HB 99: Re-Criminalizing Consensual Cohabitation

This Bill passed the House 48-25 and the Senate 15-14.

Libertas Institute opposes this bill.

Following the opening of an investigation of Kody Brown and his multiple wives for violating Utah’s long-standing anti-polygamy law, litigation resulted in a court victory for Brown. The case was appealed and a panel of judges at the Tenth Circuit dismissed the lawsuit for lack of standing. Brown and his wives have asked the U.S. Supreme Court to hear the case and are awaiting a decision.

In an attempt to moot the lawsuit, the Utah Attorney General’s office proposed legislation in the 2016 legislative session, sponsored by Representative Mike Noel, to make a minor change to the law. A House committee lowered the criminal penalty (from a third degree felony to a class A misdemeanor) but the entire House of Representatives passed an amendment to restore the penalty as a felony.

The legislation failed just minutes before the close of the legislative session. While staff from the Attorney General’s office watched from the Senate gallery, their sponsor, Senator Jerry Stevenson, circled (paused) the bill—and it died.

Representative Noel is back at it again with House Bill 99, which tightens the provision in the law. Currently a polygamist can be charged for bigamy if they purport to be married (a clear free speech issue) or cohabit with another person who is not their spouse. This bill basically changes the “or” to an “and,” requiring prosecutors to prove both circumstances in order to obtain a conviction.

While this bill would otherwise be a good thing—heightening the difficulty of being prosecuted for bigamy—it is not being advanced in a vacuum. Why, after all would prosecutors in the Attorney General’s office seek a statutory change that makes their job harder?

In context, this is a bad bill, as it is presumably being promoted for the same reason as last year—to undermine the Brown family’s legal appeals so as to avoid the possibility that a court may invalidate the statute as being unconstitutional. Utah’s anti-polygamy law needs reform, but absent that, the Attorney General’s efforts to deny the Brown family their potential day in court should be opposed.