AirTalk for December 17, 2013

Does Utah’s anti-polygamy law violate the Constitution?

2010 Summer TCA Tour - Day 10

Frederick M. Brown/Getty Images

TV personalities Meri Brwon, Janelle Brown, Kody Brown, Christine Brown and Robyn Brown speak duinrg the "Sister Wives" panel during the Discovery Communications portion of the 2010 Summer TCA pres tour held at the Beverly Hilton Hotel in August 2010.

A federal judge ruled Friday that provisions of Utah’s ban on polygamy violated the constitutionally protected rights of free exercise of religion and due process. In a case brought by television’s favorite polygamous patriarch—Sister Wives’ star Kody Brown—the court said it was unconstitutional to prohibit a married person from cohabiting with another person.

In the 91-page opinion, U.S. District Judge Clark Waddoups explains that the state’s ban on straightforward polygamy—where an already married person enters into a formal marriage with another—is constitutionally permissible. But, he said, the state’s cohabiting provision is irrational and discriminatory because only religious individuals and families are prosecuted and not—for example—married adulterers who cohabit with someone other than their spouse.

Utah first outlawed polygamy more than a century ago—when the practice was commonplace among Utah’s Mormon communities.  Last week’s decision is expected to appealed to a higher court, and the constitutionality of polygamy bans will be further examined.

Does this ruling raise any concerns? Is it time to rethink the longstanding ban on plural marriage? Do these bans further a valid public policy?

Guests: 

Adam Winkler, Professor of Law, UCLA; Author “Gunfight: The Battle over the Right to Bear Arms in America” (2001); Writer for The Huffington Post

Dr. John C. Eastman, Ph.D., Henry Salvatori Professor of Law & Community Service; Dale E. Fowler School of Law at Chapman University; Founding Director, The Claremont Institute's Center for Constitutional Jurisprudence


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