Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 1

No. 14-4117
In the United States Court of Appeals for the Tenth Circuit

JEFFREY BUHMAN, in his official capacity,

Appellant-Defendant,
v.
KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN
and ROBYN SULLIVAN,
Appellees-Plaintiffs.

On appeal from the U.S. District Court for the District of Utah,
Honorable Clark Waddoups presiding, Case No. 2:11-CV-00652-CW
BRIEF FOR AMICUS CURIAE SOUND CHOICES COALITION, INC.
SUPPORTING APPELLANT-DEFENDANT AND REVERSAL
Christian Kesselring (USB #13773)
P.O. Box 866
Heber City, Utah 84032
Telephone: 435-657-0185
christian@wasatchlawgroup.com
Counsel for Amicus Curiae Sound
Choices Coalition, Inc.

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 2

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate
Procedure, Amicus Curiae Sound Choices Coalition, Inc. (SCC) hereby states
that it has no parent corporation, nor any publicly held corporation that owns 10%
or more of its stock.
IDENTITY, INTEREST AND AUTHORITY TO FILE
Pursuant to Rule 29(c)(4) of the Federal Rules of Appellate Procedure, SCC
hereby states that it is a nonprofit organization dedicated to raising awareness and
bringing an end to the damaging practices commonly associated with polygamist
communities. To these ends, SCC advocates on behalf of victims of these abuses
through legal action, legislative lobbying, and an overall proactive approach to
promoting just and stable societies. As such, SCC and its constituents are greatly
concerned with the issues now before the Court. The source of SCCs authority to
file is the parties consent.
RULE 29(c)(5) STATEMENT
Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure, SCC
states that its counsel authored this brief in whole, and that no person other than
SCC, its members, or its counsel contributed money that was intended to fund
preparing or submitting this brief.

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 3

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT......................................................i
IDENTITY, INTEREST AND AUTHORITY TO FILE ......................................i
RULE 29(c)(5) STATEMENT .................................................................................i
TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iii
ARGUMENT ............................................................................................................1
I. UTAHS PROHIBITION OF BIGAMOUS COHABITATION IS JUSTIFIED BY THE HARMS OF THE
PRACTICE. .................................................................................................................................................. 1
A.

The well-being of children is a compelling governmental interest............................................... 2

B. Utahs bigamy statute is narrowly tailored to advance the interest of protecting childrens
well-being.............................................................................................................................................. 3
C.

Bigamous cohabitation imposes serious harm to childrens well-being. ..................................... 5

D.

The well-being of mothers directly impacts that of children. ...................................................... 8

CONCLUSION ........................................................................................................9
CERTIFICATE OF COMPLIANCE WITH RULE 32 .....................................11
CERTIFICATE OF COMPLIANCE WITH CM/ECF MANUAL ..................12
CERTIFICATE OF SERVICE ............................................................................13

ii

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 4

TABLE OF AUTHORITIES
Cases
Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006) ....................................3
Brown v. Buhman, 947 F. Supp.2d 1176 (D. Utah 2013) ................................. 3, 4, 5
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ..........1
Palmore v. Sidoti, 466 U.S. 429 (1984) .....................................................................3
Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008) .....................................4
State v. Holm, 2006 UT 31, 137 P.3d 726 .................................................................3
Statutes
Utah Code Ann. 76-7-101 .......................................................................................1
Other Authorities
J. Henrich et al., Review, The puzzle of monogamous marriage, Phil. Trans. R.
Soc. B. (2012) .....................................................................................................6, 9
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588
....................................................................................................................... passim
Thomas Buck, Jr., Comment, From Big Love to the Big House: Justifying AntiPolygamy Laws in an Age of Expanding Rights, 26 Emory Intl L. Rev. 939
(2012) ..................................................................................................................2, 8

iii

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 5

ARGUMENT1
Whatever level of constitutional scrutiny the Court applies to Utahs
bigamy statute, Utah Code Ann. 76-7-101, its analytical focus will eventually
turn to identifying and qualitatively evaluating the governmental interests
implicated by the criminalization of cohabiting when one or the other cohabitant is
married. SCC defers to the able expositions by both Appellant and Amicus Eagle
Forum Education & Legal Defense Fund with regard to the former analysis, and
generally agrees that the Court should hold the bigamy statute both facially and
operationally neutral under Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993). SCC hopes here to aid the Court with a better development
of the latter part of the analysis with regard to governmental interests.
I.

