In modern America, sex is increasingly where it should be: outside the reach of government. Anti-sodomy statutes have been tossed by the Supreme Court. Contraception is widely accessible. Anyone with a computer can gorge on pornography without fear of prosecution.
Same-sex marriage has been legalized in 18 states and the District of Columbia. Now another step has been taken to expel police and legislators from the bedrooms of consenting adults: a federal court decision striking down a key element of Utah's ban on polygamy.
Last month, District Judge Clark Waddoups ruled that the law infringes not only on constitutionally protected sexual privacy but on the free exercise of religion. Utah, he concluded, doesn't have to issue multiple marriage licenses to Kody Brown and his consorts, who appear in the reality TV show "Sister Wives." But it can't dictate their living arrangements.
The group belongs to a renegade Mormon sect that regards polygamy as sanctioned by God. Brown is legally married to one of the women and "spiritually married" to the other three. Together, at last count, they have 17 children.
If a man and a woman want to live together and call themselves partners, buddies, teammates, friends with benefits or Bonnie and Clyde, the government will leave them alone. Ditto if a guy can entice several fertile females to shack up with him and spawn a noisy horde of offspring.
But in Utah, it matters what the man calls the women living with him. If he refers to them as wives, he can go to prison. The law covers not only formal polygamous marriage but any relationships in which a married person "purports to marry another person or cohabits with another person." That was the provision ruled unconstitutional.
Laws against bigamy make sense as a safeguard against fraud. The classic case involves a cad who maintains two wives and households, each tragically unaware of the other. But no one is being fooled in the Brown home.
That makes no difference in Utah. After the TV show triggered a police investigation, state officials chose not to indict the Browns but declined to rule out future prosecution. When Kody Brown initiated a court challenge, though, the state had to acknowledge the true nature of the ban.
During the litigation, the judge addressed Assistant Utah Attorney General Jerrold Jensen: "Let'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 (the law)?" Answer: "I don't think that would be termed polygamy, because there's no marriage."
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