Keeping 'I Do' Between Two: A Post-Obergefell Analysis of a Bigamous Marriage and Its Implications for Louisiana's Matrimonial Regime

Keeping “I Do” B etween Two: A Post-Obergefell Analysis of Bigamous Marriage and Its Implications for Louisiana’s Matrimonial Regime TABLE OF CONTENTS Introduction .................................................................................. 336 I. Background and Progression Toward the Bigamy Debate ........... 338 A. Introduction to the Due Process and Equal Protection Clauses ................................................................. 339 B. A Clausal Collision: The Ambiguities in Fourteenth Amendment Jurisprudence .................................................... 341 1. The Right to Privacy ....................................................... 341 2. The Right to Marry .......................................................... 343 II. The Constitutional Conundrum of Plural Unions ......................... 346 A. Bigamy and Reynolds v. United States .................................. 346 B. The Problem with Louisiana’s Criminal Bigamy Statute ...... 347 C. The Question and Implications of Legalizing Bigamous Unions................................................................... 348 1. Uncertainty After Obergefell .......................................... 349 2. The Potential Impact of Legalizing Bigamous Unions ... 350 III. Determining the Constitutional Scope of Marriage ..................... 351 A. Defining the Proper Scrutiny Standard .................................. 351 1. The Level of Scrutiny for Criminalizing Bigamous Unions ............................................................ 352 2. The Level of Scrutiny for Denying Legal Recognition to Bigamous Unions ........................................................ 354 a. Analysis Under Equal Protection .............................. 355 b. Analysis Under Due Process .................................... 357 B. Identifying a Justifiable Governmental Interest ..................... 361 1. The Conflict with Tax Law ............................................. 362 2. The Conflict with Community Property Law.................. 364 IV. Proposing a Doctrinal Solution .................................................... 365 Conclusion .................................................................................... 368 336 LOUISIANA LAW REVIEW [Vol. 78 INTRODUCTION Meet Kody Brown, an advertising salesman living happily in Utah with his four wives and 18 children. 1 Apart from the fact that Kody has multiple wives, the Browns are an otherwise normal family. They take vacations, argue with one another, and share meals together at the end of a long day. Unfortunately for the Browns, local authorities began investigating them to determine whether they were in violation of the state’s criminal bigamy laws. 2 Fearing for their safety, Kody moved his family to Nevada and filed suit against the state, claiming that the investigation violated his family’s right to privacy. At trial, the lower court ruled in favor of the Browns and struck down as unconstitutional the portion of the state’s bigamy statute that criminally implicated Kody for cohabiting 3 with multiple wives. 4 The appellate court, however, dismissed the case and effectively reinstated the statute that criminalized Kody and his family’s way of life. 5 TLC’s popular television series “Sister Wives,” which follows the Browns’ lives, has entertained millions of viewers over the course of seven seasons. 6 What many viewers may not realize, however, are the legal issues raised by the show’s plot. The Utah district court’s ruling in favor of the Browns and striking down of the criminal portion of Utah’s bigamy statute Copyright 2017, by MCLAURINE H. ZENTNER. 1. The following hypothetical described herein is based on the factual circumstances in the 2013 Utah state court decision of Brown v. Buhman. See generally Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013). 2. UTAH CODE ANN. § 76-7-101 (West 2017); Bigamy, BLACK’S LAW DICTIONARY (10th ed. 2014) (“[Bigamy is] [t]he act of marrying one person while legally married to another.”); see also Polygamy, BLACK’S LAW DICTIONARY 1347 (defining polygamy as “[t]he state or practice of having more than one spouse simultaneously”). 3. Cohabitation, BLACK’S LAW DICTIONARY (“[Cohabitation is] [t]he fact, state, or condition of living together, esp[ecially] as partners in life, usu[ally] with the suggestion of sexual relations.”). 4. Brown, 947 F. Supp. 2d at 1222–23. 5. See Brown v. Buhman, 822 F.3d 1151, 1179 (10th Cir. 2016). The court justified its dismissal of the case by concluding that because Utah prosecutors had a policy of not pursuing most bigamy cases, the plaintiffs had no credible fear of future prosecution and thus lacked standing. Id. at 1167; see also discussion infra Part II.A. 6. See Michael Rothman, “Sister Wives”: Everything You Need to Know About Kody Brown and Family, ABC NEWS (Apr. 12, 2016), http://abcnews.go.com/Enter tainment/kody-brown-sister-wives/story?id=38331357 (providing background of the Brown family and discussing the purpose and plot of the show) [https://perma.cc /HS38-9QVA]. 