A federal judge’s decision declaring part of Utah’s anti-polygamy law unconstitutional doesn’t just let the state’s polygamists come out of the shadows. It sharply criticizes the LDS Church for embracing the very world-view that led to the persecution of Mormons in the 19th century.
The ruling by Judge Clark Waddoups takes aim at Utah’s 1973 polygamy law for singling out for criminal prosecution those who, out of religious conviction, cohabit with and act as though they are married to more than one spouse without seeking or claiming a civil marriage contract.
Plaintiffs argue that the criminalization of religious cohabitation in Utah through the Statute subjects a targeted group — fundamentalist Mormons who still believe practicing polygamy to be a central tenet of the religion established by Joseph Smith and continued by Brigham Young — to “the moral dictates of the LDS Church” as legislated into criminal law on this issue. (Pls.’ Mem. Supp. Mot. Summ. J. 56 [Dkt. No. 50].) This claim seems historically well-founded.
Relying on recent studies of 19th-century Mormonism, Waddoups interprets hostility to the faith according to the late Edward Said’s concept of Orientalism — the dismissal of alien others as barbarous people beyond the pale of Northern European civilization. This categorization of the Mormons was enshrined in the Supreme Court’s 1878 Reynolds decision, which refused to permit them a Free Exercise right to practice polygamy.
The court notes that 133 years after Reynolds, non-Mormon counsel for Plaintiffs have vigorously advanced arguments in favor of the right of religious polygamists to practice polygamy (through private “spiritual” marriages not licensed or otherwise sanctioned by the state, a relationship to which the court will refer as “religious cohabitation”) that would have perhaps delighted Mormon Apostles and polygamy apologists throughout the period from 1852 to approximately 1904.
What seems to aggrieve the judge most is that the LDS establishment, acting through huge Mormon majorities in the Utah state legislature, wholeheartedly embraced its former persecutors’ Orientalist perspective in criminalizing those who simply want to live out what had been a central principle of their own faith: “With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator in the saga of religious polygamy in Utah and America).”
Waddoups bases his legal analysis on a strong dissenting opinion written by Christine Durham, the chief justice of the Utah Supreme Court, in a polygamy case seven years ago. The targeting of a particular group for disfavor on religious grounds means that the state polygamy statute is not a neutral, generally applicable law, and thus can be challenged as a violation of the Free Exercise Clause — where, according to the judge, it fails the application of “strict scrutiny”:
Encouraging adulterous cohabitation over religious cohabitation that resembles marriage in all but State recognition seems counterproductive to the goal of strengthening or protecting the institution of marriage. The court thus cannot believe that this approach constitutes a narrowly tailored means of advancing the compelling state interest of protecting the institution of marriage.
Ergo, that part of the statute is unconstitutional.
Perhaps not incidentally, Waddoups was himself born and bred into the LDS Church. He grew up in heavily Mormon Southern Idaho, where in 1964 he received a diploma for completing three years of seminary study. He went on to get his bachelor’s degree at BYU and his law degree at the University of Utah, after which he practiced law until he was appointed to the federal bench by President George W. Bush in 2008. In January of 2011, he presided over the first session of Utah State Senate, administering the oath of office to all members, including his nephew Michael Waddoups, who was chosen president of the body.
“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,” he writes near the beginning of the 91-page ruling. It will be interesting to see how heavily the ruling will weigh on the LDS establishment in years to come.