Utah Reply Brief in Sister Wives Case

Appellate Case: 14-4117
Document: 01019502424
Date Filed: 10/06/2015
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,
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
__________________________________________________________________
Reply Brief of Appellant Mr. Jeffrey Buhman
__________________________________________________________________
PARKER DOUGLAS
Utah Federal Solicitor
Utah Attorney Generals Office
350 North State Street, Ste. 230
Telephone: 801.538.1191
pdouglas@utah.gov
Counsel for Mr. Jeffrey Buhman
ORAL ARGUMENT REQUESTED
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TABLE OF CONTENTS
INTRODUCTION................................................................................................................. 1
ARGUMENT ......................................................................................................................... 6
I.
REYNOLDS AND POTTER ARE BINDING PRECEDENT THAT

COMPEL REVERSAL OF THE DISTRICT COURTS JUDGMENT .........6
A.
Reynolds Is Binding on this Court and the District Court.8
B.
Potter Is Binding on This Panel and the District Court ..14
C.
Plaintiffs Other Observations Regarding Precedent Are

Unpursuasive and Legally Irrelevant to the Analysis Here 15
II. UTAHS ALTERNATIVE INTERPRETATION OF THE STATUTE ..18

III. PLAINTIFFS OTHER ARGUMENTS ARE UNPURSUASIVE FOR
THE REASONS ALREADY ARTICULATED AND UTAH HAS AN
INTEREST IN ADDRESSING THE HARMS ATTENDANT TO
PLURAL MARIAGES....23
A.
Plaintiffs Asserted Fundamental Right is Nonexistent ..23
B.
The Harms Attendant to Polygamous and Bigamous Practices

are Legitimate Subjects of Utahs Police Powers ...25
CONCLUSION ................................................................................................. ..27

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................28
ECF CERTIFICATIONS .........................................................................................28
CERTIFICATE OF SERVICE ................................................................................29
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TABLE OF AUTHORITIES
Cases
Altria Group, Inc. v. Good,
555 U.S. 70 (2008) ..............................................................................................13
Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991) ............................................................................................14
Barnes v. United States,
776 F.3d 1134 (10th Cir. 2015) .................................................................. 6, 7, 15
Bond v. United States,
134 S.Ct. 2077 (2014) .........................................................................................13
Bronson v. Swensen,
500 F.3d 1099 (10th Cir. 2007) .................................................................... 11, 14
Brown v. Herbert,
850 F. Supp.2d 1240 (D. Utah 2012) ....................................................................2
Brown, v. Buhman,
947 F. Supp.2d. 1170 (D. Utah 2013) .......................................................... passim
Bushco v. Shurtleff,
729 F.3d 1294 (10th Cir. 2013) ...........................................................................13
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ..................................................................................... 10, 11
Citizens for Responsible Govt State PAC v. Davidson,
236 F.3d 1174 (10th Cir.2000) ..............................................................................5
Dague v. Piper Aircraft Corp.,
418 N.E.2d 207 (Ind. 1981) .................................................................................22
District of Columbia v. Heller,
554 U.S. 570 (2008) ........................................................................................9, 10
Duncan v. Wiseman Baking Co.,
357 S.W.2d 694 (Ky. 1961) ......................................................................... 22, 23
Employment Division v. Smith,
494 U.S. 872 (1990) ............................................................................................15
Garratt v. City of Philadelphia,
127 A.2d 738 (Penn. 1956)..................................................................................22
ii
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Gonzales v. Oregon,
546 U.S. 243 (2006) ............................................................................................13
Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643 (10th Cir.2006) ..............................................................................11
Heideman v. City of South Salt Lake,
348 F.3d 1182 (10th Cir. 2003) ...........................................................................18
Hopkins v. Oklahoma Public Employees Retirement System,
150 F.3d 1155 (10th Cir.1998) ............................................................................18
In re Matter of United Effort Plan Trust, civil no. 053900848, Utah Third District
Court ...26
In re United States,
10 F.3d 723 (10th Cir.1993) ...................................................................................6
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) ...........................................................................25
Lawrence v. Texas,
539 U.S. 558 (2003) ..................................................................................... 12, 13
Loving v. Virginia,
388 U.S. 1 (1967) ......................................................................................... 12, 15
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ............................................................................................13
Mizrahi v. Gonzales,
492 F.3d 156 (2d Cir. 2007) ................................................................................21
Outfitters Assoc.,
24 F.Supp.3d ........................................................................................................19
Potter v. Murray City,
760 F.2d 1065 (10th Cir.1985 ) .......................................................................1, 11
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ............................................................................................21
Reynolds v. United States,
98 U.S. 145 (1878) ...................................................................................... passim
Sale v. Johnson,
129 S.E.2d 465 (North Carolina 1963)................................................................22
Shinn v. Heath,
535 S.W.2d 57 (Ark. 1976) .................................................................................22
iii
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State v. Geer, 965 P.2d 1 (Utah1988)26

