Utah reply brief in Sister Wives case

8/20/2019 Utah reply brief in Sister Wives case

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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................. 1

ARGUMENT ......................................................................................................................... 6

I. REYNOLDS AND POTTER ARE BINDING PRECEDENT THAT

COMPEL REVERSAL OF THE DISTRICT COURT’S JUDGMENT .........6

A. Reynolds Is Binding on this Court and the District Court…………….8

B. Potter Is Binding on This Panel and the District Court ……………..14

C. Plaintiffs’ Other Observations Regarding Precedent Are

Unpursuasive and Legally Irrelevant to the Analysis Here …………15

II. UTAH’S ALTERNATIVE I NTERPRETATION OF THE STATUTE ..…18

III. PLAINTIFFS’ OTHER ARGUMENTS ARE UNPURSUASIVE FOR

THE REASONS ALREADY ARTICULATED AND UTAH HAS AN

INTEREST IN ADDRESSING THE HARMS ATTENDANT TOPLURAL MARIAGES……………………………………………………....23

A. Plaintiffs’ Asserted Fundamental Right is Nonexistent ……………..23

B. The Harms Attendant to Polygamous and Bigamous Practicesare Legitimate Subjects of Utah’s Police Powers …………………...25

CONCLUSION ................................................................................................. …..27

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................28

ECF CERTIFICATIONS .........................................................................................28

CERTIFICATE OF SERVICE ................................................................................29

Appellate Case: 14-4117 Document: 01019502424 Date Filed: 10/06/2015 Page: 2


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TABLE OF AUTHORITIES

Cases

Altria Group, Inc. v. Good,

555 U.S. 70 (2008) ..............................................................................................13

Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991) ............................................................................................14

Barnes v. United States,

776 F.3d 1134 (10th Cir. 2015) .................................................................. 6, 7, 15

Bond v. United States,

134 S.Ct. 2077 (2014) .........................................................................................13

Bronson v. Swensen,

500 F.3d 1099 (10th Cir. 2007) .................................................................... 11, 14

Brown v. Herbert,

850 F. Supp.2d 1240 (D. Utah 2012) .................................................................... 2

Brown, v. Buhman,

947 F. Supp.2d. 1170 (D. Utah 2013) .......................................................... passim

Bushco v. Shurtleff,

729 F.3d 1294 (10th Cir. 2013) ...........................................................................13

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ..................................................................................... 10, 11

Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d 1174 (10th Cir.2000) .............................................................................. 5

Dague v. Piper Aircraft Corp., 418 N.E.2d 207 (Ind. 1981) .................................................................................22

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................................9, 10

Duncan v. Wiseman Baking Co.,

357 S.W.2d 694 (Ky. 1961) ......................................................................... 22, 23

Employment Division v. Smith, 494 U.S. 872 (1990) ............................................................................................15

Garratt v. City of Philadelphia, 127 A.2d 738 (Penn. 1956)..................................................................................22



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Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................................................................13

Grace United Methodist Church v. City of Cheyenne,

451 F.3d 643 (10th Cir.2006) ..............................................................................11

Heideman v. City of South Salt Lake, 348 F.3d 1182 (10th Cir. 2003) ...........................................................................18

Hopkins v. Oklahoma Public Employees Retirement System, 150 F.3d 1155 (10th Cir.1998) ............................................................................18

In re Matter of United Effort Plan Trust , civil no. 053900848, Utah Third District

Court ……………………………………………………………………...……26

In re United States,

10 F.3d 723 (10th Cir.1993) ................................................................................... 6

Kitchen v. Herbert,755 F.3d 1193 (10th Cir. 2014) ...........................................................................25

Lawrence v. Texas, 539 U.S. 558 (2003) ..................................................................................... 12, 13

Loving v. Virginia,

388 U.S. 1 (1967) ......................................................................................... 12, 15

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ............................................................................................13

Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007) ................................................................................21

Outfitters Assoc.,

24 F.Supp.3d ........................................................................................................19

Potter v. Murray City, 760 F.2d 1065 (10th Cir.1985 ) .......................................................................1, 11

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ............................................................................................21

Reynolds v. United States, 98 U.S. 145 (1878) ...................................................................................... passim

Sale v. Johnson,

129 S.E.2d 465 (North Carolina 1963)................................................................22

Shinn v. Heath,

535 S.W.2d 57 (Ark. 1976) .................................................................................22



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State v. Geer , 965 P.2d 1 (Utah1988)………………………………………………………………………26

State v. Green, 99 P.3d 820, 830 (Utah 2004) .................................................. 11, 20

State v. Holm, 137 P.3d 726, 772 (Utah 2006) ................................................. 11, 14

Tokoph v. United States, 774 F.3d 1300 (10th Cir. 2014) ............................................................................. 6

Union Ins. Co. v. United States,

73 U.S. 759 (1867) ..............................................................................................22

United States v. Berryhill, 880 F.2d 275 (10th Cir.1989) ................................................................................ 6

United States v. Lopez,

514 U.S. 549 (1995) ............................................................................................13

United States v. Monts, 311 F.3d 993 (10th Cir. 2002) .............................................................................18

United States v. Spedalieri,

910 F.2d 707 (10th Cir.1990) ................................................................................ 6

Virginia v. Am. Booksellers Ass’n,

484 U.S. 383 (1988) .............................................................................................. 6

Williams v. State, 137 S.W. 927 (Ark. 1911) ...................................................................... 22, 23, 24

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................................10

Constitutional Provisions and Statutes

Utah Code Ann. § 76-7-101 .................................................................................1, 11

Utah Const. Art XXIV, Sec. 2 .................................................................................19

Utah Const. Art. III ..............................................................................................1, 19



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Rules

Fed. R. App. P. 32(a)(5) ...........................................................................................28

Fed. R. App. P. 32(a)(6) ...........................................................................................28

