Shades of Ichabod Crane: Scalia’s Ghost Rides Again!
CA10‘s Refusal to Decide Polygamous Cohabitation
Issue Possibly Tainted by Substantive Opinions
A decision from a federal court of appeals last month illustrates the serious obstacle that standing sometimes presents to federal constitutional plaintiffs outside of the free speech context. The Tenth Circuit reversed the district court’s opinion, which had granted thepolygamous plaintiffs relief and declared a Utah law against cohabitation unconstitutional.
Perhaps more interestingly, however, the opinion may illustrate the relatively plastic nature of the “standing” doctrine which so often “stands” as a barrier to relief in these cases, because one may speculate (as the author of this blog does herein) that the Tenth Circuit panel was influenced as much by unspoken skepticism regarding the constitutional claims made my the plaintiffs as they were by that jurisdiction’s ideas about standing.
Notably, the law challenged in the case could be described in legal jargon as “a law of general application,” meaning that it did not appear to single out anybody’s viewpoint or religion for discriminatory treatment; nor did it explicitly create any restrictions on speech.
The district court opinion in the case, Brown, Sullivan, et al v Buhman, 14-4117 (CA 10 2016), had been foreseen by the late Justice Antonin Scalia as a logical consequence of the Supreme Court’s recent landmark opinions on gay freedom and equality.
But in reversing, the federal appeals court panel may have reasoned that the relief that plaintiffs were given in the district court by the defendant law enforcement agencies (an enforceable promise not to enforce the law being challenged) was much more protective to the plaintiffs than the likely decision the panel would issue, had they decided the case. (I assume the panel would have held that there is no right under the U.S. constitution to live together as a spiritually polygamous family).
Therefore, the panel may have reasoned, the plaintiffs had nothing to complain about. For that reason, the panel may have been more inclined to stretch to find a lack of standing.
The case was filed under 42 USC 1983 by Kody Brown and his companions, the stars of the famous reality television series, ‘Sister Wives.’ The complaint alleged that upon the airing of the series, local law enforcement officers in Lehi, Utah “opened an investigation of” the plaintiffs in 2010. It seems that after scary comments were made by law enforcement agents, the plaintiffs moved to Nevada in 2011.
The Browns and companions sought relief in the local district court, challenging Utah Code § 76-7-101 (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.”
According to the Court of Appeals, the case suffered from “mootness” (a doctrine related to standing), because the Utah Attorney General has a pre-existing policy against initiating prosecutions for Mormon cohabitation in the absence of abuse, fraud or other crimes. The local attorney general created a similar policy while the case was pending in the district court.
Importantly, the Tenth Circuit said, both law enforcement policies were accompanied by affidavits filed in federal court and sworn under penalty of perjury, and, if necessary, the federal courts could enforce them using federal laws like 18 U.S.C. § 401(2) to sanction the individual officials who were being sued, either for perjury or by entering punishments such as a fine or imprisonment for “misbehavior.”
Now let’s examine some reasons that the panel might have reached a contrary result.
First, let me reiterate that this was not a challenge to a law which implicated free speech on its face. In such cases, the requirements of standing are greatly relaxed. Instead, as mentioned above, Utah Code § 76-7-101 is “generally-applicable”: it neither singles out any religion or viewpoint for disparate treatment, nor does it appear to proscribe speech, at least not at first glance.
Because the challenged statute was treated as a state law “of general application,” the plaintiffs also had a harder time challenging it as a burden on their religious beliefs. If instead they were challenging a federal law, the federal government would have to show a compelling interest in upholding the law, because in creating the Religious Freedom Restoration Act (RFRA), Congress voluntarily limited the application of its laws when they impose a substantial burden on an individual’s religious beliefs, even if the law in question is one of general application.
But the Supreme Court has held that RFRA does not apply to the states, because RFRA is not required by the Constitution, and Congress lacks authority to impose it on the states (like Utah).