State v. Green, 99 P.3d 820, 830 (Utah 2004) .................................................. 11, 20
State v. Holm, 137 P.3d 726, 772 (Utah 2006) ................................................. 11, 14
Tokoph v. United States,
774 F.3d 1300 (10th Cir. 2014) .............................................................................6
Union Ins. Co. v. United States,
73 U.S. 759 (1867) ..............................................................................................22
United States v. Berryhill,
880 F.2d 275 (10th Cir.1989) ................................................................................6
United States v. Lopez,
514 U.S. 549 (1995) ............................................................................................13
United States v. Monts,
311 F.3d 993 (10th Cir. 2002) .............................................................................18
United States v. Spedalieri,
910 F.2d 707 (10th Cir.1990) ................................................................................6
Virginia v. Am. Booksellers Assn,
484 U.S. 383 (1988) ..............................................................................................6
Williams v. State,
137 S.W. 927 (Ark. 1911) ...................................................................... 22, 23, 24
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................................................................................10
Constitutional Provisions and Statutes
Utah Code Ann. 76-7-101 .................................................................................1, 11
Utah Const. Art XXIV, Sec. 2 .................................................................................19
Utah Const. Art. III ..............................................................................................1, 19
iv
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Rules
Fed. R. App. P. 32(a)(5) ...........................................................................................28
Fed. R. App. P. 32(a)(6) ...........................................................................................28
Fed. R. App. P. 32(a)(7)(B) .....................................................................................28
Fed. R. App. P. 32(a)(7)(B)(iii) ...............................................................................28
Other Authorities
BRITISH COLUMBIA IN REFERENCE RE: SECTION 293 OF THE
CRIMINAL CODE OF CANADA, 2011 BCSC 1588 26
Craig Jones, A Cruel Arithmatic: Inside the Case Against Polygamy
(Irwin Law, 2012) .26
Edward W. Said, Orientalism (Vintage Books 1979)..16
Ibn Warraq, Defending the West: A Critique of Edward Saids Orientalism
(Amherst: Prometheos Books, 2007)....16
Kristyn Decker, Fifty Years in Polygamy: Big Secrets and Little White Lies
(Synergy, 2013).26
Marci A. Hamilton, God vs. The Gavel: Religion and the Rule of Law 66-77
(Cambridge, 2005) 26
Ruggero J. Aldisert, Logic for Lawyers, 185, 208 (NITA, 3d ed. 1997) ...8
Sister Miriam Joseph, C.S.C., Ph.D., The Trivium: The Liberal Arts of Logic,
Grammar, and Rhetoric 203-05 (Paul Dry Books, ed.2002) (1937)......8
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INTRODUCTION
The district court below declared unconstitutional the very prohibition on
polygamy and bigamy that Congress and the President made an irrevocable federal
condition of Utahs admission to the Union. See Utah Enabling Act, Act of July
16, 1894, ch. 138, 28 Stat. 107, 108; see also Utah Const. Art. III; Id. Art. XXIV,
Sec. 2. (incorporating the so-called irrevocable ordinance forever banning
polygamy in recognition of Enabling Acts requirement); Potter v. Murray City,
760 F.2d 1065,1067-70 (10th Cir.1985 ) (noting same). The statute at issue here,
Utahs Bigamy Statute, Utah Code Ann. 76-7-101 (the Statute), is the direct
decendent of the irrevocable ordinance, and exists under the federally mandated
directives of Utahs constitutional provisions in Utah Const. Art. III and Art.
XXIV, Sec. 2.
No one disputes the history leading up to the conditions of Utahs statehood.
Utah was granted statehood after the Supreme Court in Reynolds v. United States,
98 U.S. 145 (1878), declared constitutional the federal Morrill Anti-Bigamy Act
(1862) and rejected a Free Exercise Clause challenge to that statute. In so holding,
Reynolds clearly established that criminalizing bigamy or polygamy does not
offend free exercise rights. The Morrill Act was followed by the Edmunds Act
(1882) and the Edmunds-Tucker Act (1887); along with the Reynolds decision,
those statutes paved a way to Utahs statehood upon condition. As this history
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shows, the irrevocable mandate contained in Utahs Enabling Actthat

polygamist or plural marriages are forever prohibited, Ch. 138 3, 28 Stat.107,
108 (1894)was an intentional, well-known, and thoroughly debated condition.
Utah has ever since lived with that condition and found that it curtails public harms
that flow from polygamist and plural marriages.
Reynolds and Potter are controlling precedent that should have made this
case an easy one. But the district court ignored that controlling precedent, and
after a thorough (if mistaken) inspection of non-binding legal precedents and
doctrines, declared the Statute unconstitutional, leaving Utah with irreconcilable
federal commands: to be a State, Utah must prohibit polygamy and bigamy; but it
may not (consistent with the United States Constitution) maintain a mechanism to
enforce those prohibitions. Brown v. Herbert, 850 F. Supp.2d 1240, 1243 (D. Utah
2012).
In the opposition brief,1 Plaintiffs counsel suggests that it is ironic to see
Utah relying heavily on such a decision [as Reynolds] that is replete with offensive
and prejudiced statements directed at religious and racial minorities, particularly
Mormons. Opp. at 14. The real irony this case presents is far more profound and
flows from the history outlined above: after the federal government conditioned
Utahs statehood on the irrevocable ordinance, a federal district court judge has
For purposes of short-citing, Utah denotes citations to its opening as Br. at X,
and denotes the Plaintiffs opposition brief as Opp. at X.
1
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declared unconstitutional the provisions flowing from those conditions. The