Fed. R. App. P. 32(a)(7)(B) .....................................................................................28Fed. R. App. P. 32(a)(7)(B)(iii) ...............................................................................28

Other Authorities

BRITISH COLUMBIA IN REFERENCE RE: SECTION 293 OF THE

CRIMINAL CODE OF CANADA, 2011 BCSC 1588 ……………………………26

Craig Jones, A Cruel Arithmatic: Inside the Case Against Polygamy

(Irwin Law, 2012) ……………………………………………………………….26

Edward W. Said, Orientalism (Vintage Books 1979)……………………………..16

Ibn Warraq, Defending the West: A Critique of Edward Said’s Orientalism

(Amherst: Prometheos Books, 2007)…………………………………………....16

Kristyn Decker, Fifty Years in Polygamy: Big Secrets and Little White Lies (Synergy, 2013)………………………………………………………………….26

Marci A. Hamilton, God vs. The Gavel: Religion and the Rule of Law 66-77(Cambridge, 2005) ………………………………………………………………26

Ruggero J. Aldisert, Logic for Lawyers, 185, 208 (NITA, 3d ed. 1997) …………...8

Sister Miriam Joseph, C.S.C., Ph.D., The Trivium: The Liberal Arts of Logic,

Grammar, and Rhetoric 203-05 (Paul Dry Books, ed.2002) (1937)….……….....8



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INTRODUCTION

The district court below declared unconstitutional the very prohibition on

polygamy and bigamy that Congress and the President made an irrevocable federal

condition of Utah’s admission to the Union. See Utah Enabling Act, Act of July

16, 1894, ch. 138, 28 Stat. 107, 108; see also Utah Const. Art. III; Id . Art. XXIV,

Sec. 2. (incorporating the so-called “irrevocable ordinance” forever banning

polygamy in recognition of Enabling Act’s requirement); Potter v. Murray City,

760 F.2d 1065,1067-70 (10th Cir.1985 ) (noting same). The statute at issue here,

Utah’s Bigamy Statute, Utah Code Ann. § 76-7-101 (the “Statute”), is the direct

decendent of the irrevocable ordinance, and exists under the federally mandated

directives of Utah’s constitutional provisions in Utah Const. Art. III and Art.

XXIV, Sec. 2.

No one disputes the history leading up to the conditions of Utah’s statehood.

Utah was granted statehood after the Supreme Court in Reynolds v. United States,

98 U.S. 145 (1878), declared constitutional the federal Morrill Anti-Bigamy Act

(1862) and rejected a Free Exercise Clause challenge to that statute. In so holding,

Reynolds clearly established that criminalizing bigamy or polygamy does not

offend free exercise rights. The Morrill Act was followed by the Edmunds Act

(1882) and the Edmunds-Tucker Act (1887); along with the Reynolds decision,

those statutes paved a way to Utah’s statehood upon condition. As this history



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shows, the “irrevocable” mandate contained in Utah’s Enabling Act—“that

polygamist or plural marriages are forever prohibited,” Ch. 138 § 3, 28 Stat.107,

108 (1894) — was an intentional, well-known, and thoroughly debated condition.

Utah has ever since lived with that condition and found that it curtails public harms

that flow from polygamist and plural marriages.

Reynolds and Potter are controlling precedent that should have made this

case an easy one. But the district court ignored that controlling precedent, and

after a thorough (if mistaken) inspection of non-binding legal precedents and

doctrines, declared the Statute unconstitutional, leaving Utah with irreconcilable

federal commands: to be a State, Utah must prohibit polygamy and bigamy; but it

may not (consistent with the United States Constitution) maintain a mechanism to

enforce those prohibitions. Brown v. Herbert , 850 F. Supp.2d 1240, 1243 (D. Utah

2012).

In the opposition brief,1 Plaintiffs’ counsel suggests that “it is ironic to see

Utah relying heavily on such a decision [as Reynolds] that is replete with offensive

and prejudiced statements directed at religious and racial minorities, particularly

Mormons.” Opp. at 14. The real irony this case presents is far more profound and

flows from the history outlined above: after the federal government conditioned

Utah’s statehood on the “irrevocable ordinance,” a federal district court judge has

1 For purposes of short-citing, Utah denotes citations to its opening as “Br. at X”,

and denotes the Plaintiffs’ opposition brief as “Opp. at X.”



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declared unconstitutional the provisions flowing from those conditions. The

United States, it seems, has met itself coming back.

In opposition to Utah’s appeal, Plaintiffs advance the following arguments:

(1) Reynolds and Potter are no longer good law and this panel is free to affirm the

district court’s decision on that basis; (2) this Court is not bound by Utah courts’

interpretation of Utah’s bigamy statute and those interpretations therefore not

relevant to this Court’s consideration; (3) Utah’s alternative to the district court’s

statutory construction of the bigamy statute should be rejected because it was not

advanced below; (4) Utah has waived a challenge to district court’s vagueness and

hybrid rights analysis; (5) the district court was correct to keep its analysis of the

two prongs bifurcated and to strike down the “cohabitation” prong even though

Plaintiffs contend heightened scrutiny should apply and that prong is void for

vagueness; (6) the district court was correct to find that the “cohabitation” prong

violated the free exercise clause, and Plaintiffs contend that the district court

correctly applied strict scrutiny but that the “cohabitation” provision would fail

rational basis scrutiny; (7) the district court correctly applied a hybrid-rights claim

analysis; and (8) the district court correctly found that Plaintiffs were entitled to

fees under Section 1983 and 1988.2

2 With respect to Plaintiffs’ point 8, regarding fees, Utah maintains that the issue is

moot; the district court has entered final judgment awarding fees to Plaintiffs, and

Plaintiffs have not pursued damages. The Parties have an arrangement on fees contingent



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Mr. Buhman, sued in his official capcity (“Utah”), answers these myriad

arguments in their order of significance and without improperly parcelling them, as

Plaintiffs have.

