their case is moot. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (“As the Supreme Court explained, ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” (alterations in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974))). In their prayer for relief, the Browns requested only a declaratory judgment and an injunction, plus attorney fees and costs. They did not ask for damages. The complaint’s “Nature of the Action” section likewise asked for declaratory and injunctive relief, but not damages. And paragraph 14 of the complaint asserted, without any mention of damages, that jurisdiction exists under 28 U.S.C. § 1343(a)(4) “because this action seeks
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equitable relief under 42 U.S.C. § 1983.” App., Vol. 1 at 19.19 Because the complaint
did not request damages, mootness depends on whether, following Mr. Buhman’s
19 Based on the residual clause in the complaint’s prayer for relief—which asks for “such other relief as [the district court] may deem just and proper”—the district court concluded the Browns had requested money damages. It relied on Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001), where we held the plaintiff could seek injunctive relief because (1) his complaint requested “such other relief as the Court deems just and equitable,” and (2) “[i]n the pretrial order, the district court list[ed], as an issue of law, ‘[t]he nature and extent of any equitable relief’ to which Mr. Frazier may be entitled.” 254 F.3d at 1251, 1255 (emphasis added) (last brackets in original). Analogizing to Frazier, the district court held the “just and proper” language in the Browns’ complaint, plus its reference to various past injuries they allegedly suffered as a result of Mr. Buhman’s conduct, were sufficient to plead damages. We think this analogy is too much of a stretch.
We have been careful to limit Frazier to its facts—in particular, the complaint’s reference to such other relief as the court deemed “just and equitable.” See Guiden v. Morrow, 92 F. App’x 663, 665-66 (10th Cir. 2004) (unpublished) (distinguishing Frazier); Romero v. City & Cty. of Denver Dep’t of Soc. Servs., 57 F. App’x 835, 838 (10th Cir. 2003) (unpublished) (same). Here, nothing in the prayer for relief’s residual clause indicated a request for damages. “Just” and “proper” do not refer to monetary relief in the same way “equitable” can refer to injunctive relief. In addition, in Frazier we were “guide[d]” by an Eighth Circuit case that read similar language broadly because the plaintiff there had sued the defendant in his official capacity and so his “relief need[ed] to be in [injunctive] form to be effective.” See id. at 1254-55 (quoting Andrus v. Arkansas, 197 F.3d 953, 956 (8th Cir. 1999)). As explained in footnote 10, supra, by suing the Defendants only in their official capacities, the Browns may obtain only injunctive relief, not damages, for their § 1983 claims. The logic of Andrus therefore precludes reading the Browns’ complaint to include a request for damages, as relief sought against Mr. Buhman in his official capacity would be effective only in injunctive form. Accord Emory v. United Air Lines, Inc., 720 F.3d 915, 921 n.10 (D.C. Cir. 2013) (“While it is true that Fed. R. Civ. P. 54(c) allows a court to grant relief not specifically sought, we cannot save [the plaintiffs’] claim by reading the complaint’s boilerplate prayer for ‘such other relief as [the Court] may deem just and proper’ as a request for monetary damages.” (quotation omitted) (first brackets added)).
In any event, the Browns waived any request for damages before entry of the final judgment from which Mr. Buhman appeals. App., Vol. 3 at 654, 666-68. And the Browns have not renewed any request for damages on appeal. We therefore do not consider retrospective relief when assessing mootness.
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announcement of the UCAO Policy, the district court had Article III jurisdiction to award prospective relief to the Browns. We conclude it did not.
b. The Browns Do Not Face a Credible Threat of Prosecution i. There Is No Reasonable Expectation that Mr. Buhman Will Violate the UCAO Policy
Mr. Buhman’s May 2012 declaration unveiled the UCAO Policy, under which the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse. Nothing in the record suggests the Browns fit, or in the future may fit, into either category. Indeed, Mr. Buhman affirmed in his declaration that the UCAO had “determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration.” App., Vol. 2 at 329. The district court found it undisputed that the UCAO “ha[d] found no evidence of any crime by the Browns.” Brown, 947 F. Supp. 2d at 1179. And Mr. Buhman declared that his office had decided not to file charges against the Browns.
Mr. Buhman further declared under penalty of perjury that the Browns will not be prosecuted unless they engage in criminal conduct beyond that proscribed by the Statute. To find this “voluntary cessation is a sham for continuing possibly unlawful conduct,” Rio Grande Silvery Minnow, 601 F.3d at 1118 (quotation omitted), we would have to conclude the highest-ranking law enforcement official in Utah County had engaged in deliberate misrepresentation to the court.
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We see no basis for this conclusion. Close scrutiny of the relevant facts does not suggest Mr. Buhman is attempting to deceive the court. See Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 56 (1st Cir. 2013) (“We understand [the voluntary cessation] exception to mootness to be highly sensitive to the facts of a given case.”).
Mr. Buhman declared that during his tenure as County Attorney, the UCAO had never before received a police report alleging violations of the Statute unconnected to a collateral crime such as fraud or abuse. That suggests why the UCAO in 2010 had no formal policy regarding polygamy prosecutions and why “no one in the office had any recollection of the Utah County Attorney’s Office ever prosecuting anyone for the practice of bigamy except, however, for the occasional bigamy case for marriage fraud or for failure to obtain a divorce prior to remarrying.” App., Vol. 2 at 328.20
Even assuming the UCAO Policy was a reaction to the Browns’ suit, that does not necessarily make it suspect. A government official’s decision to adopt a policy in the context of litigation may actually make it more likely the policy will be followed, especially with respect to the plaintiffs in that particular case. See Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir. 2014) (“[W]e have indicated that mootness is more likely if . . . the case in question was the catalyst for the agency’s adoption of the new policy
20 According to Ms. Jex, during Mr. Buhman’s tenure the UCAO filed a bigamy charge against one defendant for which her Internet search failed to reveal additional charges. This is consistent with Mr. Buhman’s statement that the UCAO filed an “occasional” bigamy charge against defendants who had committed marriage fraud or failed to obtain a divorce before remarrying.
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. . . .” (quotation and brackets omitted)); Fed’n of Advert. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 931 (7th Cir. 2003) (“[T]he City candidly admits that [a recent court] decision persuaded it to repeal the ordinance because of the risk of losing in the litigation. We find that the City’s actions over the course of this litigation do not give rise to an expectation that it will reenact the challenged ordinance.”).
We see no basis to question Mr. Buhman’s bona fides after he publicly adopted under penalty of perjury and submitted to the federal court the same prosecution policy that the chief law enforcement officer of the state had previously adopted. The risk that Mr. Buhman will revoke or ignore the UCAO Policy under these circumstances is minimal at best, and certainly not enough to sustain a live case or controversy. See Moore v. Thieret, 862 F.2d 148, 150 (7th Cir. 1988) (“If the likelihood [of recurrence] is small (it is never zero), the case is moot.”).
Nothing in the record suggests Mr. Buhman has attempted “to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc., 531 U.S. at 284 n.1 (emphasis added). Instead, the record shows the UCAO has adopted, and intends to abide by, a policy under which the Browns face no threat of prosecution. Any prospective relief the district court might have awarded in the face of Mr. Buhman’s commitment would therefore have virtually no effect “in the real world.” Wyoming, 414 F.3d at 1212. Mr. Buhman’s declaration deprived the parties of a “concrete interest,” even a small one, “in the outcome of th[is] litigation.” Chafin, 133 S. Ct. at 1023.
