Sound Choices Coalition amicus in Brown case

8/20/2019 Sound Choices Coalition amicus in Brown case

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No. 14-4117

In the United States Court of Appeals for the Tenth Circuit

JEFFREY BUHMAN, in his official capacity,

Appellant-Defendant,

v.

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN

and ROBYN SULLIVAN,

Appellees-Plaintiffs.

On appeal from the U.S. District Court for the District of Utah,Honorable Clark Waddoups presiding, Case No. 2:11-CV-00652-CW

BRIEF FOR AMICUS CURIAE SOUND CHOICES COALITION, INC.

SUPPORTING APPELLANT-DEFENDANT AND REVERSAL

Christian Kesselring (USB #13773)P.O. Box 866

Heber City, Utah 84032

Telephone: 435-657-0185

[email protected]

Counsel for Amicus Curiae Sound

Choices Coalition, Inc.

Appellate Case: 14-4117 Document: 01019460676 Date Filed: 07/15/2015 Page: 1Appellate Case: 14-4117 Document: 01019460868 Date Filed: 07/16/2015 Page: 1


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate

Procedure, Amicus Curiae Sound Choices Coalition, Inc. (“SCC”) hereby states

that it has no parent corporation, nor any publicly held corporation that owns 10%

or more of its stock.

IDENTITY, INTEREST AND AUTHORITY TO FILE

Pursuant to Rule 29(c)(4) of the Federal Rules of Appellate Procedure, SCC

hereby states that it is a nonprofit organization dedicated to raising awareness and

bringing an end to the damaging practices commonly associated with polygamist

communities. To these ends, SCC advocates on behalf of victims of these abuses

through legal action, legislative lobbying, and an overall proactive approach to

promoting just and stable societies. As such, SCC and its constituents are greatly

concerned with the issues now before the Court. The source of SCC’s authority to

file is the parties’ consent.

RULE 29(c)(5) STATEMENT

Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure, SCC

states that its counsel authored this brief in whole, and that no person – other than

SCC, its members, or its counsel – contributed money that was intended to fund

preparing or submitting this brief.



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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................i

IDENTITY, INTEREST AND AUTHORITY TO FILE ......................................i

RULE 29(c)(5) STATEMENT .................................................................................i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iii

ARGUMENT ............................................................................................................ 1 I. UTAH’S PROHIBITION OF BIGAMOUS COHABITATION IS JUSTIFIED BY THE HARMS OF THE

PRACTICE. .................................................................................................................................................. 1

A. The well-being of children is a compelling governmental interest............................................... 2

B. Utah’s bigamy statute is narrowly tailored to advance the interest of protecting children’s

well-being. ............................................................................................................................................. 3

C. Bigamous cohabitation imposes serious harm to children’s well-being. ..................................... 5

D. The well-being of mothers directly impacts that of children. ...................................................... 8

CONCLUSION ........................................................................................................ 9

CERTIFICATE OF COMPLIANCE WITH RULE 32 ..................................... 11

CERTIFICATE OF COMPLIANCE WITH CM/ECF MANUAL .................. 12

CERTIFICATE OF SERVICE ............................................................................ 13



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TABLE OF AUTHORITIES

Cases

Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006) .................................... 3

Brown v. Buhman, 947 F. Supp.2d 1176 (D. Utah 2013) ................................. 3, 4, 5

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .......... 1

Palmore v. Sidoti, 466 U.S. 429 (1984) ..................................................................... 3

Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008) ..................................... 4

State v. Holm, 2006 UT 31, 137 P.3d 726 ................................................................. 3

Statutes

Utah Code Ann. § 76-7-101 ....................................................................................... 1

Other Authorities

J. Henrich et al ., Review, The puzzle of monogamous marriage, Phil. Trans. R.

Soc. B. (2012) .....................................................................................................6, 9

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

....................................................................................................................... passim

Thomas Buck, Jr., Comment, From Big Love to the Big House: Justifying Anti-

Polygamy Laws in an Age of Expanding Rights, 26 Emory Int’l L. Rev. 939

(2012) ..................................................................................................................2, 8



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ARGUMENT1

Whatever level of constitutional scrutiny the Court applies to Utah’s

bigamy statute, Utah Code Ann. § 76-7-101, its analytical focus will eventually

turn to identifying and qualitatively evaluating the governmental interests

implicated by the criminalization of cohabiting when one or the other cohabitant is

married. SCC defers to the able expositions by both Appellant and Amicus Eagle

Forum Education & Legal Defense Fund with regard to the former analysis, and

generally agrees that the Court should hold the bigamy statute both facially and

operationally neutral under Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993). SCC hopes here to aid the Court with a better development

of the latter part of the analysis with regard to governmental interests.