This Court should first address the question of whether Reynolds and Potter

are dispositive, because if the Court follows its own precedential treatment of those

two cases, then inquiry into the other issues treated in the briefing is unnecessary.

Only if the Court finds that it is not bound by Reynolds and Potter , and the

decisions of this court that mandate how a panel treats precedent, should this Court

even consider the other issues.

With respect to Plaintiffs’ item 2, Utah did not suggest that state case law is

binding precedent — only that it is instructive regarding how Utah courts have dealt

with similar challenges. Utah precedent further confirms that bigamy charges have

been filed against both religiously and non-religiously informed multiple partner

“marriages,” thus foreclosing the argument that the law improperly targets any

minority group, as the statutes are facially neutral and have been applied to both

religious adherents and non-believers alike. Utah does not treat this point in a

separate section as it has been explained here and it is clear from the opening brief

that Utah did not offer state cases as binding on federal courts.

on the outcome of the appellate process, but the issue of damages is now precluded by

rule and therefore moot. To extent the Court or Plaintiffs may find otherwise, Utah is

content to rely on its treatment of the issue in its opening brief.



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Plaintiffs’ item 3 regarding the alternative statutory construct offered by

Utah is relevant only if this Court believes that it is not bound by clear precedent.

The district court found that it had a duty to offer a narrowing construction of the

“purports to marry” prong of the Statute after it struct the “cohabitation” prong of

the statute as unconstitutional. Utah offers the alternative construction only in the

event that the Court for some reason departs from precedent. And contrary to

Plaintiffs’ argument, Utah did not waive this issue; Utah could not have advanced

this argument until the district court ruled and made clear that its narrowing

construction was based on legal error. As described in the opening brief, Utah’s

alternative construction is both consistent with the plain purpose of the the bigamy

prohibition and also avoids many of the constitutional concerns Plaintiffs raise.

Yet, the Court need not get to this point if it recognizes, as it should, that Reynolds

and Potter still control the disposition of this case.

Utah will address Plaintiffs’ points 4 through 7 last, after covering the topics

just outlined. The resolution of points 4 through 7 necessarily depends on the

Court’s finding that Reynolds and Potter do not bind the panel of the Court, and

that Utah’s alternate construction of the statute does not answer concerns of

vagueness or satisfy the requirement for a narrowing construction “that a federal

court must [perform] on a statute if it is readily susceptible to a narrowing

construction that would make it constitutional.” Citizens for Responsible Gov’ t



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State PAC v. Davidson, 236 F.3d 1174, 1194 (10th Cir.2000) (citation and internal

quotation marks omitted); accord Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

397 (1988).

ARGUMENT

I. Reynolds and Potter Are Binding Precedent That Compel Reversal

of the District Court’s Judgment

Plaintiffs’ defense of the district court’s decision necessarily depends on the

premise that Reynolds and Potter are no longer binding precedent — on the district

court or on this panel. If this panel disagrees with this premise, the district court’s

analysis is by definition reversible legal error. And this Court should disagree with

Plaintiffs’ premise. Circuit precedent forcloses it, as this Court has made

unwaiveringly clear: “[w]e cannot overrule the judgment of another panel of this

court. We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.” Barnes

v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015) (brakets in original,

citations omitted); accord Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir.

2014); In re United States, 10 F.3d 723, 724 (10th Cir.1993) (per curiam) (citing

United States v. Killion, 7 F.3d 927 (10th Cir.1993); United States v. Spedalieri,

910 F.2d 707, 710 n. 3 (10th Cir.1990) (a three-judge panel cannot overrule circuit

precedent); United States v. Berryhill , 880 F.2d 275, 277 (10th Cir.1989), cert.

denied , 493 U.S. 1049 (1990)).



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Three-judge panels of this Court routinely defer to prior panel decisions,

even when later panels have doubts about the continued validity of prior panel

decisions. This year ’s Barnes case makes the point: “we harbor some reservations

regarding whether our existing precedent … is good law. However, we are bound

by the precedent of prior panels absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.” 776 F.3d at 1147. The Barnes panel

harbored doubts regarding whether Tenth Circuit precedent was in accord with two

Supreme Court decisions that were related to, but not directly on point with, the

issue before the Court in Barnes. See id . at 1146-47. The Barnes panel ultimately

considered itself bound by prior panel precedent despite those two Supreme Court

decisions — and after noting that an en banc panel of the Ninth Circuit Court of

Appeals, and panels of the Seventh and First Circuit Courts of Appeal, came to a

different conclusion regarding the treatment of precedent on the exact same issue

called into question by the two Supreme Court cases. See id . at 1147.

This panel should follow that mode of analysis here. Under it, this panel

could affirm the district court’s judgment only by ignoring both the direct

applicability of Reynolds and Potter and this Court’s precedent requiring fidelity to

(even questionable) prior panel opinions. This Court should reject he Plaintiffs’

invitation to engage in those two legal errors and instead should reverse the

judgment below.



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A. Reynolds Is Binding on this Court and the District Court

In response to Utah’s argument that Reynolds controls here, Br. at 13-17; 32-

34, Plaintiffs employ argument by misdirection by asserting (without any citation

to a case directly on point) that “the Supreme Court [has rejected Reynolds’]

analysis” and holding that bigamy and polygamy may be criminalized. Opp. at 13.