United States, it seems, has met itself coming back.
In opposition to Utahs appeal, Plaintiffs advance the following arguments:
(1) Reynolds and Potter are no longer good law and this panel is free to affirm the
district courts decision on that basis; (2) this Court is not bound by Utah courts
interpretation of Utahs bigamy statute and those interpretations therefore not
relevant to this Courts consideration; (3) Utahs alternative to the district courts
statutory construction of the bigamy statute should be rejected because it was not
advanced below; (4) Utah has waived a challenge to district courts vagueness and
hybrid rights analysis; (5) the district court was correct to keep its analysis of the
two prongs bifurcated and to strike down the cohabitation prong even though
Plaintiffs contend heightened scrutiny should apply and that prong is void for
vagueness; (6) the district court was correct to find that the cohabitation prong
violated the free exercise clause, and Plaintiffs contend that the district court
correctly applied strict scrutiny but that the cohabitation provision would fail
rational basis scrutiny; (7) the district court correctly applied a hybrid-rights claim
analysis; and (8) the district court correctly found that Plaintiffs were entitled to
fees under Section 1983 and 1988.2
With respect to Plaintiffs point 8, regarding fees, Utah maintains that the issue is
moot; the district court has entered final judgment awarding fees to Plaintiffs, and
Plaintiffs have not pursued damages. The Parties have an arrangement on fees contingent
2
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Mr. Buhman, sued in his official capcity (Utah), answers these myriad
arguments in their order of significance and without improperly parcelling them, as
Plaintiffs have.
This Court should first address the question of whether Reynolds and Potter
are dispositive, because if the Court follows its own precedential treatment of those
two cases, then inquiry into the other issues treated in the briefing is unnecessary.
Only if the Court finds that it is not bound by Reynolds and Potter, and the
decisions of this court that mandate how a panel treats precedent, should this Court
even consider the other issues.
With respect to Plaintiffs item 2, Utah did not suggest that state case law is
binding precedentonly that it is instructive regarding how Utah courts have dealt
with similar challenges. Utah precedent further confirms that bigamy charges have
been filed against both religiously and non-religiously informed multiple partner
marriages, thus foreclosing the argument that the law improperly targets any
minority group, as the statutes are facially neutral and have been applied to both
religious adherents and non-believers alike. Utah does not treat this point in a
separate section as it has been explained here and it is clear from the opening brief
that Utah did not offer state cases as binding on federal courts.
on the outcome of the appellate process, but the issue of damages is now precluded by
rule and therefore moot. To extent the Court or Plaintiffs may find otherwise, Utah is
content to rely on its treatment of the issue in its opening brief.
4
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Plaintiffs item 3 regarding the alternative statutory construct offered by

Utah is relevant only if this Court believes that it is not bound by clear precedent.
The district court found that it had a duty to offer a narrowing construction of the
purports to marry prong of the Statute after it struct the cohabitation prong of
the statute as unconstitutional. Utah offers the alternative construction only in the
event that the Court for some reason departs from precedent. And contrary to
Plaintiffs argument, Utah did not waive this issue; Utah could not have advanced
this argument until the district court ruled and made clear that its narrowing
construction was based on legal error. As described in the opening brief, Utahs
alternative construction is both consistent with the plain purpose of the the bigamy
prohibition and also avoids many of the constitutional concerns Plaintiffs raise.
Yet, the Court need not get to this point if it recognizes, as it should, that Reynolds
and Potter still control the disposition of this case.
Utah will address Plaintiffs points 4 through 7 last, after covering the topics
just outlined. The resolution of points 4 through 7 necessarily depends on the
Courts finding that Reynolds and Potter do not bind the panel of the Court, and
that Utahs alternate construction of the statute does not answer concerns of
vagueness or satisfy the requirement for a narrowing construction that a federal
court must [perform] on a statute if it is readily susceptible to a narrowing
construction that would make it constitutional. Citizens for Responsible Govt
5
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State PAC v. Davidson, 236 F.3d 1174, 1194 (10th Cir.2000) (citation and internal
quotation marks omitted); accord Virginia v. Am. Booksellers Assn, 484 U.S. 383,
397 (1988).
ARGUMENT
I.
Reynolds and Potter Are Binding Precedent That Compel Reversal

of the District Courts Judgment
Plaintiffs defense of the district courts decision necessarily depends on the
premise that Reynolds and Potter are no longer binding precedenton the district
court or on this panel. If this panel disagrees with this premise, the district courts
analysis is by definition reversible legal error. And this Court should disagree with
Plaintiffs premise. Circuit precedent forcloses it, as this Court has made
unwaiveringly clear: [w]e cannot overrule the judgment of another panel of this
court. We are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court. Barnes
v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015) (brakets in original,
citations omitted); accord Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir.
2014); In re United States, 10 F.3d 723, 724 (10th Cir.1993) (per curiam) (citing
United States v. Killion, 7 F.3d 927 (10th Cir.1993); United States v. Spedalieri,
910 F.2d 707, 710 n. 3 (10th Cir.1990) (a three-judge panel cannot overrule circuit
precedent); United States v. Berryhill, 880 F.2d 275, 277 (10th Cir.1989), cert.
denied, 493 U.S. 1049 (1990)).
6
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Three-judge panels of this Court routinely defer to prior panel decisions,