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If Mr. Buhman had announced only that his office had decided not to prosecute the Browns, the question of mootness would be closer. But he did much more than that. First, he announced an office policy that would prevent prosecution of the Browns and others similarly situated in the future. Second, the UCAO Policy is essentially the same as the AG Policy, which the district court considered sufficient to deny the Browns standing to sue the Governor and the Attorney General. Third, the UCAO Policy and the decision not to prosecute the Browns are contained in a declaration that was signed under penalty of perjury and submitted to the federal district court. Fourth, violation of the declaration would expose Mr. Buhman to prosecution for perjury or contempt. See 18 U.S.C. § 1621(2) (providing that “[w]hoever . . . in any declaration . . . under penalty of perjury . . . willfully subscribes as true any material matter which he does not believe to be true . . . is guilty of perjury”); 28 U.S.C. § 1746(2) (permitting a declaration made under penalty of perjury to substitute for a sworn declaration, oath, or affidavit); 18 U.S.C. § 401(2) (empowering a federal court to “punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [m]isbehavior of any of its officers in their official transactions”). Under these circumstances, the Browns face no credible threat of prosecution from the Utah County Attorney.21
21 In the absence of a credible threat of prosecution, any allegation of a subjective chilling effect on the exercise of First Amendment rights would not be sufficient to overcome mootness. See Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 108889 (10th Cir. 2006) (en banc).
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ii. The Browns’ Move to Nevada Supports Finding Mootness Mr. Buhman’s May 12, 2012 declaration removed any credible threat of prosecution and mooted this case while it was pending in district court. Our mootness analysis could stop here. But apart from the foregoing, the Browns’ case also became moot because their move to Nevada, their successive declarations, and the passage of time eventually eliminated Mr. Buhman’s authority under Utah law to prosecute the Browns. The Browns left Utah for Nevada in January 2011. They alleged in their complaint, filed in July 2011, that they could not “fully perform their religious practices outside of Utah and must return to Utah to engage in certain religious practices.” App., Vol. 1 at 22. They “expect[ed] to move back to Utah.” Id. According to an October 2011 declaration from Kody Brown, the Browns “travel[ed] back and forth to Utah to participate in religious and family activities.” Id. at 106. In another October 2011 declaration, Janelle Brown said that if the Statute were struck down, the Browns “would feel free to finally return to Utah and would certainly resume [their] open participation in [their] religious community.” Id. at 114. The district court wrote in its February 3, 2012 order on Defendants’ motion to dismiss that “[o]nce the threat of prosecution is lifted, . . . [the Browns] expect to relocate to the State of Utah.” App., Vol. 2 at 247. But circumstances changed. Mr. Brown subsequently told the district court in a July 2012 declaration—submitted two months after Mr. Buhman stated under oath that the UCAO had closed its case against the Browns—that “[w]e have decided to stay in Nevada in the foreseeable future to avoid uprooting our children again and subjecting
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them to the continued public recriminations made under the Utah law.” Id. at 487. The
Browns have “continued ties to [Utah], including family and religious connections,” Mr.
Brown said, but “[we] have settled . . . in Nevada where our children now go to school
and where we are in the process of finalizing the purchase of new homes.” Id. Mr.
Brown’s declaration said “[t]he decision not to return to Utah was a difficult one for [his]
family.” Id. There is nothing further in the record that suggests the Browns have
reversed this decision. As the years have passed, these developments have made it
increasingly difficult to conclude the Browns now face a credible threat of prosecution for past or future conduct even if Mr. Buhman had not adopted the UCAO Policy.22
First, as to the Browns’ past conduct, Utah law provides “a prosecution for . . . a
felony . . . shall be commenced within four years after it is committed.” Utah Code Ann.
§ 76-1-302(1)(a); see also id. § 76-7-101(2) (defining bigamy as a third-degree felony).
The Browns have not lived in Utah for more than five years, and their post-2011 conduct
in Nevada cannot subject them to liability in Utah. See Nevares v. M.L.S., 345 P.3d 719,
727 (Utah 2015) (“[U]nless a statute gives a clear indication of an extraterritorial
22 After oral argument, the Browns submitted a supplemental filing identifying the portions of the record in which they “indicated a desire or intention to return to Utah if the threat of prosecution were negated.” Doc. 10337144 at 2. The Browns cite to the complaint, Janelle Brown’s and Kody Brown’s declarations, and the district court’s February 3, 2012 order granting in part Defendants’ motion to dismiss for lack of standing. These documents do not suggest the Browns have any current intention to return to Utah. Indeed, we rely on them—in particular the declarations—in concluding the Browns have settled in Nevada for the “foreseeable future.” App., Vol. 2 at 487. Moreover, as noted above, whether there is a credible threat to prosecute the Browns under the Statute turns on an objective assessment of the record and not the Browns’ subjective perceptions.
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application, it has none.” (quotation omitted)). The record does not reveal whether the Browns have traveled to Utah since October 2011, when Kody Brown signed his first declaration, or whether they “purported to marry” or “cohabited” there if they did. Nothing in the record indicates the Browns have violated the Statute in Utah within the four-year limitations period. It is therefore speculative at best that Mr. Buhman could prosecute the Browns for past conduct.
Second, Mr. Buhman will likely also be unable to prosecute the Browns for future conduct. In Dias, we held the plaintiffs lacked standing to challenge a Denver ordinance banning pit bull ownership because “none of the plaintiffs [then] reside[d] in Denver and none ha[d] alleged an intent to return.” 567 F.3d at 1176. They therefore did not face “a credible threat of future prosecution under the Ordinance.” Id. The Browns appear to be in the same position. Although the Browns may wish to move back to Utah some day, and although their declarations do not entirely foreclose the possibility that they will do so, they have announced their intention to remain in Nevada for “the foreseeable future.”23 Unless and until the Browns return to Utah, Mr. Buhman could not, based on
23 This statement appears in Kody Brown’s July 2012 declaration. Janelle Brown’s October 2011 declaration was somewhat equivocal on this point, indicating the Browns would “feel free” to return to Utah if the Statute were invalidated. But Kody Brown’s declaration, submitted nine months later, is more definitive. See Lujan, 504 U.S. at 564 (holding affidavits expressing intent to return to Egypt and Sri Lanka to observe threatened species were “simply not enough” to confer standing—“[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require” (emphasis in original)).
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the law and the record, prosecute them even if he wished to do so. For this independent reason, the Browns face no credible threat of prosecution.
c. The Browns’ Arguments Against Mootness Are Not Persuasive The Browns insist we should discredit Mr. Buhman’s announcement of the UCAO Policy. They deny his “allegedly wrongful behavior could not reasonably be expected to recur.” Already, 133 S. Ct. at 727 (quotation omitted). We have addressed and rejected this argument in the preceding analysis. We further address the Browns’ specific arguments: that (1) our analysis in Winsness governs this appeal, (2) the possibility that Mr. Buhman’s successor could ignore the UCAO Policy defeats mootness, (3) Mr. Buhman’s failure to renounce the Statute’s constitutionality makes prosecution of the Browns more than speculative, and (4) Mr. Buhman’s tactical motivation for adopting the UCAO Policy renders his pledge to abide by that policy not credible. None of these arguments is persuasive.
i. The So-Called “Winsness Factors” Are Not Controlling Doctrine First, the Browns contend we should evaluate mootness under the three “Winsness factors” they say we have employed in similar cases. Suppl. Aplee. Br. at 17. The district court “f[ound] these factors helpful and . . . rel[ied] on them” to analyze mootness. App., Vol. 2 at 491. In Winsness, the police cited Mr. Winsness for burning a symbol onto an American flag and hanging it from his garage. Winsness, 433 F.3d at 729. An assistant district attorney charged Mr. Winsness with flag abuse but dismissed the charges before trial. Id. at 730. Mr. Winsness then filed a § 1983 suit in federal court, seeking to enjoin
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enforcement of Utah’s flag-abuse statute, arguing it violated the First and Fourteenth Amendments. Id. In an affidavit attached to his motion to dismiss, the Salt Lake County District Attorney declared that the “‘enforceability of the Utah flag abuse statute [wa]s doubtful’ in light of Texas v. Johnson[, 491 U.S. 397 (1989)]” and that “‘[u]nless and until the constitutional doubts about the Utah statute are eliminated through a constitutional amendment or a new decision of the United States Supreme Court, [he had] no intention of prosecuting . . . anyone . . . under the statute.’” Id. at 731 (third brackets in original). The assistant district attorney also declared that “‘[u]nless the law changes, Mr. Winsness need have no fear of prosecution if he desecrates or alters a flag as a form of political expression.’” Id. The district court granted the state’s motion to dismiss, concluding the prosecutors’ affidavits eliminated any injury in fact. Id.