UTAHS PROHIBITION OF BIGAMOUS COHABITATION IS

JUSTIFIED BY THE HARMS OF THE PRACTICE.
As observed by the Supreme Court of 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,
the right answers to constitutional questions like those presented here frequently
depend upon how the problem is framed, and in the matter of polygamy the
problem is all about harm. Having reached that conclusion, and relying upon the

SCC adopts the facts stated in Appellant-Defendant Jeffrey Buhmans brief.

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 6

most comprehensive judicial record on the subject ever produced, that court
concluded that harms to women, children and society in general are inherent in
the practice of polygamy. Reference at para. 5-6. Due to the rigor and breadth of
this Canadian provincial courts analysis, SCC relies heavily on its opinion in this
brief.
The harms imposed by bigamous cohabitation on women, children and
society at large of which several are outlined below are well documented and
present ample reason for states to ban the practice. Should the Court disagree with
the well-considered arguments for rational basis review under the Free Exercise
Clause, and apply strict scrutiny, the prevention of these harms is nothing if not
compelling. See Thomas Buck, Jr., Comment, From Big Love to the Big House:
Justifying Anti-Polygamy Laws in an Age of Expanding Rights, 26 Emory Intl L.
Rev. 939, 996 (2012) ([t]he harms flowing from polygamy are too evident to
ignore and too serious to allow to occur under the guise of fundamental rights),
available at
http://law.emory.edu/eilr/_documents/volumes/26/2/comments/buck.pdf.
A. The well-being of children is a compelling governmental interest.
While SCC does not concede that Utahs bigamy statute should by any
means be subjected to strict scrutiny, it is important to note that existing precedent
clearly identifies safeguarding childrens well-being as a compelling governmental
2

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 7

interest. See, e.g., Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir.
2006) (citing, inter alia, Palmore v. Sidoti, 466 U.S. 429, 433 (1984) ("The State,
of course, has a duty of the highest order to protect the interests of minor children,
particularly those of tender years.")).
The well-established parens patriae principle stated in Foulston applies
equally here. The choice of ostensibly consenting adults, including Appellees, to
bring children into a polygamous family directly implicates the interests of the
state to protect those children. To the extent that a polygamous lifestyle visits
significant harms on the children, as is made obvious infra, it is within the States
power to prohibit that lifestyle.
B. Utahs bigamy statute is narrowly tailored to advance the interest of
protecting childrens well-being.
Concentrating its attention solely on those harms associated with polygamy
that implicate other criminal activity, the trial court concluded that the bigamy
statute was not narrowly tailored to advance a compelling governmental interest.
See Brown v. Buhman, 947 F. Supp.2d 1176, 1219-1220 (D. Utah 2013). The trial
court adopted the reasoning of Chief Justice Durhams dissent in State v. Holm,
2006 UT 31, 175, 137 P.3d at 775, in which the former Chief Justice wrote that
the States policy of selective prosecution reinforces my conclusion that a blanket
criminal prohibition on religious polygamous unions is not necessary to further the

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 8

states interests [in detecting and prosecuting collateral crimes]. Brown at 1220
(emphasis in Brown).
Belying the trial courts analysis is the distinction between the States
exercise of prosecutorial discretion and the operation of the bigamy statute itself.
The issue before the court was not the constitutionality of the States policy of nonprosecution, but that of the bigamy statute, which is accordingly the proper object
of the narrow tailoring analysis.
With regard to the bigamous cohabitation prong of the statute, it may not be
perfect, but it does encompass with some precision the practice of polygamy,
which the Supreme Court of British Columbia rightly found inherently harmful.
Reference at para. 1045. To the extent that bigamous cohabitation may
incidentally encompass adulterous cohabitation, the fact is insignificant in the
constitutional analysis because adulterers are entitled, at most, to rational basis due
process. C.f. Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008)
(declining to find a fundamental right to engage in private sexual conduct where
appellant had an affair while married).
To the extent that the statutes purposes may have been subverted by the
policies of current and past administrations, those policies can and should be
revisited through the political process. Eliminating generational polygamy
presents the problem of how the State can preserve existing families while
4