Plaintiffs further attempt to argue based on two logical fallacies rather than the

law: (1) argumentum ad populum — the logical fallacy of appeal to emotion of the

people, arguing that because Reynolds includes what Plaintiffs’ counsel finds

“offensive” and (2) the logical fallacy of petitio principia, commonly called

argument by assertion or begging the question, saying that this Court should ignore

direct precedent because “ Reynolds is a legal relic that is widely condemned by

academics and rarely cited by the Supreme Court[] as a basis for substantive

constitution analysis,” id . at 13-14.3

Addressing the logical fallicies first, neither persuasively rebuts Utah’s

argument. Even assuming academics uniformly condemn Reynolds — and they do

not — uniform academic criticism has no bearing on whether Reynolds still controls

here. In fact, Plaintiffs’ point proves the opposite of its attempted assertion; as a

logical matter, there would be no reason for academics to condemn Reynolds if it

3 See Ruggero J. Aldisert, Logic for Lawyers, 185, 208 (NITA, 3d ed. 1997); Sister

Miriam Joseph, C.S.C., Ph.D., The Trivium: The Liberal Arts of Logic, Grammar,

and Rhetoric 203-05 (Paul Dry Books, ed.2002) (1937).



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were indeed a “dead relic.” Plaintiffs’ analysis does nothing to disturb the

foundation that Reynold and Potter were binding on the district court and are

binding on a panel of this Court. And the assertion that Reynolds is “rarely cited”

by the Supreme Court is a non-sequitur with respect to the issue of whether the

case remains good law. Id . at 13. Precedential vitality does not turn on frequency

of citation. On the contrary, a lack of further citation necessarily means that the

case remains good law.

Plainiffs’ argument by misdirection — their claim that the Supreme Court has

rejected the Reynolds analysis — is belied by the fact that Plaintiffs point to no

Supreme Court case so holding. In fact, close examination of Plaintiffs’ cited

authority is telling and amply demonstrates why their argument fails.

None of the authority Plaintiffs cite overrules Reynolds or even suggests that

Reynolds has been overruled. Plaintiffs first cite District of Columbia v. Heller ,

554 U.S. 570, 635 (2008), for the unremarkable proposition that cases of first

impression regarding the scope of a constitutional right — in Heller the right to bear

arms; in Reynolds the right to free exercise — should clarify the entire field of

inquiry into the scope of those rights. Opp. at 13, n.6. As is clear from the quoted

language from Heller in Plaintiffs’ brief, see id., Heller cited Reynolds to

demonstrate the Supreme Court’s awareness that Reynolds left open questions

regarding free exercise. Heller did not cite Reynolds to discuss the question it



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directly answered: that bigamy and polygamy could be criminalized in

conformance with the First Amendment. See id . Plaintiffs similarly miscite

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 574

(1993), where the quoted language similarly indicates that the Court recognizes

that early cases like Reynolds left open the precise contours of free exercise

protections and their limits. Opp. at 13, n.6. Hialeah, like Heller , thus stand for

the unremarkable proposition that cases of first impression do not answer all

questions regarding the scope of a given right; neither case purports to disturb

Reynolds’s holding that bigamy and polygamy may be criminalized. See id .

Finally, Plaintiffs cite Justice Douglas’s dissent in part in Wisconsin v. Yoder , 406

U.S. 205, 247 (1972) where Justice Douglas contended that Yoder ’s treatment of

the free exercise issue in that case “promises in time Reynolds will be overruled.”

Op. Br. at 13 n.6. But Plaintiffs again fail to cite a case confirming that Justice

Douglas’s prediction has in fact come to pass. And Plaintiffs’ citation to Yoder ’s

lone dissent-in-part itself demonstrates that the case similarly cannot stand for the

proposition that Reynolds does not still control the issue directly before this Court;

in fact, as a matter of logic and law, the citation proves just the opposite, as it

presumes Reynolds is good law until something happens in the future. That day

has yet to arrive.



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This Court need look no further than its own post- Lawrence case law to

confirm that Reynolds remains good law:

Plaintiffs’ substantive challenge to Utah’s criminal prohibition of polygamy faces a litany of seemingly insurmountable precedential

obstacles. Case law upholding the criminalization of polygamy fromconstitutional attack dates back at least to 1878, when in Reynolds v.United States, 98 U.S. 145, 162 – 66, 25 L.Ed. 244 (1878), theSupreme Court rejected a free exercise challenge to the Morrill Anti –

Bigamy Act of 1862. More contemporary decisions from the Supreme

Court and from this Court have acknowledged the continued validityof Reynolds. See Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 535, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citing

Reynolds as support for the proposition that adverse impact onreligion from operation of legislative enactment does not translate intoimpermissible religious targeting where “a social harm may have been

a legitimate concern of government for reasons quite apart from

discrimination”); Grace United Methodist Church v. City ofCheyenne, 451 F.3d 643, 649 (10th Cir.2006) (citing Reynolds with

approval).

Similarly, constitutional challenges to Utah’s criminal statuteoutlawing polygamy, Utah Code § 76 – 7 – 101, have failed. In Potter ,

this Court relied upon Reynolds in rejecting attacks that were

premised upon the Due Process and Free Exercise Clauses of theUnited States Constitution. See Potter , 760 F.2d at 1068 – 69. And the

Utah Supreme Court recently invoked Reynolds and Potter in holdingthat a defendant’s conviction under § 76 – 7 – 101 did not violate his

rights to association, to the free exercise of religion, and to substantive

due process, as guaranteed by the First and Fourteenth Amendments

to the federal Constitution. Holm, 137 P.3d at 741 – 49; see also Green,

99 P.3d at 825 – 30 (applying Reynolds and Potter to reject federal freeexercise challenge to § 76 – 7 – 101).

Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007). Bronson makes the

district court’s refusal to follow Reynolds —and the Plaintiffs’ arguments against

Reynolds’s continued vitality— particularly inapposite.



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Plaintiffs’ next citations to four law review articles critical of the Reynolds

decision offer no more compelling or controlling authority and constitute argument

via non sequitur . See id . at 14. As noted above, academic articles cannot overrule

Reynolds. Moreover, there would be no market for law reviews in academic

scholarship — even law review articles by Plaintiffs’ counsel— were Reynolds not

controlling. At best the articles Plaintiffs cite merely suggest that some have

criticized Reynolds’s rationale and premises. But criticism does not suggest, let

alone prove, that the Supreme Court has overruled Reynolds.