even when later panels have doubts about the continued validity of prior panel
decisions. This years Barnes case makes the point: we harbor some reservations
regarding whether our existing precedent is good law. However, we are bound
by the precedent of prior panels absent en banc reconsideration or a superseding
contrary decision by the Supreme Court. 776 F.3d at 1147. The Barnes panel
harbored doubts regarding whether Tenth Circuit precedent was in accord with two
Supreme Court decisions that were related to, but not directly on point with, the
issue before the Court in Barnes. See id. at 1146-47. The Barnes panel ultimately
considered itself bound by prior panel precedent despite those two Supreme Court
decisionsand after noting that an en banc panel of the Ninth Circuit Court of
Appeals, and panels of the Seventh and First Circuit Courts of Appeal, came to a
different conclusion regarding the treatment of precedent on the exact same issue
called into question by the two Supreme Court cases. See id. at 1147.
This panel should follow that mode of analysis here. Under it, this panel
could affirm the district courts judgment only by ignoring both the direct
applicability of Reynolds and Potter and this Courts precedent requiring fidelity to
(even questionable) prior panel opinions. This Court should reject he Plaintiffs
invitation to engage in those two legal errors and instead should reverse the
judgment below.
7
A.
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Reynolds Is Binding on this Court and the District Court
In response to Utahs argument that Reynolds controls here, Br. at 13-17; 3234, Plaintiffs employ argument by misdirection by asserting (without any citation
to a case directly on point) that the Supreme Court [has rejected Reynolds]
analysis and holding that bigamy and polygamy may be criminalized. Opp. at 13.
Plaintiffs further attempt to argue based on two logical fallacies rather than the
law: (1) argumentum ad populumthe logical fallacy of appeal to emotion of the
people, arguing that because Reynolds includes what Plaintiffs counsel finds
offensive and (2) the logical fallacy of petitio principia, commonly called
argument by assertion or begging the question, saying that this Court should ignore
direct precedent because Reynolds is a legal relic that is widely condemned by
academics and rarely cited by the Supreme Court[] as a basis for substantive
constitution analysis, id. at 13-14.3
Addressing the logical fallicies first, neither persuasively rebuts Utahs
argument. Even assuming academics uniformly condemn Reynoldsand they do
notuniform academic criticism has no bearing on whether Reynolds still controls
here. In fact, Plaintiffs point proves the opposite of its attempted assertion; as a
logical matter, there would be no reason for academics to condemn Reynolds if it
See Ruggero J. Aldisert, Logic for Lawyers, 185, 208 (NITA, 3d ed. 1997); Sister
Miriam Joseph, C.S.C., Ph.D., The Trivium: The Liberal Arts of Logic, Grammar,
and Rhetoric 203-05 (Paul Dry Books, ed.2002) (1937).
3
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were indeed a dead relic. Plaintiffs analysis does nothing to disturb the
foundation that Reynold and Potter were binding on the district court and are
binding on a panel of this Court. And the assertion that Reynolds is rarely cited
by the Supreme Court is a non-sequitur with respect to the issue of whether the
case remains good law. Id. at 13. Precedential vitality does not turn on frequency
of citation. On the contrary, a lack of further citation necessarily means that the
case remains good law.
Plainiffs argument by misdirectiontheir claim that the Supreme Court has
rejected the Reynolds analysisis belied by the fact that Plaintiffs point to no
Supreme Court case so holding. In fact, close examination of Plaintiffs cited
authority is telling and amply demonstrates why their argument fails.
None of the authority Plaintiffs cite overrules Reynolds or even suggests that
Reynolds has been overruled. Plaintiffs first cite District of Columbia v. Heller,
554 U.S. 570, 635 (2008), for the unremarkable proposition that cases of first
impression regarding the scope of a constitutional rightin Heller the right to bear
arms; in Reynolds the right to free exerciseshould clarify the entire field of
inquiry into the scope of those rights. Opp. at 13, n.6. As is clear from the quoted
language from Heller in Plaintiffs brief, see id., Heller cited Reynolds to
demonstrate the Supreme Courts awareness that Reynolds left open questions
regarding free exercise. Heller did not cite Reynolds to discuss the question it
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directly answered: that bigamy and polygamy could be criminalized in