I. UTAH’S PROHIBITION OF BIGAMOUS COHABITATION IS

JUSTIFIED BY THE HARMS OF THE PRACTICE.

As observed by the Supreme Court of British Columbia in Reference re:

Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, at paras. 2-5,

available at http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm,

the right answers to constitutional questions like those presented here frequently

depend upon how the problem is framed, and in the matter of polygamy the

problem is all about harm. Having reached that conclusion, and relying upon “the

1 SCC adopts the facts stated in Appellant-Defendant Jeffrey Buhman’s brief.


http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htmhttp://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htmhttp://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htmhttp://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm


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most comprehensive judicial record on the subject ever produced,” that court

concluded that harms to women, children and society in general are “inherent in

the practice of polygamy.” Reference at para. 5-6. Due to the rigor and breadth of

this Canadian provincial court’s analysis, SCC relies heavily on its opinion in this

brief.

The harms imposed by bigamous cohabitation on women, children and

society at large – of which several are outlined below – are well documented and

present ample reason for states to ban the practice. Should the Court disagree with

the well-considered arguments for rational basis review under the Free Exercise

Clause, and apply strict scrutiny, the prevention of these harms is nothing if not

compelling. See Thomas Buck, Jr., Comment, From Big Love to the Big House:

Justifying Anti-Polygamy Laws in an Age of Expanding Rights, 26 Emory Int’l L.

Rev. 939, 996 (2012) (“[t]he harms flowing from polygamy are too evident to

ignore and too serious to allow to occur under the guise of fundamental rights”),

available at

http://law.emory.edu/eilr/_documents/volumes/26/2/comments/buck.pdf .

A.

The well-being of children is a compelling governmental interest.

While SCC does not concede that Utah’s bigamy statute should by any

means be subjected to strict scrutiny, it is important to note that existing precedent

clearly identifies safeguarding children’s well-being as a compelling governmental


http://localhost/var/www/apps/conversion/tmp/scratch_7/law.emory.edu/eilr/_documents/volumes/26/2/comments/buck.pdfhttp://localhost/var/www/apps/conversion/tmp/scratch_7/law.emory.edu/eilr/_documents/volumes/26/2/comments/buck.pdfhttp://localhost/var/www/apps/conversion/tmp/scratch_7/law.emory.edu/eilr/_documents/volumes/26/2/comments/buck.pdf


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interest. See, e.g., Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir.

2006) (citing, inter alia, Palmore v. Sidoti, 466 U.S. 429, 433 (1984) ("The State,

of course, has a duty of the highest order to protect the interests of minor children,

particularly those of tender years.")).

The well-established parens patriae principle stated in Foulston applies

equally here. The choice of ostensibly consenting adults, including Appellees, to

bring children into a polygamous family directly implicates the interests of the

state to protect those children. To the extent that a polygamous lifestyle visits

significant harms on the children, as is made obvious infra, it is within the State’s

power to prohibit that lifestyle.

B.

Utah’s bigamy statute is narrowly tailored to advance the interest of

protecting children’s well-being.

Concentrating its attention solely on those harms associated with polygamy

that implicate other criminal activity, the trial court concluded that the bigamy

statute was not narrowly tailored to advance a compelling governmental interest.

See Brown v. Buhman, 947 F. Supp.2d 1176, 1219-1220 (D. Utah 2013). The trial

court adopted the reasoning of Chief Justice Durham’s dissent in State v. Holm,

2006 UT 31, ¶ 175, 137 P.3d at 775, in which the former Chief Justice wrote that

the State’s “ policy of selective prosecution reinforces my conclusion that a blanket

criminal prohibition on religious polygamous unions is not necessary to further the



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state’s interests [in detecting and prosecuting collateral crimes].” Brown at 1220

(emphasis in Brown).

Belying the trial court’s analysis is the distinction between the State’s

exercise of prosecutorial discretion and the operation of the bigamy statute itself.

The issue bef ore the court was not the constitutionality of the State’s policy of non-

prosecution, but that of the bigamy statute, which is accordingly the proper object

of the narrow tailoring analysis.

With regard to the bigamous cohabitation prong of the statute, it may not be

perfect, but it does encompass with some precision the practice of polygamy,

which the Supreme Court of British Columbia rightly found inherently harmful.

