Part of Utah Polygamy Law Unconstitutional

(CN) - A federal judge struck down key parts of Utah's polygamy law in a case brought by the stars of the television reality show "Sister Wives."

In a ruling handed down late Friday U.S. District Judge Clark Waddoups said the laws use of the word "cohabitation" violates constitutional guarantees of freedom of religion and due process.

But over the course of his 91-page opinion, Judge Waddoups freely admits and clearly illustrates that he struggled mightily with the decision.

"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," Waddoups wrote.

He said it would be an easy enough matter for the court to grant the request of defendant Utah County Attorney Jeffrey Buhman "and find against the plaintiffs on the question of religious cohabitation under the Statute, defaulting simply to Reynolds v. United States ... 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," he wrote.

Reynolds v. United States is the 1879 Supreme Court decision that supported the power of states to restrict polygamy.

"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, 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," Waddroups said.

He then went on to find the "cohabitation" prong of the Utah polygamy law is unconstitutional on numerous grounds, including its being overly broad.

The ruling is a victory for by Kody Brown and his four wives, with whom he stars on TLC's "Sister Wives and has fathered 17 children.

Brown and his wives - Meri, Janelle and Christine Brown, and Robyn Sullivan - filed a lawsuit against defendants Gov. Gary Herbert, Attorney General Mark Shurtleff and Utah County attorney Jeffrey Buhman in July 2011.

As Brown explained at the time, he is "civilly married" to Meri Brown and "spiritually married" to the other three women.

The Brown family fled from Utah to Nevada under fear of prosecution in 2010, but they want to return to their home state to rejoin relatives and the fundamentalist Apostolic United Brethren Church, a Mormon offshoot based in Salt Lake City, their complaint said.Herbert and Shurtleff were granted motion to dismiss for lack of standing in February 2012, but Waddoups kept Buhman as the sole defendant.

In crafting his decision on Friday, Waddoups took pains to save at least a portion of the Utah law, replacing the cohabitation language with the words "marry" and "purports to marry" and thereby narrowing its construction.

This, he said, allows the law to remain in force as prohibiting bigamy in the literal sense, and also the "impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage."

In a written statement, Brown said he and his wives were "humbled and grateful for this historical ruling."

He added, "We hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs."

In an interview with the Salt Lake Tribune over the weekend, Utah Gov. Gary Herbert expressed discomfort over the ruling, but said had not had a chance to review the entire decision.

"I'm always a little concerned when we have decisions that change public policy by the courts," the governor said. "I'd much rather see decisions on social issues come from our Legislature representing the will of the people. So I'm a little bit jaundice-eyed, but I need to understand the arguments and logic and what the ramifications of this decision really will be for Utah."

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