Plaintiffs’ remaining observations regarding Reynolds’s continuing vitality

fare no better than those already covered. Plaintiffs urge this Court to ignore

Reynolds because it is essentially an opinion that endorses morality-based laws

and, so Plaintiffs’ argument goes, such bases for legislation are “no longer

considered a valid basis for laws.” Opp. at 15. Plaintiffs argue that the Supreme

Court rejected such morality-based laws in Loving v. Virginia, 388 U.S. 1 (1967),

and Lawrence v. Texas, 539 U.S. 558 (2003). See id. Loving , as this Court well

knows, concerned the criminalization of miscegenation in marriage, a criminal

penalty based on racial distinctions not at issue here. Moreover, Loving did not

concern merely the “private relations,” which Plaintiffs continually (though not

consistently) assert are at issue in this case, but the public institution of marriage.

And as discussed in greater detail below, Lawrence concerned no social harm, as



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the Court found that private, consensual acts of sodomy did not warrant criminal

regulation because the alleged harm the statutes addressed did not outweigh the

limited fundamental privacy right recognized in that case. Thus, neither Loving

nor Lawrence controls the analysis here.

Moreover, Plaintiffs are incorrect about states’ abilities to criminally

regulate bigamy and polygamy for several separate and independent reasons. First,

the the Suprme Court has consistently continued to recognize after the Lawrence

decision that states retain broad police powers. See, e.g., Bond v. United States,

134 S.Ct. 2077 (2014) (“The States have broad authority to enact legislation for the

public good — what we have often called a ‘ police power.’”), quoting United States

v. Lopez , 514 U.S. 549, 567 (1995); Altria Group, Inc. v. Good , 555 U.S. 70, 77

(2008) (recognizing states’ retained police powers). Indeed, post- Lawrence, the

Supreme Court continues to recognize that the states retain “‘great latitude under

their police powers to legislate as to the protection of the lives, limbs, health,

comf ort, and quiet of all persons.’” Gonzales v. Oregon, 546 U.S. 243, 270 (2006)

(quoting Medtronic, Inc. v. Lohr , 518 U.S. 470, 475 (1996)). Unremarkably, this

Court recognizes the same: “‘The traditional police power of the States is defined

as the authority to provide for the public health, safety, and morals, and [the U.S.

Supreme Court has] upheld such a basis for legislation.’” Bushco v. Shurtleff , 729

F.3d 1294, 1304 (10th Cir. 2013) (finding that Utah had exercised proper police



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power in enacting its sexual solicitation statute), quoting Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 569 (1991).

Plaintiffs take issue with a state’s police power as a ground for criminalizing

bigamy and polygamy. Opp. at 15. Indeed, they argue that Utah below

“acknowledged that … ‘good order and morals in society’ is no longer considered

a valid basis for laws.” Id . (citing App. Vol. II at 413). Like Plaintiffs’ arguments

covered above, Plaintiffs’ point here again relies on a misreading of the text they

use to support their argument. Utah’s point in the quoted brief is only that courts

now treating the topic of polygamy and bigamy generally but not solely focus not

on “good order and moral” but rather more often focus on “social harms”

associated with those practices. App. Vol. II at 413, citing Bronson, 500 F.3d at

1105 (noting “social harm” reference in Hialeah); Utah v. Holm, 2006 UT 31, ¶

61, 137 P.3d 726, 744 (Utah 2006) (“social union our society deems . . . harmful”).

As noted below in the discussion of social harms associated with bigamy and

polygamy, social harms from bigamous and polygamous practies suffice to justify

their regulation.

B. Potter Is Binding on This Panel and the District Court

Just as they attempt to distinguish Reynolds, Plaintiffs also urge this Court to

ignore Potter — a prior Tenth Circuit panel opinion holding that the precise statute

at issue in this case was constitutional. See Br. at 32-34. Plaintiffs address the



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precedential weight of Potter only by stating that, at the time Potter was decided,

criminalization of homosexual relations was still considered constitutional and that

Potter predated the Supreme Court’s decision in Employment Division v. Smith,

494 U.S. 872 (1990).

These observations, again, provide no license for this panel to avoid a prior

Tenth Circuit panel’s holding on the very same issue — even if the later panel is

concerned about the continued legitimacy of the prior panel’s holding. See Barnes,

776 F.3d at 1147.

C. Plaintiffs’ Other Observations Regarding Precedent Are

Unpursuasive and Legally Irrelevant to the Analysis Here

Plaintiffs’ counsel also asserts that “it is ironic to see Utah relying heavily

on such a decision that is replete with offensive and prejudiced statements directed

at religious and racial minorities, particularly Mormons.” Id . at 14. But Utah’s

reliance on such a decision exhibits no irony at all. As mentioned, Utah’s

admission into the Union was predicated on the irrevocable condition that it

forever renounce and criminalize the practice of bigamy and polygamy. As a

consequence of these requirements in Utah’s Enabling Act, Utah was required to

include in its constitution the irrevocable provision that it would forever outlaw the

practice, which it has done. What is ironic is that a federal court would now tell

Utah that the necessary condition demanded by the federal government for the

State’s admission to the Union is itself unconstitutional, and that Utah now bears



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responsibility for legal provisions the federal government demanded because a

federal court finds them unconstitutional.

Plaintiffs also make much out of “venomous and biased” language they note

in Reynolds and repeatedly cite to that cases description of polygamy as “odious

among the northern and western nations of Europe, and, until the establishment of

the Mormon Church, was almost exclusively a feature of the life of Asiatic and of

Af rican people.” See, e.g., Opp. at 15, quoting Reynolds, 98 U.S. at 164. This

passage not only offends opposing counsel, but also concerned the district court

such that it agreed with some legal academics that the late English Professor

Edward Said’s work Orientalism was a “relevant interpretative framework for

evaluating the ‘crusade’ of nineteenth-century American society against Mormon

polygamy and the merits of the Reynolds decision today.” Brown, 947 F.Supp.2d

at 1147 (relying on Edward W. Said, Orientalism (Vintage Books 1979)).