conformance with the First Amendment. See id. Plaintiffs similarly miscite
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 574
(1993), where the quoted language similarly indicates that the Court recognizes
that early cases like Reynolds left open the precise contours of free exercise
protections and their limits. Opp. at 13, n.6. Hialeah, like Heller, thus stand for
the unremarkable proposition that cases of first impression do not answer all
questions regarding the scope of a given right; neither case purports to disturb
Reynoldss holding that bigamy and polygamy may be criminalized. See id.
Finally, Plaintiffs cite Justice Douglass dissent in part in Wisconsin v. Yoder, 406
U.S. 205, 247 (1972) where Justice Douglas contended that Yoders treatment of
the free exercise issue in that case promises in time Reynolds will be overruled.
Op. Br. at 13 n.6. But Plaintiffs again fail to cite a case confirming that Justice
Douglass prediction has in fact come to pass. And Plaintiffs citation to Yoders
lone dissent-in-part itself demonstrates that the case similarly cannot stand for the
proposition that Reynolds does not still control the issue directly before this Court;
in fact, as a matter of logic and law, the citation proves just the opposite, as it
presumes Reynolds is good law until something happens in the future. That day
has yet to arrive.
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This Court need look no further than its own post-Lawrence case law to
confirm that Reynolds remains good law:
Plaintiffs substantive challenge to Utahs criminal prohibition of
polygamy faces a litany of seemingly insurmountable precedential
obstacles. Case law upholding the criminalization of polygamy from
constitutional attack dates back at least to 1878, when in Reynolds v.
United States, 98 U.S. 145, 16266, 25 L.Ed. 244 (1878), the
Supreme Court rejected a free exercise challenge to the Morrill Anti
Bigamy Act of 1862. More contemporary decisions from the Supreme
Court and from this Court have acknowledged the continued validity
of Reynolds. See Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 535, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citing
Reynolds as support for the proposition that adverse impact on
religion from operation of legislative enactment does not translate into
impermissible religious targeting where a social harm may have been
a legitimate concern of government for reasons quite apart from
discrimination); Grace United Methodist Church v. City of
Cheyenne, 451 F.3d 643, 649 (10th Cir.2006) (citing Reynolds with
approval).
Similarly, constitutional challenges to Utahs criminal statute
outlawing polygamy, Utah Code 767101, have failed. In Potter,
this Court relied upon Reynolds in rejecting attacks that were
premised upon the Due Process and Free Exercise Clauses of the
United States Constitution. See Potter, 760 F.2d at 106869. And the
Utah Supreme Court recently invoked Reynolds and Potter in holding
that a defendants conviction under 767101 did not violate his
rights to association, to the free exercise of religion, and to substantive
due process, as guaranteed by the First and Fourteenth Amendments
to the federal Constitution. Holm, 137 P.3d at 74149; see also Green,
99 P.3d at 82530 (applying Reynolds and Potter to reject federal free
exercise challenge to 767101).
Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007). Bronson makes the
district courts refusal to follow Reynoldsand the Plaintiffs arguments against
Reynoldss continued vitalityparticularly inapposite.
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Plaintiffs next citations to four law review articles critical of the Reynolds
decision offer no more compelling or controlling authority and constitute argument
via non sequitur. See id. at 14. As noted above, academic articles cannot overrule
Reynolds. Moreover, there would be no market for law reviews in academic
scholarshipeven law review articles by Plaintiffs counselwere Reynolds not
controlling. At best the articles Plaintiffs cite merely suggest that some have
criticized Reynoldss rationale and premises. But criticism does not suggest, let
alone prove, that the Supreme Court has overruled Reynolds.
Plaintiffs remaining observations regarding Reynoldss continuing vitality
fare no better than those already covered. Plaintiffs urge this Court to ignore
Reynolds because it is essentially an opinion that endorses morality-based laws
and, so Plaintiffs argument goes, such bases for legislation are no longer
considered a valid basis for laws. Opp. at 15. Plaintiffs argue that the Supreme
Court rejected such morality-based laws in Loving v. Virginia, 388 U.S. 1 (1967),
and Lawrence v. Texas, 539 U.S. 558 (2003). See id. Loving, as this Court well
knows, concerned the criminalization of miscegenation in marriage, a criminal
penalty based on racial distinctions not at issue here. Moreover, Loving did not
concern merely the private relations, which Plaintiffs continually (though not
consistently) assert are at issue in this case, but the public institution of marriage.
And as discussed in greater detail below, Lawrence concerned no social harm, as
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the Court found that private, consensual acts of sodomy did not warrant criminal
regulation because the alleged harm the statutes addressed did not outweigh the
limited fundamental privacy right recognized in that case. Thus, neither Loving
nor Lawrence controls the analysis here.
Moreover, Plaintiffs are incorrect about states abilities to criminally
regulate bigamy and polygamy for several separate and independent reasons. First,
the the Suprme Court has consistently continued to recognize after the Lawrence
decision that states retain broad police powers. See, e.g., Bond v. United States,
134 S.Ct. 2077 (2014) (The States have broad authority to enact legislation for the
public goodwhat we have often called a police power.), quoting United States
v. Lopez, 514 U.S. 549, 567 (1995); Altria Group, Inc. v. Good, 555 U.S. 70, 77
(2008) (recognizing states retained police powers). Indeed, post-Lawrence, the
Supreme Court continues to recognize that the states retain great latitude under
their police powers to legislate as to the protection of the lives, limbs, health,
comfort, and quiet of all persons. Gonzales v. Oregon, 546 U.S. 243, 270 (2006)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). Unremarkably, this
Court recognizes the same: The traditional police power of the States is defined
as the authority to provide for the public health, safety, and morals, and [the U.S.
Supreme Court has] upheld such a basis for legislation. Bushco v. Shurtleff, 729
F.3d 1294, 1304 (10th Cir. 2013) (finding that Utah had exercised proper police
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power in enacting its sexual solicitation statute), quoting Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 569 (1991).
Plaintiffs take issue with a states police power as a ground for criminalizing
bigamy and polygamy. Opp. at 15. Indeed, they argue that Utah below
acknowledged that good order and morals in society is no longer considered
a valid basis for laws. Id. (citing App. Vol. II at 413). Like Plaintiffs arguments
covered above, Plaintiffs point here again relies on a misreading of the text they
use to support their argument. Utahs point in the quoted brief is only that courts
now treating the topic of polygamy and bigamy generally but not solely focus not
on good order and moral but rather more often focus on social harms
associated with those practices. App. Vol. II at 413, citing Bronson, 500 F.3d at
1105 (noting social harm reference in Hialeah); Utah v. Holm, 2006 UT 31,
61, 137 P.3d 726, 744 (Utah 2006) (social union our society deems . . . harmful).
As noted below in the discussion of social harms associated with bigamy and
polygamy, social harms from bigamous and polygamous practies suffice to justify
their regulation.
B.
Potter Is Binding on This Panel and the District Court
Just as they attempt to distinguish Reynolds, Plaintiffs also urge this Court to
ignore Pottera prior Tenth Circuit panel opinion holding that the precise statute
at issue in this case was constitutional. See Br. at 32-34. Plaintiffs address the
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precedential weight of Potter only by stating that, at the time Potter was decided,
criminalization of homosexual relations was still considered constitutional and that
Potter predated the Supreme Courts decision in Employment Division v. Smith,
494 U.S. 872 (1990).
These observations, again, provide no license for this panel to avoid a prior
Tenth Circuit panels holding on the very same issueeven if the later panel is
concerned about the continued legitimacy of the prior panels holding. See Barnes,
776 F.3d at 1147.
C.
Plaintiffs Other Observations Regarding Precedent Are