Reference at para. 1045. To the extent that bigamous cohabitation may

incidentally encompass adulterous cohabitation, the fact is insignificant in the

constitutional analysis because adulterers are entitled, at most, to rational basis due

process. C.f. Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008)

(declining to find a fundamental right to engage in private sexual conduct where

appellant had an affair while married).

To the extent that the statute’s purposes may have been subverted by the

policies of current and past administrations, those policies can and should be

revisited through the political process. Eliminating generational polygamy

presents the problem of how the State can preserve existing families while



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preventing new ones from appearing. These are difficult matters of political

judgment, and should be left to the political branch. Judicial repeal of the

prohibition of bigamous cohabitation, on the other hand, will effectively destroy

the State’s ability to counter the ills that arise from the practice.

The court furthermore followed Chief Justice Durham’s reasoning to

conclude that the bigamy statute has forced polygamists underground, thereby

“inhibit[ing] the advancement of this compelling State interest.” Brown at 1221.

But the bigamy statute has not had any such effect. It was undisputed in the

proceedings below that the majority of polygamist families in Utah have lived

openly in polygamy without action by the state. See, e.g., Complaint ¶ 123, Joint

Appx. p. 37. Claiming on the one hand that the bigamy statute has no effect on

polygamists’ behavior, and on the other that it drives them to isolation, is internally

inconsistent and undercuts both arguments.

C.

Bigamous cohabitation imposes serious harm to children’s well-being.

The purpose behind the bigamy statute of protecting children is justified by a

multiplicity of harms, each of which was found in the Canadian polygamy case.

The weight of the evidence persuaded the Canadian court of the “convergence of

evidence on the question of harm” across cultures, including in North America.

Reference at para. 492.



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One striking danger of polygyny in particular is that of infant and child

mortality. Infants and children in polygynous households face mortality rates at

least 20% higher than their counterparts in monogamous households, and in some

studies much higher. See J. Henrich et al ., Review, The puzzle of monogamous

marriage, Phil. Trans. R. Soc. B. (2012) 367, 657-669, 666, available at

http://rstb.royalsocietypublishing.org/content/royptb/367/1589/657.full.pdf ; accord

Reference at paras. 521, 783 (citing Dr. Henrich’s findings). These figures may

well generally reflect children’s disadvantages on various other measures.

One such measure, Dr. Henrich posited, may be paternal investment in

offspring. Henrich et al ., supra at 666. One study of nineteenth century Mormons

showed that children of wealthy men with multiple wives fared considerably worse

than children of poor men who were mostly monogamous. Id . Dr. Henrich

hypothesized that higher status men were more disposed to expend resources on

finding new wives than to invest in their children. Id .; see also Reference at para.

695 (referencing report of Dr. Dena Hassouneh with regard to anecdotal evidence

from polygamous American Muslim women).

Polygamy is frequently associated with larger family size, and higher

fertility for each wife. See Henrich et al ., supra at 663; see also Reference at paras.

555 (testimony of Dr. Henrich), 667, 787. In polygynous households, these

patterns can be expected to exert pressures on the family’s ability to provide


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financially for each child. See Reference at para. 594 (referencing testimony of Dr.

Shoshanna Grossbard). This can be observed in Appellee’s own circumstance,

wherein Janelle Brown was apparently unable to afford medical care or health

insurance because, although cohabiting with Kody Brown, the latter’s income had

to “support sixteen people.” Complaint ¶¶ 125-27, Joint Appx. p. 38.

The psychological well-being of children is also implicated by the practice

of polygamy. Available literature indicates patterns of mental health problems,

poor social adjustment, and decreased academic performance among children in

polygynous families. See Reference at paras. 607 (report of Dr. Dena Hassouneh),

608 (affidavit of Dr. Susan Stickevers). Adolescents in polygynous households

report these indicators, as well as “higher levels of reported family dysfunction and

drug use than their counterparts in monogamous families.” Reference at para. 603

(report of Dr. Rebecca Cook). This seems to suggest long-term implications for

individuals as they proceed through childhood towards adulthood.

For girls in polygynous communities, the aforementioned risks are further

compounded by their tendencies toward early sexual activity and childbearing.

Those in North American polygamous communities are often married by age 14 to

16 years, often to significantly older partners, and producing offspring soon after.

See Reference at para. 659 (affidavit anti-polygamy advocate and author Andrea

Moore-Emmett identifying common traits observed both from her experiences and



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from anecdotal affidavits from other individuals). Examining statistical and other

evidence, the Canadian court noted the “prominence” of teen pregnancy in

polygamous communities when compared to general norms. See Reference at

paras. 710-25. Further troubling is the common expectation that underage wives

will not only become pregnant quickly, but will do so again and again, in rapid

succession. See Buck, supra at 967.

