Does Utah even use it’s cohabitation law? I thought that most of the time they end up prosecuting them for things like benefit fraud or some sort of abuse.
Freegards
On pages 60-62 of the Brown opinion are excerpts from the Court’s questioning of the attorney defending the statute. Based on the attorney’s answers, if X+A are married, and they cohabit with B then C then D, there will be no prosecution. (E.g., there’s no legal problem with having a transitory series of live-in mistresses.) Nor is there a legal problem if X says “I intend to be committed to this woman [B], I will take care of her and her children for as long as she lives.” But if X says that he will take care of B for as long as she lives because X and B consider themselves to be married, then that’s a crime.
To Judge Waddroup, this takes the case out of the Reynolds and Employment Division v. Smith (1990) rule that facially neutral statutes are not a Free Exercise violation, even if they interfere with the exercise of somebody’s religious beliefs. Rather, the case is now like Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (municipal ban on certain types of killing of animals was facially neutral, but was a First Amendment Free Exercise violation because it was aimed at Santeria religious ceremonies).
By policy, Utah rarely prosecutes persons who cohabitate for religious reasons, but Utah does reserve the discretion to do so when it wants. The Court finds a 14th Amendment Due Process violation here, based on a application of Lawrence v. Texas (states cannot criminalize oral or anal sex between consenting adults), the rational basis test, and other modern 14th Amendment doctrine. For example:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
One of the best ways to attract prosecutorial attention in Utah is to be a highly visible advocate for the plural lifestyle of one’s family. That is precisely what happened to the Browns, who are the subjects of the TLC reality TV series “Sister Wives.” (New season starts Dec. 29.) Going on national television week after week led to lots of government investigations of them, and to threats of prosecution which forced them to move from Utah to Nevada.