Unpursuasive and Legally Irrelevant to the Analysis Here
Plaintiffs counsel also asserts that it is ironic to see Utah relying heavily
on such a decision that is replete with offensive and prejudiced statements directed
at religious and racial minorities, particularly Mormons. Id. at 14. But Utahs
reliance on such a decision exhibits no irony at all. As mentioned, Utahs
admission into the Union was predicated on the irrevocable condition that it
forever renounce and criminalize the practice of bigamy and polygamy. As a
consequence of these requirements in Utahs Enabling Act, Utah was required to
include in its constitution the irrevocable provision that it would forever outlaw the
practice, which it has done. What is ironic is that a federal court would now tell
Utah that the necessary condition demanded by the federal government for the
States admission to the Union is itself unconstitutional, and that Utah now bears
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responsibility for legal provisions the federal government demanded because a

federal court finds them unconstitutional.
Plaintiffs also make much out of venomous and biased language they note
in Reynolds and repeatedly cite to that cases description of polygamy as odious
among the northern and western nations of Europe, and, until the establishment of
the Mormon Church, was almost exclusively a feature of the life of Asiatic and of
African people. See, e.g., Opp. at 15, quoting Reynolds, 98 U.S. at 164. This
passage not only offends opposing counsel, but also concerned the district court
such that it agreed with some legal academics that the late English Professor
Edward Saids work Orientalism was a relevant interpretative framework for
evaluating the crusade of nineteenth-century American society against Mormon
polygamy and the merits of the Reynolds decision today. Brown, 947 F.Supp.2d
at 1147 (relying on Edward W. Said, Orientalism (Vintage Books 1979)).
Two things are of note here. The first is a strawman argument: language that
offends some has the consequence of making legal precedent, absent overruling,
have less authority. This is pure balderdash with no legally authoritative support.
The second is that, as noted above, an academic evaluation of Supreme Court
precedent is of no legal significance, and does nothing to devalue the legal
argument above that both Reynolds and Potter remain binding authority. This is
especially true of the work of Professor Said, who after his death was roundly
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criticized for his ahistorical comparisons and his generally slapdash dualisms, as
well as his promotion and commodification of the modern academic fetish for
examining microscopically the flaws and failings (real and imagined) of the West
while simultaneously portraying an ever-peaceful East perpetually victimized by
the technologically superior but, of course, morally benighted West. See, e.g., Ibn
Warraq, Defending the West: A Critique of Edward Saids Orientalism (Amherst:
Prometheos Books, 2007).
The more salient point is that both counsels outrage and the district courts
whole-hearted acceptance of Saids perspective obscure what the Court in
Reynolds was actually doing in that section of the opiniona point both Plaintiffs
and the district court miss. Following the venomous and biased passage is a
careful and often insightful discussion regarding how polygamy was received in
the common law, as the Court focused on a rather lengthy discussion of Chancellor
Kents Commentaries, which compared Anglo and Continental law to that of other
contries where possible. Reynolds, 98 U.S. at 14-15. Prior to the venomous and
biased passage, the Reynolds Court does the first extended analysis in American
jurisprudence of the contours of the right to free exercise. Id. at 13-14.
As with the previous points treated, this appeal to outrage does nothing to
logically advance an argument that Reynold and Potter do not still bind the district
court. This Court consequently should follow its own precedent and procedures
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and reverse the district courts decision on the fundamental legal principle that
lower courts are bound by the decisions of higher courts.
II.
UTAHS ALTERNATIVE INTERPRETATION OF THE STATUTE