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 9

preventing new ones from appearing. These are difficult matters of political
judgment, and should be left to the political branch. Judicial repeal of the
prohibition of bigamous cohabitation, on the other hand, will effectively destroy
the States ability to counter the ills that arise from the practice.
The court furthermore followed Chief Justice Durhams reasoning to
conclude that the bigamy statute has forced polygamists underground, thereby
inhibit[ing] the advancement of this compelling State interest. Brown at 1221.
But the bigamy statute has not had any such effect. It was undisputed in the
proceedings below that the majority of polygamist families in Utah have lived
openly in polygamy without action by the state. See, e.g., Complaint 123, Joint
Appx. p. 37. Claiming on the one hand that the bigamy statute has no effect on
polygamists behavior, and on the other that it drives them to isolation, is internally
inconsistent and undercuts both arguments.
C. Bigamous cohabitation imposes serious harm to childrens well-being.
The purpose behind the bigamy statute of protecting children is justified by a
multiplicity of harms, each of which was found in the Canadian polygamy case.
The weight of the evidence persuaded the Canadian court of the convergence of
evidence on the question of harm across cultures, including in North America.
Reference at para. 492.

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 10

One striking danger of polygyny in particular is that of infant and child

mortality. Infants and children in polygynous households face mortality rates at
least 20% higher than their counterparts in monogamous households, and in some
studies much higher. See J. Henrich et al., Review, The puzzle of monogamous
marriage, Phil. Trans. R. Soc. B. (2012) 367, 657-669, 666, available at
http://rstb.royalsocietypublishing.org/content/royptb/367/1589/657.full.pdf; accord
Reference at paras. 521, 783 (citing Dr. Henrichs findings). These figures may
well generally reflect childrens disadvantages on various other measures.
One such measure, Dr. Henrich posited, may be paternal investment in
offspring. Henrich et al., supra at 666. One study of nineteenth century Mormons
showed that children of wealthy men with multiple wives fared considerably worse
than children of poor men who were mostly monogamous. Id. Dr. Henrich
hypothesized that higher status men were more disposed to expend resources on
finding new wives than to invest in their children. Id.; see also Reference at para.
695 (referencing report of Dr. Dena Hassouneh with regard to anecdotal evidence
from polygamous American Muslim women).
Polygamy is frequently associated with larger family size, and higher
fertility for each wife. See Henrich et al., supra at 663; see also Reference at paras.
555 (testimony of Dr. Henrich), 667, 787. In polygynous households, these
patterns can be expected to exert pressures on the familys ability to provide
6

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 11

financially for each child. See Reference at para. 594 (referencing testimony of Dr.
Shoshanna Grossbard). This can be observed in Appellees own circumstance,
wherein Janelle Brown was apparently unable to afford medical care or health
insurance because, although cohabiting with Kody Brown, the latters income had
to support sixteen people. Complaint 125-27, Joint Appx. p. 38.
The psychological well-being of children is also implicated by the practice
of polygamy. Available literature indicates patterns of mental health problems,
poor social adjustment, and decreased academic performance among children in
polygynous families. See Reference at paras. 607 (report of Dr. Dena Hassouneh),
608 (affidavit of Dr. Susan Stickevers). Adolescents in polygynous households
report these indicators, as well as higher levels of reported family dysfunction and
drug use than their counterparts in monogamous families. Reference at para. 603
(report of Dr. Rebecca Cook). This seems to suggest long-term implications for
individuals as they proceed through childhood towards adulthood.
For girls in polygynous communities, the aforementioned risks are further
compounded by their tendencies toward early sexual activity and childbearing.
Those in North American polygamous communities are often married by age 14 to
16 years, often to significantly older partners, and producing offspring soon after.
See Reference at para. 659 (affidavit anti-polygamy advocate and author Andrea
Moore-Emmett identifying common traits observed both from her experiences and
7

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 12

from anecdotal affidavits from other individuals). Examining statistical and other
evidence, the Canadian court noted the prominence of teen pregnancy in
polygamous communities when compared to general norms. See Reference at
paras. 710-25. Further troubling is the common expectation that underage wives
will not only become pregnant quickly, but will do so again and again, in rapid
succession. See Buck, supra at 967.
D. The well-being of mothers directly impacts that of children.
Unsurprisingly, the well-being particularly psychological well-being of
mothers in polygamous families has been found to have serious consequences to
childrens well-being. Women in polygynous societies are at greater risk for
domestic violence. See Reference at para. 621 (quoting statistical analysis report of
Dr. Rose McDermott). This higher incidence of abuse makes these women prone
to mental health problems. See Reference at paras. 584 (report of Dr. Rose
McDermott), 603 (report of Dr. Rebecca Cook). First wives particularly
experience negative psychiatric outcomes, sometimes disabling. See Reference at
para. 607 (report of Dr. Dena Hassouneh), 667.
Women in polygyny experience more practical stressors as well. They are
forced to compete with one another for their husbands attention and resources.
Reference at paras. 597, 600 (testimony of opposing expert Professor Angela
Campbell). There is a tendency of co-wives to abuse one anothers children
8