On appeal, we held Mr. Winsness lacked standing when he filed suit. Id. at 734. Alternatively, we also said the affidavits mooted the case. Id. at 736. “The veracity of the[] affidavits,” we said, “is bolstered both by the prosecutors’ actions, quickly repudiating the citation against Mr. Winsness, and by Texas v. Johnson, which gives the prosecutors good reason to avoid initiating potentially futile prosecutions.” Id.
One year later, in Mink, we considered a pre-enforcement constitutional challenge to Colorado’s criminal libel statute. 482 F.3d at 1248-49. Our analysis of whether that challenge was moot included a brief discussion of Winsness: “We found [the prosecutors’] assurances established mootness since the government (1) had quickly repudiated the action initially taken against Winsness, (2) its statements were made in sworn affidavits, and (3) it based its decision on controlling Supreme Court precedent,
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making future prosecutions unlikely.” Id. at 1256. We concluded these “Winsness factor[s]” also “cut against” finding a live case or controversy in Mr. Mink’s case. Id. at 1256-57.
The Browns argue we should analyze mootness in pre-enforcement cases by weighing the “Winsness factors.” As an initial matter, Winsness is factually distinguishable. Mr. Winsness, unlike the Browns, was actually charged under the statute he sought to challenge, making his injury substantially more concrete than the Browns’.
Moreover, Winsness did not purport to state a definitive test that would govern in every case. Rather, in explaining why “the threat of prosecution ha[d] been eliminated,” we pointed to the prosecutors’ affidavits and remarked that the veracity of those affidavits was “bolstered” by the three factors we later identified in Mink. Winsness, 433 F.3d at 736. The “Winsness factors” described some evidence supporting the prosecutors’ credibility, not a doctrinal test. Although our analysis in Mink drew upon these factors, we never held or even suggested they should control in future cases. And neither Winsness nor Mink foreclosed other factors from “bolstering” the veracity of a policy not to prosecute.
Winsness represents a fact-specific application of the general rule that voluntary cessation moots a case when “the allegedly wrongful behavior c[an]not reasonably be expected to recur.” Already, 133 S. Ct. at 727 (quotation omitted). The district court in this case erred when it limited its analysis to weighing the “Winsness factors” and ignored the broader lesson of Winsness and Mink: that evidence supporting the veracity of the
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decision and the policy not to prosecute is important to the mootness analysis. That evidence need not be limited to the “Winsness factors.”
ii. The Possibility that a Future County Attorney May Change the UCAO Policy Does Not Defeat Mootness
Second, the Browns argue they are not free from the threat of prosecution because the UCAO Policy “does not and cannot ‘bind the future actions or policies of successor Utah County attorneys.’” Suppl. Aplee. Br. at 18 (quotation omitted). The district court accepted this argument, basing its mootness holding in part on its belief that the UCAO Policy was simply “an exercise of prosecutorial discretion that could easily be reversed in the future by a successor Utah County Attorney.” App., Vol. 2 at 496.24
To argue that a county attorney cannot bind future county attorneys to his nonprosecution policy is unremarkable and unpersuasive. Of course a future county attorney could change the UCAO Policy, but that possibility does not breathe life into an otherwise moot case. If it did, federal courts would be free to exercise judicial review of any rarely used state statute based on the hypothetical that some unknown and yet-to-beelected local prosecutor someday may flout or change office policy and decide to enforce it. We are not aware of any Article III basis that would permit federal courts to do this.
For voluntary cessation to moot a case, we must be convinced that “the allegedly wrongful behavior could not reasonably be expected to recur,” Already, 133 S. Ct. at 727
24 This concern did not trouble the district court when it dismissed the Governor and the Attorney General from this case based on the AG Policy, which also cannot bind successive attorneys general.
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(emphasis added) (quotation omitted), not that there is no possibility of future enforcement. The latter showing would likely be impossible in most cases. See Rio Grande Silvery Minnow, 601 F.3d at 1117-18 (“We will not require some physical or logical impossibility that the challenged policy will be reenacted absent evidence that the voluntary cessation is a sham for continuing possibly unlawful conduct.” (quotation omitted)); Mink, 482 F.3d at 1255 (“[W]e have held the possibility of future enforcement need not be reduced to zero to defeat standing. It is not necessary for defendants to refute and eliminate all possible risk that the statute might be enforced to demonstrate a lack of a case or controversy.” (quotations and brackets omitted)); Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1525 (10th Cir. 1992) (“Defendants’ burden concerning the unlikelihood of recurrence is a heavy one, but it by no means requires proof approaching metaphysical certitude.”); see also Clarke v. United States, 915 F.2d 699, 702 (D.C. Cir. 1990) (“Of course we cannot say that the risk of an attempted prosecution is zero. . . . But zero risk is not the test.”); Moore, 862 F.2d at 150 (“If the likelihood [of recurrence] is small (it is never zero), the case is moot.”).
One of the plaintiffs in Winsness made a similar argument. He asserted the district court should retain jurisdiction over his § 1983 suit because “[the district attorney’s] political successors might repudiate [his] policy, or [the plaintiff] might be arrested elsewhere in the state, or police officers who have not been informed of [the district attorney’s] policy and have not been instructed not to enforce the statute might do so.” 433 F.3d at 733. We rejected this contention, explaining that “it is not necessary for
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defendants in such cases to refute and eliminate all possible risk that the statute might be enforced.” Id. The same logic applies in this case.
Although Mr. Buhman cannot control his successors and extend his nonprosecution pledge in perpetuity, there is no reasonable expectation the Browns will face prosecution. The small number of prior UCAO prosecutions—three in a ten-year period, at least two of which also involved charges for collateral crimes—reinforces this conclusion. The UCAO Policy is consistent with, not a departure from, what was apparently a longstanding de facto policy of non-prosecution. And it is consistent with the AG Policy. As a result, the prospect that a future Utah County Attorney will begin prosecuting defendants like the Browns is speculative and remote.
The district court erred by relying on Mr. Buhman’s inability to bind future county attorneys.
iii. Mr. Buhman’s Failure to Renounce the Statute’s Constitutionality Does Not Defeat Mootness
Third, the Browns insist—and the district court agreed—that we should not take the UCAO Policy at face value because Mr. Buhman “continues to maintain the [Statute’s] constitutionality and enforceability.” Suppl. Aplee. Br. at 18. This view, which merely repackages part of the Browns’ argument in favor of the “Winsness factors,” holds that a prosecutor’s promise not to bring charges is credible only if he believes enforcement would be unconstitutional. We have never adopted this position, and we decline to do so here.
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In Winsness and Mink, we credited the prosecutors’ acknowledgement that the charging statutes were unconstitutional as giving them “good reason to avoid initiating potentially futile prosecutions.” Winsness, 433 F.3d at 736; Mink, 482 F.3d at 1257; see also Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004) (“[W]e . . . hold[] that a case is moot when a state agency acknowledges that it will not enforce a statute because it is plainly unconstitutional, in spite of the failure of the legislature to remove the statute from the books.”). But contrary to the district court’s suggestion, we gave no indication such an acknowledgement is especially probative, much less a significant factor in holding a case moot.
A prosecutor’s belief a statute is constitutional does not provide much help in determining the risk of future prosecution. Nor does it render unreliable his or her statements to the court—signed under penalty of perjury—that he will not enforce it. See Rio Grande Silvery Minnow, 601 F.3d at 1118 n.17 (“Although the failure of a governmental agency to acknowledge the impropriety of its former, challenged course of conduct certainly is not an irrelevant factor in the voluntary-cessation analysis, it is not dispositive.”). Prosecutors can be committed to a non-prosecution policy for reasons unrelated to a statute’s constitutionality. See Am. Civil Liberties Union of Mass., 705 F.3d at 55 n.9 (“It is not a purpose of the [voluntary cessation] doctrine to require an admission from the defendant that the now ceased conduct was illegal. Mootness turns on future threats, not upon penance.” (quotation omitted)).