D. The well-being of mothers directly impacts that of children.

Unsurprisingly, the well-being – particularly psychological well-being – of

mothers in polygamous families has been found to have serious consequences to

children’s well-being. Women in polygynous societies are at greater risk for

domestic violence. See Reference at para. 621 (quoting statistical analysis report of

Dr. Rose McDermott). This higher incidence of abuse makes these women prone

to mental health problems. See Reference at paras. 584 (report of Dr. Rose

McDermott), 603 (report of Dr. Rebecca Cook). First wives particularly

experience negative psychiatric outcomes, sometimes disabling. See Reference at

para. 607 (report of Dr. Dena Hassouneh), 667.

Women in polygyny experience more practical stressors as well. They are

forced to compete with one another for their husbands’ attention and resources.

Reference at paras. 597, 600 (testimony of opposing expert Professor Angela

Campbell). There is a tendency of co-wives to abuse one another’s children –



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possibly as a result of evolutionary predispositions against unrelated offspring. See

Reference at para. 667; Henrich et al., supra at 664-65. Finally, resources are

scarce due to large family sizes, and distribution sometimes favors one wife over

another. See Reference at paras. 603 (report of Dr. Rebecca Cook), 604 (report of

Professor Nicholas Bala).

As mothers’ mental health problems and emotional distr ess increase, this

causes significant stress for children, leading to additional emotional problems. See

Reference at para. 603 (report of Dr. Rebecca Cook); see also Henrich et al., supra

at 665 (“children from polygamous families experience higher incidences of

marital conflict, household violence and family disruptions than do children of

monogamous families”).

Aside from the clearly compelling interest in protecting children from the

harmful environments frequently found in polygamous households, it may also

merit the Court’s consideration whether or not the protection of women can also be

a compelling state interest. Under these circumstances, women are at a distinct

power disadvantage relative to men, and at risk for multiple serious harms.

CONCLUSION

SCC has presented several substantial state interests for the Court’s

consideration in evaluating the constitutionality of Utah’s bigamy statute. To

catalogue every harm flowing from the practice of polygamy would be an



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ambitious task, but the opinion of the Supreme Court of British Columbia in

Reference is an adequate start. Most of the harms listed herein are sufficiently

compelling to satisfy any constitutional standard, from rational basis to strict

scrutiny. Whatever standard the Court may ultimately apply, SCC urges the Court

to uphold the constitutionality of the bigamy statute, and reverse the judgment of

the trial court.

RESPECTFULLY SUBMITTED this 15th day of July, 2015.

s/ Christian A. KesselringP.O. Box 866Heber City, Utah 84032

Telephone: 435-657-0185

[email protected]





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CERTIFICATE OF COMPLIANCE WITH RULE 32

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,

SCC’s counsel hereby certifies as follows:

1.

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 2,064 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

it has been prepared in a proportionally spaced typeface using Microsoft

Work 2013 in 14 point Times New Roman font.

DATED this 15th day of July, 2015.

s/ Christian A. KesselringP.O. Box 866

Heber City, Utah 84032Telephone: 435-657-0185

[email protected]





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CERTIFICATE OF COMPLIANCE WITH CM/ECF MANUAL

The undersigned hereby certifies that all required privacy redactions have

been made, this ECS submission is an exact copy of the hard copies required to be

submitted, and that this document was scanned for viruses with the most recent

version of Kaspersky Internet Security v.14.0.0.4651(i), and according to the

program is free of viruses.


s/ Christian A. KesselringP.O. Box 866Heber City, Utah 84032

Telephone: 435-657-0185

[email protected]





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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on July 15, 2015 via

ECF, to:

Adam [email protected]

Jonathan Turley [email protected]

Attorneys for Plaintiffs-Appellees

Parker Douglas

[email protected]

Jerrold S. Jensen [email protected] Dibblee Roberts

[email protected]

UTAH ATTORNEY GENERAL’S OFFICE Attorneys for Defendant-Appellant

Lawrence John Joseph

[email protected]

Attorney for Amicus Curiae Eagle Forum Education & Legal

Defense Fund


s/ Christian A. Kesselring

P.O. Box 866Heber City, Utah 84032

Telephone: 435-657-0185

[email protected]




Documents

Sound Choices Coalition amicus in Brown case