This Courts review of the district courts decision holding Utahs bigamy
statute to be unconstitutional should occur under the settled doctrine that State
statutes enjoy a presumption of constitutionality. United States v. Monts, 311 F.3d
993, 996 (10th Cir. 2002); accord Heideman v. City of South Salt Lake, 348 F.3d
1182, 1190-91 (10th Cir. 2003); Hopkins v. Oklahoma Public Employees
Retirement System, 150 F.3d 1155, 1160 (10th Cir.1998). Plaintiffs challenging a
state statutes constitutionality always bear the heavy burden of rebutting the
presumption of constitutionality, and courts refrain from second guessing
legislative policy makers in determining whether given provisions are
constitutional. See Hopkins, 150 F.3d at 1160. This presumption is as binding on
this Court as it is on the district court. See id. (Of course, as this case challenges
the constitutionality of a state statute, we are constrained by the venerable
presumption that an act of a state legislature is generally taken to be constitutional,
and the burden is on the plaintiff to demonstrate how the statute transgresses the
requirements of the United States Constitution.) (citation and internal quotation
marks omitted). Applying the presumption of constitutionality makes clear that
judicial review is not a search for mere policy disagreements:
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Constitutionality is a binary determination: either a law is

constitutional, or it is not. This Court will not express a qualitative
opinion as to whether a law is good or bad, wise or unwise,
sound policy or a hastily-considered overreaction. Similarly, this
Court will not assess what alternatives the legislature could have
chosen, nor determine whether the enacted laws were the best
alternative. Such decisions belong to the people acting through their
legislature. Put another way, in determining whether a law is
constitutional, this decision does not determine whether either law is
good, only whether it is constitutionally permissible.
Col. Outfitters Assoc., 24 F.Supp.3d at 1055-56. Because the district court is
bound by Reynolds and Potter, neither the Plaintiffs nor the district court cited
controlling authority to suggest that the Statute was constitutionally infirm, and as
such the district court had no legal basis for departing from
Utahs Enabling Act provides that polygamist or plural marriages are
forever prohibited. Ch. 138 3, 28 Stat.107, 108 (1894). As discussed above,
this led to the inclusion in the Utah Constitution provisions (not challenged in this
lawsuit by Plaintiffs) that polygamous or plural marriages are forever prohibited,
Utah Const. Art. III, and Utah Const. Art XXIV, Sec. 2 providing:
All laws of the Territory of Utah now in force[.] The act of the
Governor and Legislative Assembly of the Territory of Utah, entitled,
An Act to punish polygamy and other kindred offenses, approved
February 4th, A.D. 1892, in so far as the same defines and imposes
penalties for polygamy, is hereby declared to be in force in the State
of Utah.
Id.
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The operative common dictionary at the time defined Polygamy as A

plurality of wives or husbands at the same time, or the having of such plurality;
usually the condition of a man having more than one wife. An American
Dictionary of the English Language 1009 (Noah Webster ed. 1886). Polygamist
is defined as A person who practices polygamy, or maintains its lawfulness. Id.
Marriage is defined as the act of being married; union of man and woman as
husband and wife. Id. at 814. And the verb to Marry is: To enter in the
conjugal or connubial state; to take a husband or a wife. Id. Conjugal means to
unite or join in marriage. Id. at 275. And Connubial means pertaining to the
marriage state. Id. at 277.
Each of these definitions accord with the Green Courts analysis of
cohabitation in the Statute, as they entail living persons living together in a sexual
relationship, but the Polygamy definition adds the condition of plurality, which the
Green Court noted was the purpose of the Statute: to prevent any and all indication
of multiple simultaneous marriages. Green, 99 P.3d at 832. As the Statute was
designed to make sure Utah kept the federal mandate in the Enabling Act, it is
unambiguous as a matter of plain language and historical inquiry that what is
banned is the public practice of polygamy. To the extent that this Court might be
troubled by any ambiguity in the Statute, the interpretive canons of avoidance of
constitutional results and avoidance of absurd results, Br. at 35-37, and to the
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extent this Court shares any concern regarding how the Statute ought to be
interpreted, counsel relies on the points advanced in the opening brief.
Plaintiffs object to what they see as rewriting the Statute, but the district
court did just that in excising half the statute and interpreting the other half to
cover marriage license fraud,4 hardly what was intended by either the federal
government or the Utah legislature and Governor, when one party conceived of the
irrevocable ordinance and the other carried it over, from territory to statehood as
required, to give it legal force. The district courts construction leaves us with an
absurd result; Utahs alternative, which is only relevant should this Court find
Reynolds and Potter are not binding, follows the intention of the ordinance as
expressed in the Utah Constitution and the Statute.
Plaintiffs protestations aside, [i]t is a standard canon of statutory
construction that words separated by the disjunctive are intended to convey
different meanings unless the context indicates otherwise. Mizrahi v. Gonzales,
492 F.3d 156, 164 (2d Cir. 2007) (citing Reiter v. Sonotone Corp., 442 U.S. 330,
339 (1979)). This is a standard consideration courts undertake in statutory
interpretation, see generally 1A Norman J. Singer, SUTHERLANDS STATUTES AND
Plaintiffs seem concerned that Utahs bigamy statute under such a reading might
cover actual polygamy and plural marriagerequired by the Enabling Actbut
leave Utah open to situations where a person could how two, six, or ten marriage
licenses licenses with the state but not commit a crime under the statute unless
they [sic] cohabitated. Opp. at 11. Counsel has faith that Utahs politicians are
able enough to craft additional legislation to stop simple marriage license fraud.
4
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STATUTORY CONSTRUCTION 21:14 (7th ed.2014) (discussing general rule and