2017] COMMENT 337 was vacated recently by the Tenth Circuit Court of Appeals on procedural grounds. 7 The Tenth Circuit’s decision, along with the recent United States Supreme Court decision in Obergefell v. Hodges prohibiting states from banning same-sex marriages, 8 has intensified a new and controversial debate concerning the legality of anti-bigamy laws. A central issue debated concerns whether marriage should be restricted to relationships consisting of only two individuals, thus denying marriage rights to individuals, such as Kody and his family, who are in bigamous unions. Perhaps the most controversial matter surrounding the constitutionality of bigamous marriage is whether states should recognize the practice legally and confer governmental benefits to individuals in these unions. A major concern surrounding the legal recognition of bigamous marriage is the effect such recognition would have on tax and community property laws—two areas of law shaped by the concept of marriage as a legal union between two individuals. A United States Supreme Court decision requiring states to recognize bigamous marriage as a legal institution would disrupt tax and community property laws significantly throughout the United States. 9 The issue of bigamous marriage is particularly relevant to Louisiana—not only because Louisiana is a community property state 10 but also because of Louisiana’s criminal bigamy statute. 11 Part I of this Comment provides background on the United States Supreme Court’s recent expansion of individual rights and liberties and the significant ambiguities surrounding the Supreme Court’s interpretation of the Due Process and Equal Protection clauses of the Fourteenth Amendment. Part II analyzes Louisiana’s criminal bigamy statute and the issues surrounding the bigamous marriage debate generally. Part III conducts a constitutional analysis of Louisiana’s criminal bigamy statute and highlights the central issues the statute raises. Lastly, Part IV proposes that the Louisiana Supreme Court, if confronted with the constitutionality of Louisiana’s criminal bigamy statute, should decline to extend the fundamental right to marry to bigamous unions under a rational basis review. Instead, the Louisiana Supreme Court should hold the portion of the statute criminalizing bigamous marriage unconstitutional in light of 7. Brown, 822 F.3d at 1179; see also discussion infra Part II.A. 8. Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015). 9. See Samuel D. Brunson, Taxing Polygamy, 91 WASH. U.L. REV. 113, 117 (2013). 10. See, e.g., LA. CIV. CODE art. 2338 (2017). The question of legally recognizing bigamous marriage presents a significant challenge to community property states that treat marriage as an institution consisting of only two people. See, e.g., Hadar Aviram & Gwendolyn Leachman, The Future of Polyamorous Marriage: Lessons from the Marriage Equality Struggle, 38 HARV. J.L. & GENDER 269, 318 (2015). 11. LA. REV. STAT. § 14:76 (2017). 338 LOUISIANA LAW REVIEW [Vol. 78 Lawrence v. Texas 12 and the greater privacy rights that Louisiana citizens enjoy under the state constitution. 13 I. BACKGROUND AND PROGRESSION TOWARD THE BIGAMY DEBATE Marriage is one of the most profound and important institutions in American society, and many people consider marriage to be the most significant moment an individual can experience during one’s life. 14 Marriage also is a unique institution because of its nationwide recognition as a contract formed between the spouses and the government. 15 The legal aspect of marriage seems rather peculiar in light of the particularly intimate and private nature associated with the institution of marriage. Marriage offers the opportunity for two people to join together in a single union composed of love, fidelity, and spirituality. 16 The government also benefits from this arrangement because marriage can be an effective mechanism to facilitate child-rearing in stable family environments—the building blocks of a strong and productive society. 17 The government’s extensive role in regulating marriage, however, raises the question of how far regulations should extend when individual rights and liberties are concerned. An examination of the United States Supreme Court’s interpretation of individual rights and liberties and the extent to which they are protected by the United States Constitution highlights the significance concerning the issue of governmental regulation of bigamous relationships. 12. Lawrence v. Texas, 539 U.S. 558 (2003). 13. LA CONST. art. I, § 5; see also S. Con. Res. 39, 1997 Leg., Reg. Sess. (La. 1997). Former Supreme Court Justice Byron White famously stated, “The [Supreme] Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Bowers v. Hardwick, 478 U.S....