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Here, Mr. Buhman’s continued belief in the Statute’s constitutionality does not show he will disregard the statements he made to the district court under penalty of perjury.
iv. Mr. Buhman’s Motives for Announcing the UCAO Policy Do Not Defeat Mootness
Finally, the Browns argue there remains a live controversy because Mr. Buhman announced the UCAO Policy for tactical reasons to strip the district court of jurisdiction over the Browns’ claims. Unlike the district court, we are not persuaded.
Mr. Buhman may have been motivated to institute the UCAO Policy to end the Browns’ litigation. Nineteen months had passed between the UCAO’s receipt of the Lehi Police Department’s report in October 2010 and Mr. Buhman’s second declaration in May 2012. He submitted that declaration four months after the district court dismissed Mr. Herbert and Mr. Shurtleff on the ground that the AG Policy—which is materially identical to the UCAO Policy—deprived the Browns of standing to sue those defendants. But even if the UCAO Policy was tactical, this motive alone does not defeat mootness. The ultimate question is whether the UCAO Policy eliminates a credible threat of prosecution.
The Browns point out that we have said “[v]oluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Ind, 801 F.3d at 1214 (brackets in original) (quotation omitted). But this statement must be reconciled with the rule that the existence of a live case or controversy depends on whether “the allegedly wrongful
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behavior could . . . reasonably be expected to recur,” Already, 133 S. Ct. at 727 (quotation omitted)—not on whether a government official has acted out of tactical motives. See Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908, 915 (11th Cir. 2009) (“We are not concerned with [the defendant’s] motivation for changing its registration policy, but only with whether a justiciable controversy exists.”).
A prosecutor’s motives for ceasing allegedly unlawful behavior may be relevant to the credibility of his representation that the plaintiffs will not be prosecuted. When a prosecutor drops charges merely to be rid of a bothersome federal lawsuit, there may be reason to question whether the no-charge commitment is genuine. See McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“A presumption of good faith . . . cannot overcome a court’s wariness of applying mootness under protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” (emphasis added) (quotation omitted)). But if the allegedly unlawful conduct cannot “reasonably be expected to recur,” it does not matter that the prosecutor ruled out prosecution because he wished to prevent adjudication of the federal claim on the merits. Either a live controversy exists, or it does not. Federal courts may not exercise jurisdiction over a case simply because the defendant wished the suit to end when ceasing his or her allegedly unlawful conduct.
* * * * In sum, the Browns’ arguments that Buhman’s adoption of the UCAO Policy does not moot this case—(1) we must apply the “Winsness factors,” (2) his successor could change it, (3) he thinks the Statute is constitutional, and (4) he adopted it to end the
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lawsuit—do not withstand scrutiny. The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Mr. Buhman’s May 2012 declaration is credible. He declared under penalty of perjury that the Browns will not be prosecuted absent evidence of a collateral crime. And the dearth of prior UCAO prosecutions under the Statute—at least for bare violations unconnected to collateral crimes—indicates his position is not mere posturing. See Susan B. Anthony List, 134 S. Ct. at 2345 (“We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not chimerical.” (quotations omitted)); D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (“[A] plaintiff cannot show a real threat of prosecution in the face of assurances of non-prosecution from the government merely by pointing to a single past prosecution of a different person for different conduct.”).25
25 In addition, the district court questioned the sincerity of Mr. Buhman’s declaration because “[t]here is no evidence that the notice of the change in policy was given to the public generally or distributed within the county attorney’s office.” App., Vol. 2 at 492; see also id. at 494 (“The failure to give public notice of the change in policy, however, adds to the concern that the action was taken primarily for purposes of
Continued . . .
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This case lacks “clear showings of reluctant submission [by Mr. Buhman] and a
desire to return to the old ways.” Gessler, 770 F.3d at 908 (emphasis in original)
(quotation omitted). On the contrary, the record shows Mr. Buhman intends to follow the
terms of the UCAO Policy, including and especially with respect to the Browns. Fear
that Mr. Buhman intends to prosecute the Browns in the future would not be “objectively
justified.” Winsness, 433 F.3d at 732. Accordingly, “the issues presented are no longer
‘live’” and “the parties lack a legally cognizable interest in the outcome” of this case.
Chafin, 133 S. Ct. at 1023 (quotation omitted); see Tandy v. City of Wichita, 380 F.3d
1277, 1291 (10th Cir. 2004) (“Nothing in the record suggests that Wichita Transit intends
to resume its discontinued policies if this case is dismissed as moot. Under such
circumstances, it is absolutely clear the allegedly wrongful behavior could not reasonably
be expected to recur.” (quotation omitted)).
Mr. Buhman’s May 2012 declaration rendered the Browns’ case constitutionally moot.26
this litigation.”). We fail to see the relevance of this fact. Prosecutors do not generally advertise their enforcement policies to the public, and Mr. Buhman’s failure to do so in this case does not throw his credibility into doubt. Moreover, by filing his declaration and the UCAO Policy with the district court, the Policy became a public document.
The district court’s concern that Mr. Buhman has “not repudiate[d] [sic] that punishment may be enhanced if a defendant were convicted under the [Statute] and another offense” is similarly misplaced. Id. at 494. The record indicates the UCAO has no evidence that the Browns have committed other crimes. Accordingly, the hypothetical possibility that they might one day be prosecuted for a collateral crime does not bear on (1) the credibility of Mr. Buhman’s declaration or (2) the existence of a live controversy.
26 Because the district court lacked Article III jurisdiction to resolve the Browns’ claims, we need not decide whether it abused its discretion by finding those claims were
Continued . . .
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2. Vacatur “If the district court lacked jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19 (quotation omitted). “When a case becomes moot prior to final adjudication, the district court was without jurisdiction to enter the judgment, and vacatur and dismissal of the judgment is automatic.” Id. (quotation, emphasis, and brackets omitted).
“It is fundamental, of course, that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore dismissal . . . must be without prejudice.” Abernathy v. Wandes, 713 F.3d 538, 558 (10th Cir. 2013) (quoting Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir. 1973)).
The proper disposition of this appeal, therefore, is to remand to the district court with instructions to vacate its judgment in favor of the Browns and dismiss this suit without prejudice.27
not prudentially moot. See Jordan, 654 F.3d at 1023 n.14 (“[W]e ordinarily review a district court’s prudential mootness determination for an abuse of discretion.” (emphasis omitted)).
27 As explained above, the Browns’ move to Nevada eventually also rendered this case moot. Whether or not this basis for mootness took effect before commencement of this appeal, Mr. Buhman’s implementation of the UCAO Policy was independently sufficient to extinguish any live case or controversy as of May 2012, a year and a half before the district court granted summary judgment to the Browns and over two years before entry of final judgment. Because this case became moot “prior to final adjudication,” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19, vacatur and dismissal without prejudice are appropriate.
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IV. CONCLUSION Assuming the Browns had standing to file suit in July 2011, this case became moot when Mr. Buhman announced the UCAO Policy in May 2012. That policy eliminated any credible threat that the Browns will be prosecuted. We therefore remand to the district court with instructions to vacate its judgment and dismiss this suit without prejudice.
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 Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 1 of 12
APPEAL,CLOSED,SUP_CT
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:11−cv−00652−CW

