Utah Trio Asks Appeals Court to Overturn Polygamy Ban

DENVER – A Utah couple and a woman who wants to become the second wife in their family are asking a Denver-based federal appeals court to overturn Utah's ban on polygamy, saying it violates their rights to religion, association and privacy.

A Salt Lake County clerk refused to issue a marriage license in December 2003 when G. Lee Cook and the second woman — accompanied by Cook's wife — applied. About a year later, a federal judge dismissed their lawsuit, saying the clerk properly followed state laws and rejecting arguments that those laws violate the rights of people who believe in plural marriage.

On Monday, a three-judge panel of the 10th U.S. Circuit Court of Appeals formally accepted written arguments submitted earlier this year. There was no indication when they might rule.

The case is being watched by adherents of plural marriage, who hope it will be eventually taken up by the U.S. Supreme Court, which last considered the issue in 1878, said Mary Batchelor of Sandy, Utah, executive director of the group Principle Voices.

"It's time for it to be readdressed," she said in an interview. "We live in a society of family arrangements that simply are, no matter how people want to define them. They are not labeled criminal and we don't believe our family arrangements should be labeled criminal either."

Attorney Brian Barnard, who represents the Cooks and the other woman, identified only as J. Bronson, wrote that Utah's ban on polygamy is unconstitutional despite numerous court rulings, including an 1878 ruling by the U.S. Supreme Court upholding the polygamy conviction of George Reynolds, personal secretary to Mormon leader Brigham Young.

"The sincere and deeply held religious beliefs of J. Bronson, D. Cook and G. Lee Cook are that the doctrine of plural marriage, i.e., a man having more than one wife, is ordained of God and is to be encouraged and practiced," Barnard wrote.

He argued that the state's ban unconstitutionally targets one religion, and that under a 2003 U.S. Supreme Court ruling striking Texas laws banning sodomy, polygamy is a private interest that should not be prosecuted.

"The [Supreme Court] found no compelling state interest in criminalizing homosexual sodomy based on a long history of states and/or a majority of society finding the practice immoral. Similarly, the state of Utah can offer no compelling justification for criminalizing polygamy," Barnard wrote.

"Utah's criminalization of religious polygamy, even if the crime is rarely prosecuted, brands plaintiffs as criminals and sanctions public and private discrimination based on plaintiffs' religious based choice of marital relationship," he wrote.

In her brief, Assistant Utah Attorney General Nancy Kemp said the state's anti-bigamy law affects all residents, not just members of fundamentalist Mormon sects who continue to hold those beliefs despite a decision by the mainstream Church of Latter-day Saints to abandon the practice more than 100 years ago.

"Nothing in the statute suggests that it is to be applied only in the context of religiously motivated plural marriage, and, in fact, it has been applied outside the context of religion," Kemp wrote.

Polygamy has been practiced in Utah since the 1800s, when early members of The Church of Jesus Christ of Latter-day Saints settled the Salt Lake valley. The faith officially abandoned the practice in 1890, although it continued among members who splintered away from the main church.