Two things are of note here. The first is a strawman argument: language that

offends some has the consequence of making legal precedent, absent overruling,

have less authority. This is pure balderdash with no legally authoritative support.

The second is that, as noted above, an academic evaluation of Supreme Court

precedent is of no legal significance, and does nothing to devalue the legal

argument above that both Reynolds and Potter remain binding authority. This is

especially true of the work of Professor Said, who after his death was roundly



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criticized for his ahistorical comparisons and his generally slapdash dualisms, as

well as his promotion and commodification of the modern academic fetish for

examining microscopically the flaws and failings (real and imagined) of the West

while simultaneously portraying an ever-peaceful East perpetually victimized by

the technologically superior but, of course, morally benighted West. See, e.g., Ibn

Warraq, Defending the West: A Critique of Edward Said’s Orientalism (Amherst:

Prometheos Books, 2007).

The more salient point is that both counsel’s outrage and the district court’s

whole-hearted acceptance of Said’s perspective obscure what the Court in

Reynolds was actually doing in that section of the opinion — a point both Plaintiffs

and the district court miss. Following the “venomous and biased” passage is a

careful and often insightful discussion regarding how polygamy was received in

the common law, as the Court focused on a rather lengthy discussion of Chancellor

Kent’s Commentaries, which compared Anglo and Continental law to that of other

contries where possible. Reynolds, 98 U.S. at 14-15. Prior to the “venomous and

biased” passage, the Reynolds Court does the first extended analysis in American

jurisprudence of the contours of the right to free exercise. Id . at 13-14.

As with the previous points treated, this appeal to outrage does nothing to

logically advance an argument that Reynold and Potter do not still bind the district

court. This Court consequently should follow its own precedent and procedures



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and reverse the district court’s decision on the fundamental legal principle that

lower courts are bound by the decisions of higher courts.

II. UTAH’S ALTERNATIVE INTERPRETATION OF THE STATUTE

This Court’s review of the district court’s decision holding Utah’s bigamy

statute to be unconstitutional should occur under the settled doctrine that State

statutes enjoy a presumption of constitutionality. United States v. Monts, 311 F.3d

993, 996 (10th Cir. 2002); accord Heideman v. City of South Salt Lake, 348 F.3d

1182, 1190-91 (10th Cir. 2003); Hopkins v. Oklahoma Public Employees

Retirement System, 150 F.3d 1155, 1160 (10th Cir.1998). Plaintiffs challenging a

state statute’s constitutionality always bear the heavy burden of rebutting the

presumption of constitutionality, and courts refrain from second guessing

legislative policy makers in determining whether given provisions are

constitutional. See Hopkins, 150 F.3d at 1160. This presumption is as binding on

this Court as it is on the district court. See id. (“Of course, as this case challenges

the constitutionality of a state statute, we are constrained by the venerable

presumption that an act of a state legislature is generally taken to be constitutional,

and the burden is on the plaintiff to demonstrate how the statute transgresses the

requirements of the United States Constitution.”) (citation and internal quotation

marks omitted). Applying the presumption of constitutionality makes clear that

judicial review is not a search for mere policy disagreements:



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Constitutionality is a binary determination: either a law is

constitutional, or it is not. This Court will not express a qualitativeopinion as to whether a law is “good” or “bad,” “wise” or “unwise,”

“sound policy” or a “hastily-considered overreaction.” Similarly, this

Court will not assess what alternatives the legislature could havechosen, nor determine whether the enacted laws were the best

alternative. Such decisions belong to the people acting through theirlegislature. Put another way, in determining whether a law is

constitutional, this decision does not determine whether either law is“good,” only whether it is constitutionally permissible.

Col. Outfitters Assoc., 24 F.Supp.3d at 1055-56. Because the district court is

bound by Reynolds and Potter , neither the Plaintiffs nor the district court cited

controlling authority to suggest that the Statute was constitutionally infirm, and as

such the district court had no legal basis for departing from

Utah’s Enabling Act provides “that polygamist or plural marriages are

forever prohibited.” Ch. 138 § 3, 28 Stat.107, 108 (1894). As discussed above,

this led to the inclusion in the Utah Constitution provisions (not challenged in this

lawsuit by Plaintiffs) that “ polygamous or plural marriages are forever prohibited”,

Utah Const. Art. III, and Utah Const. Art XXIV, Sec. 2 providing:

All laws of the Territory of Utah now in force[.] The act of the

Governor and Legislative Assembly of the Territory of Utah, entitled,

‘An Act to punish polygamy and other kindred offenses,’ approvedFebruary 4th, A.D. 1892, in so far as the same defines and imposes

penalties for polygamy, is hereby declared to be in force in the Stateof Utah.

Id .



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The operative common dictionary at the time defined “Polygamy” as “A

plurality of wives or husbands at the same time, or the having of such plurality;

usually the condition of a man having more than one wife.” An American

Dictionary of the English Language 1009 (Noah Webster ed. 1886). “Polygamist”

is defined as “A person who practices polygamy, or maintains its lawfulness.” Id .

“Marriage” is defined as “the act of being married; union of man and woman as

husband and wife.” Id . at 814. And the verb to “Marry” is: “To enter in the

conjugal or connubial state; to take a husband or a wife.” Id . “Conjugal” means to

“unite or join in marriage.” Id . at 275. And “Connubial” means “pertaining to the

marriage state.” Id . at 277.