Brown et al v. Herbert et al Assigned to: Judge Clark Waddoups Case in other court: Supreme Court, 16−00333 Cause: 28:1983 Civil Rights
Plaintiff
Kody Brown

Date Filed: 07/13/2011 Date Terminated: 03/09/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jonathan Turley GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 2000 H ST NW WASHINGTON, DC 22101 (202)994−7001 Email: jturley@law.gwu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Meri Brown

represented by Jonathan Turley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Janelle Brown

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Plaintiff Christine Brown

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Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 2 of 12

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Plaintiff Robyn Sullivan

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Adam Alba (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Gary R. Herbert in his official capacity as Governor of Utah TERMINATED: 02/03/2012
Defendant Mark Shurtleff in his official capacity as Attorney General of Utah TERMINATED: 02/03/2012
Defendant Jeffrey R. Buhman in his official capacity as County Attorney for Utah County

represented by Jerrold S. Jensen UTAH ATTORNEY GENERAL'S OFFICE (160−5−140812) 160 E 300 S PO BOX 140812 SALT LAKE CITY, UT 84114−0812 (801)366−0350 Email: jerroldjensen@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Thomas D. Roberts (See above for address) ATTORNEY TO BE NOTICED
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Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 3 of 12

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Thomas D. Roberts (See above for address)

Interested Party United States of America

represented by Jeannette F. Swent US ATTORNEY'S OFFICE (UT) SALT LAKE CITY, UT 00000 (801)524−5682 Email: Jeannette.Swent@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan B. Parker US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 (202)514−4336 Email: ryan.parker@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/13/2011
07/13/2011
07/22/2011
07/29/2011 07/29/2011 07/29/2011 09/02/2011

# Docket Text
1 COMPLAINT against Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff (Filing fee $ 350, receipt number 4681045689) (Electronic document provided on disc. Original file stamped and signed document permanently retained), filed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown. (Attachments: # 1 Civil Cover Sheet) Assigned to Judge Clark Waddoups (rks) (Entered: 07/13/2011)
2 MOTION for Admission Pro Hac Vice of Jonathan Turley, Registration fee $ 15, receipt number 4681045690, Fee Status: Paid. filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Attachments: # 1 Exhibit A − Application, # 2 Exhibit B − Proposed Order, # 3 Exhibit C − CM/ECF Registration)(rks) (Entered: 07/13/2011)
3 ORDER granting 2 Motion for Admission Pro Hac Vice of Jonathan Turley for Christine Brown,Jonathan Turley for Janelle Brown,Jonathan Turley for Kody Brown,Jonathan Turley for Meri Brown,Jonathan Turley for Robyn Sullivan. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 07/21/2011. (asp) (Entered: 07/22/2011)
4 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Jeffrey R. Buhman served on 7/15/2011, answer due 8/5/2011. (Turley, Jonathan) (Entered: 07/29/2011)
5 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Gary R. Herbert served on 7/18/2011, answer due 8/8/2011. (Turley, Jonathan) (Entered: 07/29/2011)
6 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Mark Shurtleff served on 7/18/2011, answer due 8/8/2011. (Turley, Jonathan) (Entered: 07/29/2011)
7 MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Jensen, Jerrold) (Entered: 09/02/2011)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 4 of 12

09/02/2011
09/22/2011 09/27/2011
09/29/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/26/2011 10/28/2011 10/31/2011 10/31/2011 11/01/2011

8 MEMORANDUM in Support re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Affidavit Declaration of Jeffrey R. Buhman, Utah County Attorney, # 2 Affidavit Declaration of Mark L. Shurtleff Utah Attorney General)(Jensen, Jerrold) (Entered: 09/02/2011)
9 First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion, filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 09/22/2011)
10 ORDER GRANTING EXTENSION OF TIME−granting 9 Motion for Extension of Time to File Response/Reply re 9 First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion,First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion. Responses due by 10/17/2011. Signed by Judge Clark Waddoups on 9/26/11. (jmr) (Entered: 09/27/2011)
11 NOTICE of Appearance by Thomas D. Roberts on behalf of Gary R. Herbert, Mark Shurtleff (Roberts, Thomas) (Entered: 09/29/2011)
12 Plaintiff's MEMORANDUM in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)
13 AFFIDAVIT/DECLARATION of Kody Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)
14 AFFIDAVIT/DECLARATION of Meri Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)
15 AFFIDAVIT/DECLARATION of Janelle Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)
16 NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 03:30 PM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 10/26/2011)
17 ORDER re 16 Notice of Hearing on Motion. See order for details. Signed by Judge Clark Waddoups on 10/28/11. (jmr) (Entered: 10/28/2011)
18 AMENDED NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 09:00 AM in Room 102 before Judge Clark Waddoups. Note change in time, date remains the same. (jwt) (Entered: 10/31/2011)
19 REPLY to Response to Motion re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Jensen, Jerrold) (Entered: 10/31/2011)
20 DOCKET TEXT ORDER re 7 MOTION to Dismiss for Lack of Standing filed by Jeffrey R. Buhman, Mark Shurtleff, Gary R. Herbert. Upon review of the memoranda submitted in support and in opposition to the Defendants' motion to dismiss for lack of standing, the court observes that all parties have relied upon facts to support their arguments for which they have not yet offered supporting evidence. If the parties intend to rely upon disputed facts to support their motion, both sides should be prepared to present evidence to support such facts at the hearing set for December 16, 2011. In particular, Plaintiffs should be prepared to substantiate their standing through evidence of the Defendants' investigations and other allegedly injurious actions. The Defendants should be prepared to offer rebuttal evidence and any additional evidence that would defeat the Plaintiffs' claim of standing. Signed by Judge Clark Waddoups on 11/1/11. (No attached document) (jwt) (Entered: 11/01/2011)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 5 of 12

11/29/2011 12/09/2011 12/12/2011 12/13/2011 12/13/2011 12/16/2011
12/16/2011 12/16/2011 12/19/2011
01/11/2012 02/03/2012
02/06/2012 02/17/2012 02/21/2012 02/21/2012