What this means is that Mormons do not have a right under the federal constitution to live together in spiritually polygamous cohabitation, unless everyone has that right. Theoretically, it seems, the plaintiffs in the case could have argued that even though the law looks generally-applicable on its face, it had previously been applied in a discriminatory manner. But the court of appeals engaged in a cursory, desultory discussion of that question, and suggested that the state’s description of its policies was made in good faith.
The court also said that because the complaint described an alleged past injury (the plaintiffs’ move to Nevada), they could have brought a damages action. That might have forced the constitutional issue, but the court said the plaintiffs chose not to do so.
So what arguments for finding standing did the Tenth Circuit overlook?
For one thing, the appeals court stretched the facts a little bit, by crediting the declaration of Kody Brown (“[w]e have decided to stay in Nevada in the foreseeable future”), and giving less credence to that of Janelle Brown, who declared “that were the statute declared unconstitutional, the plaintiffs ‘would certainly resume [their] open participation in [their] religious community’” in Utah. Apparently the Tenth Circuit decides who wears the pants in the Brown household.
The court also stretched the law a little bit. It was important to the appellate court panel that the dismissal was not on the merits, and without prejudice, because while any future law enforcement officers were free to change Utah’s policy regarding enforcement of § 76-7-101, “any steps to reconsider would almost certainly provoke a new lawsuit[.]”
Perhaps the court was being a little disingenuous in that regard, however; if the Utah authorities were somehow to decide to prosecute the plaintiffs, imagine what difficulty the household would have in ever getting the case back into federal court. A host of preclusion doctrines would prevent the federal court from interrupting criminal proceedings that had already been initiated. While there can be a federal habeus corpus action, it only lies while an individual is still imprisoned, and after they have exhausted state avenues of relief. Were they to be prosecuted, the plaintiffs would be unlikely ever to get their case heard in federal court, unless the state judge were to impose a relatively long sentence.
So what could have biased the court of appeals in favor of holding that the plaintiffs lacked standing in the case? The court explained that “voluntary cessation” of a practice can make a case moot, but only if the government bears the “heavy burden” of showing it has no desire or intention to return to “the old ways.”
The heart of the plaintiff’s grievance was an argument that individuals enjoy a due process right “to freely make personal decisions relating to procreation, contraception, family relationships, and child rearing,” as well as an argument about vagueness. But as I mentioned above, the Tenth Circuit may have held an unspoken opinion that there is no such constitutional right to spiritually polygamous cohabitation.
In fact, the Supreme Court held in Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878) that there is no constitutional right for Mormons to engage in religiously- motivated polygamy. But Mr. Brown and his companions did not apply for or hold marriage licenses. What about mere cohabitation?
No right for consenting adults to live together, you say? Believe it or not, the Supreme Court has never decided that issue. The court came close in McLaughlin v. Florida, 379 US 184 (1964), in striking down a law proscribing interracial cohabitation, but also explained that the holding was rooted in equal protection, not a liberty interest. See also Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (denial of special use zoning permit to group home for the mentally retarded was a violation of equal protection).
But everybody’s doing it, right? It seems that a constitutional right of adults to live together is simply one of those issues that the court has transcended, without ever actually deciding it, perhaps because it has come to seem so obvious.
Nonetheless, polygamy was listed among a parade of horribles cited as a justification for upholding anti-gay laws by Justice Scalia in his dissent in Lawrence v. Texas, 539 US 558 (2003). Perhaps that alone made the Brown case more controversial for the Tenth Circuit.
For an example of another lovestyle which a federal court recently held was not protected by the U.S. Constitution, see Doe v Rector and Visitors of George Mason University, 1:15-cv-209 (D.C. VA 2016) (no right to engage in consensual S&M under U.S. Constitution).
John Otrompke, JD, a graduate of DePaul University College of Law, and a 2015 AALS FAR applicant, may be reached at John_Otrompke@yahoo.com