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 13

possibly as a result of evolutionary predispositions against unrelated offspring. See

Reference at para. 667; Henrich et al., supra at 664-65. Finally, resources are
scarce due to large family sizes, and distribution sometimes favors one wife over
another. See Reference at paras. 603 (report of Dr. Rebecca Cook), 604 (report of
Professor Nicholas Bala).
As mothers mental health problems and emotional distress increase, this
causes significant stress for children, leading to additional emotional problems. See
Reference at para. 603 (report of Dr. Rebecca Cook); see also Henrich et al., supra
at 665 (children from polygamous families experience higher incidences of
marital conflict, household violence and family disruptions than do children of
monogamous families).
Aside from the clearly compelling interest in protecting children from the
harmful environments frequently found in polygamous households, it may also
merit the Courts consideration whether or not the protection of women can also be
a compelling state interest. Under these circumstances, women are at a distinct
power disadvantage relative to men, and at risk for multiple serious harms.
CONCLUSION
SCC has presented several substantial state interests for the Courts
consideration in evaluating the constitutionality of Utahs bigamy statute. To
catalogue every harm flowing from the practice of polygamy would be an
9

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 14

ambitious task, but the opinion of the Supreme Court of British Columbia in
Reference is an adequate start. Most of the harms listed herein are sufficiently
compelling to satisfy any constitutional standard, from rational basis to strict
scrutiny. Whatever standard the Court may ultimately apply, SCC urges the Court
to uphold the constitutionality of the bigamy statute, and reverse the judgment of
the trial court.
RESPECTFULLY SUBMITTED this 15th day of July, 2015.
s/ Christian A. Kesselring
P.O. Box 866
Heber City, Utah 84032
Telephone: 435-657-0185
christian@wasatchlawgroup.com
Counsel for Amicus Curiae Sound
Choices Coalition, Inc.

10

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 15

CERTIFICATE OF COMPLIANCE WITH RULE 32

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,
SCCs counsel hereby certifies as follows:
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 2,064 words, excluding the parts of the brief
exempted 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
it has been prepared in a proportionally spaced typeface using Microsoft
Work 2013 in 14 point Times New Roman font.
DATED this 15th day of July, 2015.
s/ Christian A. Kesselring
P.O. Box 866
Heber City, Utah 84032
Telephone: 435-657-0185
christian@wasatchlawgroup.com
Counsel for Amicus Curiae Sound
Choices Coalition, Inc.

11

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 16

CERTIFICATE OF COMPLIANCE WITH CM/ECF MANUAL

The undersigned hereby certifies that all required privacy redactions have
been made, this ECS submission is an exact copy of the hard copies required to be
submitted, and that this document was scanned for viruses with the most recent
version of Kaspersky Internet Security v.14.0.0.4651(i), and according to the
program is free of viruses.
DATED this 15th day of July, 2015.
s/ Christian A. Kesselring
P.O. Box 866
Heber City, Utah 84032
Telephone: 435-657-0185
christian@wasatchlawgroup.com
Counsel for Amicus Curiae Sound
Choices Coalition, Inc.

12

Appellate Case: 14-4117

Document: 01019460868
01019460676

Date Filed: 07/16/2015

07/15/2015

Page: 17

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on July 15, 2015 via
ECF, to:
Adam Alba
alba@mgpclaw.com
Jonathan Turley
jturley@law.gwu.edu
Attorneys for Plaintiffs-Appellees
Parker Douglas
pdouglas@utah.gov
Jerrold S. Jensen
jerroldjensen@utah.gov
Thomas Dibblee Roberts
thomroberts@utah.gov
UTAH ATTORNEY GENERALS OFFICE
Attorneys for Defendant-Appellant
Lawrence John Joseph
ljoseph@larryjoseph.com
Attorney for Amicus Curiae Eagle Forum Education & Legal
Defense Fund

DATED this 15th day of July, 2015.

s/ Christian A. Kesselring
P.O. Box 866
Heber City, Utah 84032
Telephone: 435-657-0185
christian@wasatchlawgroup.com
Counsel for Amicus Curiae Sound
Choices Coalition, Inc.

13