21 AMENDED NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 08:30 AM in Room 102 before Judge Clark Waddoups. Note change in time, date remains the same. (jwt) (Entered: 11/29/2011)
22 RESPONSE TO ORDER TO SHOW CAUSE filed by Gary R. Herbert, Mark Shurtleff. (Roberts, Thomas) (Entered: 12/09/2011)
23 RESPONSE TO ORDER TO SHOW CAUSE filed by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 12/12/2011)
24 ERRATA to 23 Response to Order to Show Cause filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan . (Turley, Jonathan) (Entered: 12/13/2011)
25 Plaintiff's RESPONSE to Order Docket #20 filed by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Attachments: # 1 Exhibit David Tenzer Declaration, # 2 Exhibit Michael Maguire Declaration)(Turley, Jonathan) (Entered: 12/13/2011)
26 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 12/16/2011 re 7 MOTION to Dismiss for Lack of Standing filed by Jeffrey R. Buhman, Mark Shurtleff, Gary R. Herbert. The court hears argument and takes the matter under submission. Attorney for Plaintiff: Jonathan Turley, Adam Alba, Attorney for Defendant: Jerrold Jensen, Thomas Roberts, Amanda Jex. Court Reporter: Karen Murakami. (jwt) (Entered: 12/16/2011)
27 Please disregard See 28 −NOTICE of SUPPLEMENTAL AUTHORITY by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Turley, Jonathan) Modified on 12/19/2011−Per call from counsel's office re−filed as 28. (jmr). (Entered: 12/16/2011)
28 NOTICE of Supplemental Material by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan re 12 Memorandum in Opposition to Motion (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Turley, Jonathan) (Entered: 12/16/2011)
29 AFFIDAVIT/DECLARATION of Amanda Jex in Support re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H)(Jensen, Jerrold) (Entered: 12/19/2011)
30 NOTICE of SUPPLEMENTAL AUTHORITY by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan (Attachments: # 1 Supplement) (Turley, Jonathan) (Entered: 01/11/2012)
31 MEMORANDUM DECISION and Order−granting in part and denying in part 7 Motion to Dismiss. Defendants motion as to Defendants Gary R. Herbert, in his official capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as Attorney General of Utah, is GRANTED. These Defendants are dismissed. Defendants motion with regard to Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County, is DENIED. Signed by Judge Clark Waddoups on 2/3/12. (jmr) (Entered: 02/03/2012)
32 NOTICE OF TRANSMITTAL that Notice of Claim sent. (jmr) (Entered: 02/06/2012)
33 ANSWER to 1 Complaint, filed by Jeffrey R. Buhman.(Jensen, Jerrold) (Entered: 02/17/2012)
34 NOTICE OF ADR, e−mailed or mailed to Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan, Defendant Jeffrey R. Buhman. (jmr) (Entered: 02/21/2012)
35 NOTICE FROM THE COURT re: Initial Scheduling The court's IPT Clerk will now set the case for the Initial Pretrial Scheduling Conference (jmr) (Entered: 02/21/2012)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 6 of 12

03/06/2012 03/07/2012 03/08/2012
03/13/2012 03/14/2012

36 MOTION for Admission Pro Hac Vice of Ryan Parker (no registration fee required) filed by Interested Party United States of America. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration, # 3 Text of Proposed Order)(Swent, Jeannette) (Entered: 03/06/2012)
37 MOTION for Admission Pro Hac Vice of Ryan Parker (no registration fee required) filed by Interested Party United States of America. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration, # 3 Text of Proposed Order)(Swent, Jeannette) (Entered: 03/07/2012)
38 ORDER granting 36 Motion for Admission Pro Hac Vice of Ryan B. Parker for United States of America. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov ; granting 37 Motion for Admission Pro Hac Vice of Ryan B. Parker for United States of America. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 3/8/12. (jmr) (Entered: 03/08/2012)
39 NOTICE of Acknowledgment of Constitutional Challenge to an Act of Congress by United States of America (Parker, Ryan) (Entered: 03/13/2012)
40 NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by Stephanie Schaerrer) The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 30 days before the Initial Pretrial Conference hearing date.

NOTICE TO COUNSEL, The Court may enter a scheduling order and vacate the hearing if counsel (a) file a stipulated Attorneys Planning Meeting Report; and (b) e−mail a Proposed Scheduling Order to ipt@utd.uscourts.gov 30 days before the scheduled hearing. See instructions at http://www.utd.uscourts.gov/documents/ipt.html

04/16/2012

Initial Pretrial Conference set for 5/16/2012 11:30 AM in Room 477 before Magistrate Judge David Nuffer. (ss) (Entered: 03/14/2012)
41 NOTICE REMINDER of Attorneys' Planning Meeting Report due five days from receipt of this notice. This is a reminder of the notice filed 03/14/16 40 NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by Stephanie Schaerrer) The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 30 days before the Initial Pretrial Conference hearing date.

NOTICE TO COUNSEL, The Court may enter a scheduling order and vacate the hearing if counsel (a) file a stipulated Attorneys Planning Meeting Report; and (b) e−mail a Proposed Scheduling Order to ipt@utd.uscourts.gov 30 days before the scheduled hearing. See instructions at http://www.utd.uscourts.gov/documents/ipt.html

05/04/2012 05/04/2012

Initial Pretrial Conference set for 5/16/2012 11:30 AM in Room 477 before Magistrate Judge David Nuffer. (ss) (tab) (Entered: 04/16/2012)
42 Plaintiff's MOTION for Scheduling Order filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 05/04/2012)
43 Joint MOTION for Scheduling Order filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 05/04/2012)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 7 of 12

05/04/2012
05/10/2012 05/10/2012
05/31/2012 05/31/2012 05/31/2012 05/31/2012 05/31/2012 05/31/2012 06/01/2012 06/08/2012

44 DOCKET TEXT ORDER REFERRING CASE to Magistrate Judge Brooke C. Wells under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. Motions referred to Brooke C. Wells. Signed by Judge Clark Waddoups on 5/4/2012. No document attached.(saw) (Entered: 05/04/2012)
NOTICE VACATING Initial Pretrial Conference HEARING set for 05/16/12 before Judge Furse (Notice generated by Theresa Brown). Counsel are directed to notify the court when scheduling is required. (tab) (Entered: 05/10/2012)
45 DOCKET TEXT ORDER No attached document. Initial Pretrial Conference is VACATED. Motion deadline is 5/31/12, responsive memo due 6/29/12 and reply due 7/16/12. Counsel are to notify court after resolution of dispositive motions for scheduling. Signed by Magistrate Judge Evelyn J. Furse on 05/10/12. (tab) (Entered: 05/10/2012)
46 MOTION to Dismiss for Mootness filed by Defendant Jeffrey R. Buhman. (Jensen, Jerrold) (Entered: 05/31/2012)
47 MEMORANDUM in Support re 46 MOTION to Dismiss for Mootness filed by Defendant Jeffrey R. Buhman. (Attachments: # 1 Affidavit Declaration)(Jensen, Jerrold) (Entered: 05/31/2012)
48 MOTION for Leave to File Excess Pages filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. Motions referred to Brooke C. Wells.(Turley, Jonathan) (Entered: 05/31/2012)
49 MOTION for Summary Judgment filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 05/31/2012)
50 MEMORANDUM in Support re 49 MOTION for Summary Judgment filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 05/31/2012)
51 Motions No Longer Referred: 48 MOTION for Leave to File Excess Pages (saw) (Entered: 05/31/2012)
52 ORDER granting 48 Motion for Leave to File Excess Pages. Signed by Judge Clark Waddoups on 5/31/12. (jmr) (Entered: 06/01/2012)
53 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Transcript of Hearing on Motion to Dismiss held on December 16, 2011 before Judge Clark Waddoups. Court Reporter/Transcriber Karen Murakami, CSR, RPR, Telephone number 801−328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

06/29/2012 06/29/2012 06/29/2012

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/29/2012. Redacted Transcript Deadline set for 7/9/2012. Release of Transcript Restriction set for 9/6/2012. (jmr) Modified by removing restricted text on 9/6/2012 (mlp). (Entered: 06/08/2012)
55 Cross MOTION for Summary Judgment filed by Defendant Jeffrey R. Buhman. (Jensen, Jerrold) (Entered: 06/29/2012)
56 Oral MEMORANDUM in Support re 55 Cross MOTION for Summary Judgment filed by Defendant Jeffrey R. Buhman. (Jensen, Jerrold) (Entered: 06/29/2012)
57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion filed by Defendant Jeffrey R. Buhman. Motions referred to Brooke C. Wells.(Jensen, Jerrold) (Entered: 06/29/2012)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 8 of 12

06/29/2012 06/29/2012 06/29/2012 06/29/2012 07/02/2012 07/02/2012 07/02/2012
07/03/2012 07/13/2012 07/23/2012 07/25/2012 08/17/2012

