Suppose, said the judge, he is "married to one woman and then he has intimate sexual relationships continuing with two other women but he doesn't make any professions of commitment to these women." Probably OK, indicated Jensen. "So it's the expression of the fact that a person is a wife that makes it illegal," surmised the judge. "Yes," Jensen replied.
This strange policy is indefensible for a host of reasons. First, it criminalizes the mere claim to be married. Second, it doesn't actually prevent men from having sex and children with multiple women. Third, it has been enforced almost exclusively against people who are motivated by religious faith.
The latter policy reflects the origin of the law: the federal demand that Utah outlaw polygamy before it could be admitted as a state. Interfering with religion was exactly the point.
In 1860, approving a law to ban plural marriage in U.S. territories, a House committee labeled Mormonism an "odious and execrable heresy." The Supreme Court later pronounced polygamy "contrary to the spirit of Christianity." They evaded the issue of religious liberty by invoking their own -- supposedly superior -- religious convictions.
The policy certainly can't be justified as a neutral attempt to uphold the interests of women and children. "Encouraging adulterous cohabitation over religious cohabitation that resembles marriage in all but State recognition," concluded Judge Waddoups, "seems counterproductive to the goal of strengthening or protecting the institution of marriage."
There may be crimes that in practice are sometimes associated with polygamy, but the way to address those is by prosecuting the crimes -- as is the custom with non-polygamists. In any case, the judge noted, "there has been no allegation of child or spousal abuse by members of the Brown family."
Sexual freedom does not always produce results that are universally admired. But if we can tolerate Hugh Hefner's proclivities, we can tolerate Kody Brown's.