http://www.volokh.com/2013/12/14/brown-v-buhman-isnt-complicated/
Utahs anti-bigamy ordinance has a normal provision, and an unusual provision: A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person. Utah Code Ann. § 76-7-101(1) (2013).
Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X cant obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.
Rather, the case involved the unique part of the Utah statute, which defined bigamy to also include when X cohabits with another person. This criminalizes quite a lot of conduct which, these days, is pretty common. For example, X and A are civilly married. With As knowledge and consent, X spends some weekends at the home of his mistress, B, with whom he has sexual relations. Under the common law, this is the crime of adultery, and adultery is still a crime in some states. But as far as I know, no state other than Utah would describe such conduct as bigamy.
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It is important to remember Brown v. Burnham in no way establishes a constitutional right to plural marriage. Nor does the Brown decision challenge ordinary state laws against adultery. Rather, the decision simply strikes down an unique state law which defined cohabitation as bigamy. Even then, the statute might have been upheld but for the governments policy of reserving prosecutions solely for cohabitators who for religious reasons considered themselves to be married to each other under Gods laws, and who fully conceded that they were not married under the civil law of the state.
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