Each of these definitions accord with the Green Court’s analysis of

cohabitation in the Statute, as they entail living persons living together in a sexual

relationship, but the Polygamy definition adds the condition of plurality, which the

Green Court noted was the purpose of the Statute: to prevent any and all indication

of multiple simultaneous marriages. Green, 99 P.3d at 832. As the Statute was

designed to make sure Utah kept the federal mandate in the Enabling Act, it is

unambiguous as a matter of plain language and historical inquiry that what is

banned is the public practice of polygamy. To the extent that this Court might be

troubled by any ambiguity in the Statute, the interpretive canons of avoidance of

constitutional results and avoidance of absurd results, Br. at 35-37, and to the



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extent this Court shares any concern regarding how the Statute ought to be

interpreted, counsel relies on the points advanced in the opening brief.

Plaintiffs object to what they see as rewriting the Statute, but the district

court did just that in excising half the statute and interpreting the other half to

cover marriage license fraud,4 hardly what was intended by either the federal

government or the Utah legislature and Governor, when one party conceived of the

irrevocable ordinance and the other carried it over, from territory to statehood as

required, to give it legal force. The district court’s construction leaves us with an

absurd result; Utah’s alternative, which is only relevant should this Court find

Reynolds and Potter are not binding, follows the intention of the ordinance as

expressed in the Utah Constitution and the Statute.

Plaintiffs’ protestations aside, “[i]t is a standard canon of statutory

construction that words separated by the disjunctive are intended to convey

different meanings unless the context indicates otherwise.” Mizrahi v. Gonzales,

492 F.3d 156, 164 (2d Cir. 2007) (citing Reiter v. Sonotone Corp., 442 U.S. 330,

339 (1979)). This is a standard consideration court’s undertake in statutory

interpretation, see generally 1A Norman J. Singer, SUTHERLAND’S STATUTES AND

4 Plaintiffs’ seem concerned that Utah’s bigamy statute under such a reading might

cover actual polygamy and plural marriage — required by the Enabling Act — but

leave Utah open to situations where “a person could how two, six, or ten marriage

licenses licenses with the state but not commit a crime under the statute unless

they [sic] cohabitated.” Opp. at 11. Counsel has faith that Utah’s politicians are

able enough to craft additional legislation to stop simple marriage license fraud.



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STATUTORY CONSTRUCTION § 21:14 (7th ed.2014) (discussing general rule and

departures from it), and the principle is so commonly recognized it is effectively

ubiquitous as a tool of statutory interpretation in American courts.5 If this Court

finds the need to interpret the Statute, Utah’s suggestion is the way to ensure it

avoids any constitutional problems this Court might find unaddressed by Reynolds

or Potter .

5 See, e.g., Union Ins. Co. v. United States, 73 U.S. 759, 764 (1867) (reading ‘or’ to mean

‘and’ to “carr[y] into effect the true intention of Congress”); Dague v. Piper AircraftCorp., 418 N.E.2d 207, 211 (Ind. 1981) (holding that “or” in a statute should be read as

the conjunctive ‘and’); Shinn v. Heath, 535 S.W.2d 57, 62 (Ark. 1976) (“To carry out the

general purpose and intent of a statute, either civil or criminal, the words ‘and’ and ‘or’

are convertible.”); Sale v. Johnson, 129 S.E.2d 465, 470 (North Carolina 1963) (holding

that “the word ‘or’ must be taken conjunctively and construed as ‘and’” to effectuate

legislative intent); Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 698-99 (Ky. 1961)

([S]ince the popular use of the words ‘or’ and ‘and’ is loose and frequently inaccurate,

the courts may and should change ‘and’ to ‘or,’ and vice versa, whenever such

conversion is required, inter alia, to effectuate the obvious intention of the Legislature

and to accomplish the purpose or object of the statute.”); Garratt v. City of Philadelphia,127 A.2d 738, 740 (Penn. 1956) (“‘Or’ should be construed to mean ‘and’ when to give

the word ‘or’ its ordinary meaning would be to produce a result that is absurd or

impossible of execution or highly unreasonable or would manifestly change or nullify the

intention of the legislative body.”); Williams v. State, 137 S.W. 927, 928 (Ark. 1911)

(construing ‘or’ to mean ‘and’ to fulfill the courts “duty to give meaning and effect . . . to

each word and phrase of the statute”).



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III. PLAINTIFFS’ OTHER ARGUMENTS ARE UNPURSUASIVE FOR

THE REASONS ALREADY ARTICULATED AND UTAH HAS AN

INTEREST IN ADDRESSING THE HARMS ATTENDANT TO

PLURAL MARIAGES

A. Plaintiffs’ Asserted Fundamental Right is Nonexistent

Regarding almost every other concern voiced in Plaintiffs’ opposition brief,

Utah has covered them and stated its position in Utah’s opening brief. Yet Utah

must address Plaintiffs’ treatment of Seegmiller and Plaintiffs’ claim to a

constitutional privacy right to “family decisions to organize child-rearing and

romantic relationships among multiple partners in addition to Mr. Brown’s single

legal spouse.” Opp. at 29. Plaintiffs’ also place an emphasis on privacy rights of

“conduct in the home”, id ., and a “group’s freedom to choose its own marriage

structure — so long as its participants are consenting adults”, id . at 50. Plaintiffs’

continued appeals to the private nature of their action are belied by their earlier

representations to the district court, which claimed that they brought their own

threat of prosecution “not by being known as polygamists but by being very public

polygamists.” App. Vol. II at 389. Plaintiffs cannot have it both ways, claiming

privacy rights not recognized by Lawrence, and then also making their case public

in media covering “The Sister Wives.” Doing so certainly violates the mandates of

the irrevocable ordinance that has governed Utah from its territorial days to the

present.



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Plaintiffs’ description of the fundamental right at issue also does not meet

the standard of Washington v. Glucksberg , 521 U.S.702 (1997), which requires

“careful description of . . . the asserted liberty interest”, id . at 721, and a showing

that the asserted right is “objectively, deeply rooted in this Nation’s history and

tradition, and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed.” Id . Plaintiffs made no showing below;

nor do they here.

