No SCOTUS Review of Sister Wives Family Bigamy Challenge.

No SCOTUS Review of Sister Wives Family Bigamy Challenge.

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A challenge to Utah’s bigamy statute has now come to an end after the U.S. Supreme Court chose not to review a holding of the U.S. Court of Appeals for the Tenth Circuit that restored Utah’s bigamy law to its previous form on procedural grounds.[1] This case received attention in part because of its famous plaintiffs—the Brown family, the subject of the TLC show Sister Wives. A federal district court had sided with the Browns and partially struck down Utah’s bigamy law as unconstitutional, but the Tenth Circuit overturned the decision on standing and constitutional mootness grounds.[2] For our coverage of the Tenth Circuit opinion, see our May 2016 post: 10th Circuit Revives Utah Bigamy Law in Sister Wives Case (5-18-16).

Bigamy Law in Utah

Given the procedural issues, the merits of the suit were not addressed beyond the district court. The challenged bigamy statute, Utah Code §76-7-101(1), was broad in its scope. It reads:

76-7-101. Bigamy – Defense.
(1) 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.[3]

The U.S. District Court for the District of Utah struck the “cohabitation” prong, the provision expanding the statute’s prohibition beyond only banning multiple marriages, holding that this prong violated the Free Exercise Clause, lacked a rational basis under the Due Process Clause, and was void for vagueness.[4] The court also held that the “purport to marry” prong must be narrowly construed to survive constitutional scrutiny, i.e., “purport to marry” could only mean an individual’s claim to a second marriage that would be recognized by the state as a marriage.[5] But because the district’s court decision was ordered vacated by the Tenth Circuit, the statute provision above remains in effect.

Bigamy Law in Texas

In Texas Penal Code, bigamy is defined, in part, as follows:

PEN §25.01. Bigamy

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

(b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either part. …[6]

The Texas code’s specificity distinguishes it from the Utah Code, avoiding some of the issues that triggered the initial constitutional challenge to the Utah Code. Although it uses the “purport to marry” language at issue in the Utah case, it does not include the bare “cohabitation” language that the federal district court found objectionable.

For Texas Penal Code §25.01, and the rest of the annotated Texas Penal Code, let O’Connor’s Texas Criminal Codes Plus  be your first source for the law.


[1] SCOTUSblog, Brown v. Buhman, Docket (No. 16-333).

[2] Brown v. Buhman, 822 F.3d 1151 (10th Cir.2016).

[3] Utah Code §76-7-101(1). Note that legislation amending this section has been introduced in Utah’s 2017 legislative general session to modify the statute in a way that could address some of the U.S. district court’s concerns. See H.B. 99, 2017 Leg., Gen. Sess. (Utah 2017) (introduced).

[4] Brown v. Herbert, 43 F.Supp.3d 1229, 1233 (D.Utah 2014).

[5] Id.

[6] Tex. Pen. Code §25.01(a), (b).

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