Last summer, we posted a blog entitled “Polyamorous Marriage: The Next Frontier of Domestic Relations?” in which we discussed the wide ranging impact of the U.S. Supreme Court’s landmark decision, Obergefell v. Hodges, which legalized same-sex marriage in the United States. In that blog, we suggested that proponents of polygamy would likely use Obergefell in pursuit of a constitutionally recognized right to polygamy.
And it was. For example the stars of the reality television show “Sister Wives” used Obergefell in their ongoing struggle against Utah’s anti-polygamy laws. In 2013, Kody Brown and his four wives – one legal, three spiritual — obtained an interim victory against the laws when U.S. District Judge Clark Waddoups ruled that Utah’s law violated polygamist’s constitutional rights to privacy and religious freedom. In defense of Judge Waddoups’ decision on appeal, Brown and his wives cited to Obergefell and argued that “states can no longer use criminal codes to coerce or punish those who choose to live in consensual but unpopular unions.”
On Monday, the Sister Wives suffered a judicial set back when the 10th U.S. Circuit Court reversed Judge Waddoups’ decision and brought back Utah’s law prohibiting married people from living with additional partners even if they are not legally married to the other “spouses.” Notably the Circuit Court based its decision upon procedure rather than the substance of the constitutional claims. Specifically, the Circuit Court determined that the issues under review were moot when Judge Waddoups decided it.
Brown and his wives have vowed to take the matter back to the 10th Circuit or possibly straight to the U.S. Supreme Court. Regardless of where they take the fight, the sister wives are certainly travelling into next frontier of domestic relations. Obergefell and its progeny will doubtless serve as the paving stones upon which they make this journey.