58 MEMORANDUM in Support re 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion filed by Defendant Jeffrey R. Buhman. (Attachments: # 1 Text of Proposed Order Proposed Order)(Jensen, Jerrold) (Entered: 06/29/2012)
59 RESPONSE to Motion re 46 MOTION to Dismiss for Mootness filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 06/29/2012)
60 MOTION to Strike 55 Cross MOTION for Summary Judgment , 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion , 56 Memorandum in Support of Motion, 58 Memorandum in Support of Motion, filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. Motions referred to Brooke C. Wells.(Turley, Jonathan) (Entered: 06/29/2012)
61 MEMORANDUM in Support re 60 MOTION to Strike 55 Cross MOTION for Summary Judgment , 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion , 56 Memorandum in Support of Motion, 58 Memorandum in Sup filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 06/29/2012)
62 Motions No Longer Referred: 60 MOTION to Strike 55 Cross MOTION for Summary Judgment , 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion , 56 Memorandum in Support of Motion, 58 Memorandum in Sup, 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion (mjw) (Entered: 07/02/2012)
63 MEMORANDUM in Opposition re 57 MOTION to Stay re 49 MOTION for Summary Judgment , 50 Memorandum in Support of Motion filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 07/02/2012)
64 ORDER re 49 MOTION for Summary Judgment filed by Christine Brown, Meri Brown, Janelle Brown, Kody Brown, Robyn Sullivan, 55 Cross MOTION for Summary Judgment filed by Jeffrey R. Buhman. Further pleadings in response to, or opposition to these Motions will not be required pending this Courts determination of whether or not it has jurisdiction. See order for details. Signed by Judge Clark Waddoups on 7/2/12. (jmr) (Entered: 07/02/2012)
65 NOTICE OF HEARING ON MOTION re: 46 MOTION to Dismiss for Mootness : (Notice generated by jwt) Motion Hearing set for 7/25/2012 11:00 AM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 07/03/2012)
66 REPLY to Response to Motion re 46 MOTION to Dismiss for Mootness filed by Defendant Jeffrey R. Buhman. (Jensen, Jerrold) (Entered: 07/13/2012)
67 AFFIDAVIT/DECLARATION of Kody Brown in Opposition re 46 MOTION to Dismiss for Mootness filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 07/23/2012)
68 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 7/25/2012 re 46 MOTION to Dismiss for Mootness filed by Jeffrey R. Buhman. The court hears argument and takes the matter under submission. Attorney for Plaintiff: Jonathan Turley, Adam Alba, Attorney for Defendant: Jerrold Jensen, Thomas Roberts. Court Reporter: Laura Robinson. (jwt) (Entered: 07/25/2012)
69 MEMORANDUM DECISION and Order−denying 46 Motion to Dismiss−For the reasons stated in the Order, the court hereby DENIES Defendant Buhmans motion to dismiss on the grounds of mootness. (Dkt. No. 46). On July 2, 2012, the court issued a stay on further proceedings on Plaintiffs motion for summary judgment and Defendants cross−motion for summary judgment. (Dkt. No. 64). The stay is now LIFTED. Plaintiffs may, in their discretion, file a reply memorandum to Defendants memorandum opposing Plaintiffs motion for summary judgment on or before August 31, 2012. Plaintiffs should also file a memorandum opposing Defendants cross−motion for summary judgment on or before September 14, 2012. Defendant may then, at his discretion, file a reply memorandum on or before September 28, 2012. Signed by Judge Clark Waddoups on 8/17/12. (jmr) (Entered: 08/17/2012)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 9 of 12

08/20/2012 08/31/2012 09/14/2012 09/28/2012 01/17/2013
02/08/2013

70 NOTICE OF HEARING ON MOTION re: 55 Cross MOTION for Summary Judgment , 49 MOTION for Summary Judgment : (Notice generated by jwt) Motion Hearing set for 1/17/2013 03:30 PM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 08/20/2012)
71 MEMORANDUM in Support re 49 MOTION for Summary Judgment filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 08/31/2012)
72 MEMORANDUM in Opposition re 55 Cross MOTION for Summary Judgment filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 09/14/2012)
73 REPLY to Response to Motion re 55 Cross MOTION for Summary Judgment filed by Defendant Jeffrey R. Buhman. (Attachments: # 1 Exhibit Exhibit)(Jensen, Jerrold) (Entered: 09/28/2012)
74 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 1/17/2013 re 49 MOTION for Summary Judgment filed by Christine Brown, Meri Brown, Janelle Brown, Kody Brown, Robyn Sullivan, 55 Cross MOTION for Summary Judgment filed by Jeffrey R. Buhman. The court hears argument and takes the matter under submission. Attorney for Plaintiff: Jonathan Turley, Adam Alba, Attorney for Defendant: Jerrod Jensen, Thomas Roberts. Court Reporter: Karen Murakami. (jwt) (Entered: 01/17/2013)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions for Summary Judgment held on January 17, 2013 before Judge CLARK WADDOUPS. Court Reporter/Transcriber Karen Murakami, Telephone number 801−328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

03/26/2013 12/13/2013 12/17/2013
12/20/2013 12/20/2013

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/1/2013. Redacted Transcript Deadline set for 3/11/2013. Release of Transcript Restriction set for 5/9/2013. (asp) Modified by removing restricted text on 5/9/2013 (mlp). (Entered: 02/08/2013)
77 NOTICE of New Authority by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan (Turley, Jonathan) (Entered: 03/26/2013)
78 MEMORANDUM DECISION granting in part 49 Motion for Summary Judgment ; denying 55 Motion for Summary Judgment ; finding as moot 60 Motion to Strike. Signed by Judge Clark Waddoups on 12/13/13. See order for details(rks) (Entered: 12/13/2013)
79 CLERK'S JUDGMENT−IS ORDERED AND ADJUDGED that judgment be entered as follows: Utah Code Ann. 76−7−101 (2013) is facially unconstitutional. The phrase "or cohabits with another person" is stricken as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and is without a rational basis under the Due Process Clause of the Fourteenth Amendment. Further, the statute is susceptible to a narrowing construction of the terms "marry" and purports to marry" to remedy the constitutional infirmity of the remainder of the statute. Signed by Louise S. York. Case Closed. Magistrate Judge Brooke C. Wells no longer assigned to case (jmr) Modified on 12/20/2013−Case was closed in error. (jmr). (Entered: 12/17/2013)
80 Modification of Docket: Error: Case Closed in error. Correction: Case will be re−opened re 79 Clerk's Judgment. (jmr) (Entered: 12/20/2013)
81 ORDER to Vacate Judgment− re 79 Clerk's Judgment. The judgment of the Clerk of Court (Dkt. No. 79) is hereby vacated as having been entered on the docket without taking into consideration that there is a pending issue to be resolved. Signed by Judge

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 10 of 12

12/23/2013 01/02/2014 01/17/2014
01/27/2014 01/30/2014 02/10/2014 02/10/2014 02/12/2014 08/27/2014
09/10/2014 09/18/2014 09/19/2014 09/24/2014 09/24/2014