Nor have they met this Court’s interpretation of the Lawrence standard in

Seegmiller . The district court and the Plaintiffs try to distinguish Seegmiller by

limiting it to the fact that it involved a police officer who raised a claim to sexual

privacy in the context a reprimand for off duty conduct, and stating that the only

thing that justified his reprimand was violating the law he was sworn to uphold.

Opp. at 25, citing Brown, 947 F.Supp. 2d at 1201. Utah has already described the

reasons Seegmiller governs, Br. at 47, and both the district court and the Plaintiffs

misread the factual example of the rule in application as the rule itself. Seegmiller

could not have found an extended right to private sexual conduct, as if that right

were indeed fundamental, the mere fact that a police policy prohibited it would not

save that policy as a constitutional matter.



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B. The Harms Attendant to Polygamous and Bigamous

Practices are Legitimate Subjects of Utah’s Police Powers

Seegmiller also demonstrates that such inchoate claims to a privacy right are

subject to rational basis review and nothing more. There is ample evidence to

support a governmental interest satisfying rational basis or even heightened

scrutiny. Plaintiffs’ counsel seems to be of a mind that this Court does not accept

for evidence of governmental interest, studies, cases and other materials that can

justify the basis for the distinctions made by the government in support of the law.

For this reason, Plaintiffs take issue with references regarding harm made by

Amicus Sound Choices Coalition regarding issues that were not the subject of the

distr ict court’s opinion. This position both assumes that the opinion may not be

overturned on appeal, and moreover ignores the fact that this Court just last year in

Kitchen v. Herbert , 755 F.3d 1193, 1219-29 (10th Cir. 2014), allowed precisely

such citations to studies in order to demonstrate either a rational or compelling

bases for the governments distinctions at issue.

Counsel for Plaintiffs states that he served as a legal expert in the Canadian

case mentioned by Sound Choices Coalition. Opp. at 72, n.27. He suggests that

the Candian Court did not explore the harm done by plural relationships in both

jurisdictions, and others. Id . This is false. See 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.


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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Indeed, the Canadian Court finding arguments advanced here regarding absence of

harm unpersuasive. See id . at paras. 885-86.

Counsel also suggests that it is somehow unfair to discuss individual cases

like that of Warren Jeffs. But that is what the boots on the ground fact of bigamy

and polygamy can look like, and it is one reason the irrevocable ordinance

recognized as perfectly constitutional in Reynolds and Potter remains fully

supportable and in conformity with the Constitution today. Whether addressed in a

case like State v. Geer , 965 P.2d 1(Utah Ct. App. 1988), which did not involve

religiously associated plural marriage, or in a case that the Utah Attorney General’s

office has been handling for years, In re Matter of United Effort Plan Trust , civil

no. 053900848, Utah Third District Court, in which the office has attempted to

manage a community ravaged by untold fraud and other crimes associated with

larger polygamous groups, the harms are real. See also e.g., Marci A. Hamilton,

God vs. The Gavel: Religion and the Rule of Law 66-77 (Cambridge: 2005); Craig

Jones, A Cruel Arithmatic: Inside the Case Against Polygamy (Irwin Law, 2012);

Kristyn Decker, Fifty Years in Polygamy: Big Secrets and Little White Lies

(Synergy, 2013). Counsel invites the Court to read these works as well as

opposing counsel’s recent law review article. Compare the accounts of the

possible harms attendant to bigamy and polygamy. The comparisons will show



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that the exercise of Utah’s traditional police powers is justified and, as noted in

Reynolds and Potter , perfectly consitutional.

CONCLUSION

For the reasons covered here and in the opening brief, this Court should

reverse the district court’s grant of summary judgment to the Plaintiffs, vacate the

permanent injunction, and remand with any instructions the Court finds

appropriate.

Respectfully submitted this 5th Day of October 2015.

/s/Parker Douglas

PARKER DOUGLAS

Utah Federal Solicitor

Utah Attorney General’s Office

350 North State Street, Ste. 230

Telephone: 801.538.1191

[email protected]


mailto:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

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

32(a)(7)(B) because:

[x] this brief contains 6570 words, excluding the parts of the briefexempted 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:

[x] this brief has been prepared in a proportionally spaced typeface usingWord in 14 point Times New Roman font.

/s/Parker Douglas

ECF CERTIFICATIONS

Pursuant to Section II(I) of the Court’s CM/ECF User’s Manual, theundersigned certifies that:

1. all required privacy redactions have been made;

2. hard copies of the foregoing brief required to be submitted to the clerk’soffice are exact copies of the brief as filed via ECF; and

3. the brief filed via ECF was scanned for viruses with the most recentversion of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses.

/s/Parker Douglas



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CERTIFICATE OF SERVICE

I hereby certify that on the 5th of October, 2015, a true, correct and complete

copy of the foregoing Brief of Appellants and Addendum consisting of the Joint

Appendix was filed with the Court and served on the following via the Court’s

ECF system:

Pursuant to Section II(I) of the Court=s CM/ECF User =s Manual, the undersigned

certifies that all required privacy redactions have been made and this document

was scanned for viruses with the most recent version of Microsoft SecurityEssentials v. 2.1.111.6.0, and, according to the program, is free of viruses.

The undersigned also certifies that on October 5, 2015, a true, correct and complete

copy of this document was filed with the Court and served on the following via theCourt’s ECF system:

Jonathan Turley

2000 H St., N.W.

Washington, D.C. 20052202-994-7001 [email protected]

Adam Alba

170 S. Main Street Ste. 850Salt Lake City, UT 84101

[email protected]

/s/Parker Douglas

mailto:[email protected]:[email protected]:[email protected]

Documents

Utah reply brief in Sister Wives case