SALT LAKE CITY — A county clerk can legally refuse to issue a marriage license for a polygamous union, a federal judge has ruled, turning aside the argument that a landmark Supreme Court decision overturning anti-sodomy laws should also be applied to plural marriage.
On Feb. 15, U.S. District Judge Ted Stewart rejected the argument that Utah's ban on polygamy violates constitutional rights of religion and privacy, saying the state has an interest in protecting monogamous marriage.
The judge emphasized his ruling was about marriage, not personal sexual conduct. He cited cases as far back as an 1878 Supreme Court ruling upholding the polygamy conviction of George Reynolds, personal secretary to Mormon pioneer leader Brigham Young.
The ruling in Bronson v. Swensen upheld a decision by the Salt Lake County Clerk's Office in December 2003 to refuse a marriage license for a couple in which the man was seeking a second wife. He, his wife and the would-be second wife all joined in the suit, saying plural marriage is a central tenet in their religious beliefs.
Stewart said the 2003 Supreme Court ruling in Lawrence v. Texas, which found that a Texas anti-sodomy law violated the privacy of consenting adults, did not apply to the Utah case.
"Contrary to plaintiffs' assertion, the laws in question here do not preclude their private sexual conduct," Stewart said. "They do preclude the state of Utah from recognizing the marriage ... as a valid marriage under the laws of the state of Utah."
Attorney Brian Barnard said his clients — identified as G. Lee Cook, his wife, D. Cook, and his would-be second wife, J. Bronson — would appeal Stewart's ruling to the 10th U.S. Circuit Court of Appeals and, if necessary, the Supreme Court.
The Church of Jesus Christ of Latter-day Saints practiced polygamy in the 19th century but abandoned it when Utah sought statehood. Its prohibition was written into the state's constitution. Today, the Mormon Church excommunicates members who advocate polygamy, but there may be as many as 30,000 adherents in the West.