Clark Waddoups on 12/20/13. (jmr) (Entered: 12/20/2013)
82 NOTICE OF HEARING: (Notice generated by jwt) Status Conference set for 1/14/2014 03:00 PM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 12/23/2013)
83 AMENDED NOTICE OF HEARING: Status Conference set for 1/17/2014 03:30 PM in Room 102 before Judge Clark Waddoups. (Notice generated by jwt) (jwt) (Entered: 01/02/2014)
84 Minute Entry for proceedings held before Judge Clark Waddoups: Status Conference held on 1/17/2014. This matter is before the court to determine the status of the 42 U.SC. 1983 claim. Counsel address the court on the issue. Counsel are to prepare briefing advising the court on the 1983 issue as outlined on the record. Plaintiffs' brief is due on 1/27/2014. Defendant's response due 2/10/2014. The court will review the briefing and determine if a hearing is needed. Mr. Jensen requests he be allowed to prepare the draft of the final order in the case when it reaches that point. The court will allow him file the first proposed draft of the final order. Attorney for Plaintiff: Jonathan Turley, Adam Alba, Attorney for Defendant: Jerrold Jensen, Thomas Roberts. Court Reporter: Laura Robinson. (jwt) (Entered: 01/17/2014)
85 RESPONSE re 84 Status Conference,,,, filed by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 01/27/2014)
86 NOTICE of SUPPLEMENTAL AUTHORITY by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan re 85 Response (NOT to motion) (Attachments: # 1 7th Circuit Opinion) (Turley, Jonathan) (Entered: 01/30/2014)
87 MOTION for Extension of Time to File Response/Reply as to 85 Response (NOT to motion) filed by Defendant Jeffrey R. Buhman. (Jensen, Jerrold) (Entered: 02/10/2014)
88 DOCKET TEXT ORDER granting 87 Motion for Extension of Time to File Response/Reply re 87 MOTION for Extension of Time to File Response/Reply as to 85 Response (NOT to motion) Reply due by 2/12/2014. Signed by Judge Clark Waddoups on 2/10/2014. No attached document. (aw) (Entered: 02/10/2014)
89 RESPONSE re 84 Status Conference,,, 85 Response (NOT to motion), filed by Jeffrey R. Buhman. (Attachments: # 1 Exhibit Proposed Judgment)(Jensen, Jerrold) (Entered: 02/12/2014)
90 VACATED PER 112 ORDER TO VACATE JUDGMENTMEMORANDUM DECISION AND JUDGMENT−The court therefore finds in favor of Plaintiffs on their seventh and final count in the Complaint under 42 U.S.C. 1983 and GRANTS summary judgment in their favor on this last remaining count. Case Closed. See Memorandum Decision for details. Signed by Judge Clark Waddoups on 8/27/14. (jmr) Modified on 3/9/2017 (jwt). (Entered: 08/27/2014)
91 First MOTION for Attorney Fees and Memorandum in Support filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Turley, Jonathan) (Entered: 09/10/2014)
92 Stipulated MOTION for Extension of Time to File Response/Reply as to 91 First MOTION for Attorney Fees and Memorandum in Support filed by Defendant Jeffrey R. Buhman. (Attachments: # 1 Text of Proposed Order)(Roberts, Thomas) (Entered: 09/18/2014)
93 ORDER granting 92 Motion for Extension of Time to File Response/Reply re 92 Stipulated MOTION for Extension of Time to File Response/Reply as to 91 First MOTION for Attorney Fees and Memorandum in Support . Replies due by 10/27/2014. Signed by Judge Clark Waddoups on 9/18/14. (jmr) (Entered: 09/19/2014)
94 NOTICE of Appearance by Parker Douglas on behalf of Jeffrey R. Buhman (Douglas, Parker) (Entered: 09/24/2014)
95 NOTICE OF APPEAL as to 78 Order on Motion for Summary Judgment,, Order on Motion to Strike, Memorandum Decision,,,, 90 Judgment, filed by Jeffrey R. Buhman.

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 11 of 12

09/25/2014 09/25/2014 10/07/2014 10/07/2014
10/09/2014 01/16/2015

Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088−2130529. (Douglas, Parker) (Entered: 09/24/2014)
96 Transmission of Preliminary Record to USCA re 95 Notice of Appeal. (Attachments: # 1 Appendix)(jmr) (Entered: 09/25/2014)
97 USCA Case Number Case Appealed to Tenth Case Number 14−4117 for 95 Notice of Appeal, filed by Jeffrey R. Buhman. (jmr) (Entered: 09/25/2014)
98 Stipulated MOTION for Extension of Time to Respond filed by Defendant Jeffrey R. Buhman. (Roberts, Thomas) (Entered: 10/07/2014)
99 ORDER granting 98 Motion for Extension of Time to Respond to Motion for Attorneys' fees. Signed by Judge Clark Waddoups on 10/7/14. (jmr) (Entered: 10/07/2014)
100 Please be advised the Record is complete for purposes of appeal for USCA case number 14−4117 re 95 Notice of Appeal,. (jmr) (Entered: 10/09/2014)
101 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion to Dismiss for Mootness held on July 25, 2012 before Judge Clark Waddoups. Court Reporter/Transcriber Laura W. Robinson, RPR, FCRR, CSR, CP, Telephone number (801)328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

01/16/2015

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/6/2015. Redacted Transcript Deadline set for 2/17/2015. Release of Transcript Restriction set for 4/16/2015. (jmr) Modified on 4/16/2015 by removing restricted text (las). (Entered: 01/16/2015)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on January 17, 2014 before Judge Clark Waddoups. Court Reporter/Transcriber Laura W. Robinson, RPR, FCRR, CSR, CP, Telephone number 801−328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

02/19/2015 09/04/2015

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/6/2015. Redacted Transcript Deadline set for 2/17/2015. Release of Transcript Restriction set for 4/16/2015. (jmr) Modified on 4/16/2015 by removing restricted text (las). (Entered: 01/16/2015)
104 Please be advised the Record is complete for purposes of appeal for USCA case number 14−4117 re 95 Notice of Appeal,. (jmr) (Entered: 02/19/2015)
105 ORDER granting 91 Motion for Attorney Fees. Judgment in the amount of $242,550 shall be entered in favor the Plaintiffs and against theDefendants. Signed by Judge Clark Waddoups on 9/4/15. (jmr) (Entered: 09/04/2015)

Case: 2:11-cv-652 As of: 10/31/2017 10:00 AM MDT 12 of 12

09/11/2015
05/13/2016
05/24/2016
08/08/2016 09/16/2016 01/23/2017 03/09/2017

106 CLERK'S JUDGMENT FOR ATTORNEY'S FEES−IT IS ORDERED AND ADJUDGED: That judgment for attorney fees be entered in favor of the plaintiff and against the defendants in the amount of $242,550. Signed by Louise S. York. (jmr) (Entered: 09/11/2015)
107 ORDER of USCA 10th Circuit as to 95 Notice of Appeal filed by Jeffrey R. Buhman. The Petition for en banc review is denied. The panel has decided, sua sponte, to amend the original decision. A copy of the amended decision is attached to this order. (blh) (Entered: 05/13/2016)
108 MANDATE of USCA as to 95 Notice of Appeal, filed by Jeffrey R. Buhman. According to the USCA the case of the USDC for the Dist of UT is remanded. Judgment included with mandate: Yes. Case Reopened. (Attachments: # 1 Judgment, # 2 Mandate Letter)(jmr) (Entered: 05/24/2016)
109 ORDER of USCA Supreme Court Circuit as to 95 Notice of Appeal, filed by Jeffrey R. Buhman. Supreme Court Order granting an extension of time to file a petition for a writ of certiorari. (jmr) (Entered: 08/08/2016)
110 Letter from US Supreme Court re: Notice of Petition for Writ of Certiorari re 95 Notice of Appeal. Supreme Court Case Number 16−333. (jmr) (Entered: 09/19/2016)
111 ORDER of Supreme Court Circuit as to 95 Notice of Appeal, filed by Jeffrey R. Buhman. The petition for a writ of certiorari is denied. (jmr) (Entered: 01/23/2017)
112 ORDER TO VACATE JUDGMENT AND DISMISS CASE − Pursuant to the Tenth Circuit Court of Appealss remand instruction, the judgment in favor of the Browns (Dkt. No. 90 ) is hereby VACATED and the court DISMISSES this case without prejudice. Signed by Judge Clark Waddoups on 3/9/2017. (jwt) Modified on 3/9/2017 − added JUDGMENT to entry title(jwt). (Entered: 03/09/2017)