departures from it), and the principle is so commonly recognized it is effectively
ubiquitous as a tool of statutory interpretation in American courts.5 If this Court
finds the need to interpret the Statute, Utahs suggestion is the way to ensure it
avoids any constitutional problems this Court might find unaddressed by Reynolds
or Potter.
See, e.g., Union Ins. Co. v. United States, 73 U.S. 759, 764 (1867) (reading or to mean
and to carr[y] into effect the true intention of Congress); Dague v. Piper Aircraft
Corp., 418 N.E.2d 207, 211 (Ind. 1981) (holding that or in a statute should be read as
the conjunctive and); Shinn v. Heath, 535 S.W.2d 57, 62 (Ark. 1976) (To carry out the
general purpose and intent of a statute, either civil or criminal, the words and and or
are convertible.); Sale v. Johnson, 129 S.E.2d 465, 470 (North Carolina 1963) (holding
that the word or must be taken conjunctively and construed as and to effectuate
legislative intent); Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 698-99 (Ky. 1961)
([S]ince the popular use of the words or and and is loose and frequently inaccurate,
the courts may and should change and to or, and vice versa, whenever such
conversion is required, inter alia, to effectuate the obvious intention of the Legislature
and to accomplish the purpose or object of the statute.); Garratt v. City of Philadelphia,
127 A.2d 738, 740 (Penn. 1956) (Or should be construed to mean and when to give
the word or its ordinary meaning would be to produce a result that is absurd or
impossible of execution or highly unreasonable or would manifestly change or nullify the
intention of the legislative body.); Williams v. State, 137 S.W. 927, 928 (Ark. 1911)
(construing or to mean and to fulfill the courts duty to give meaning and effect . . . to
each word and phrase of the statute).
5
22
III.
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PLAINTIFFS OTHER ARGUMENTS ARE UNPURSUASIVE FOR

THE REASONS ALREADY ARTICULATED AND UTAH HAS AN
INTEREST IN ADDRESSING THE HARMS ATTENDANT TO
PLURAL MARIAGES
A.
Plaintiffs Asserted Fundamental Right is Nonexistent
Regarding almost every other concern voiced in Plaintiffs opposition brief,

Utah has covered them and stated its position in Utahs opening brief. Yet Utah
must address Plaintiffs treatment of Seegmiller and Plaintiffs claim to a
constitutional privacy right to family decisions to organize child-rearing and
romantic relationships among multiple partners in addition to Mr. Browns single
legal spouse. Opp. at 29. Plaintiffs also place an emphasis on privacy rights of
conduct in the home, id., and a groups freedom to choose its own marriage
structureso long as its participants are consenting adults, id. at 50. Plaintiffs
continued appeals to the private nature of their action are belied by their earlier
representations to the district court, which claimed that they brought their own
threat of prosecution not by being known as polygamists but by being very public
polygamists. App. Vol. II at 389. Plaintiffs cannot have it both ways, claiming
privacy rights not recognized by Lawrence, and then also making their case public
in media covering The Sister Wives. Doing so certainly violates the mandates of
the irrevocable ordinance that has governed Utah from its territorial days to the
present.
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Plaintiffs description of the fundamental right at issue also does not meet
the standard of Washington v. Glucksberg, 521 U.S.702 (1997), which requires
careful description of . . . the asserted liberty interest, id. at 721, and a showing
that the asserted right is objectively, deeply rooted in this Nations history and
tradition, and implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed. Id. Plaintiffs made no showing below;
nor do they here.
Nor have they met this Courts interpretation of the Lawrence standard in
Seegmiller. The district court and the Plaintiffs try to distinguish Seegmiller by
limiting it to the fact that it involved a police officer who raised a claim to sexual
privacy in the context a reprimand for off duty conduct, and stating that the only
thing that justified his reprimand was violating the law he was sworn to uphold.
Opp. at 25, citing Brown, 947 F.Supp. 2d at 1201. Utah has already described the
reasons Seegmiller governs, Br. at 47, and both the district court and the Plaintiffs
misread the factual example of the rule in application as the rule itself. Seegmiller
could not have found an extended right to private sexual conduct, as if that right
were indeed fundamental, the mere fact that a police policy prohibited it would not
save that policy as a constitutional matter.
24
B.
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The Harms Attendant to Polygamous and Bigamous

Practices are Legitimate Subjects of Utahs Police Powers
Seegmiller also demonstrates that such inchoate claims to a privacy right are
subject to rational basis review and nothing more. There is ample evidence to
support a governmental interest satisfying rational basis or even heightened
scrutiny. Plaintiffs counsel seems to be of a mind that this Court does not accept
for evidence of governmental interest, studies, cases and other materials that can
justify the basis for the distinctions made by the government in support of the law.
For this reason, Plaintiffs take issue with references regarding harm made by
Amicus Sound Choices Coalition regarding issues that were not the subject of the
district courts opinion. This position both assumes that the opinion may not be
overturned on appeal, and moreover ignores the fact that this Court just last year in
Kitchen v. Herbert, 755 F.3d 1193, 1219-29 (10th Cir. 2014), allowed precisely
such citations to studies in order to demonstrate either a rational or compelling
bases for the governments distinctions at issue.
Counsel for Plaintiffs states that he served as a legal expert in the Canadian
case mentioned by Sound Choices Coalition. Opp. at 72, n.27. He suggests that
the Candian Court did not explore the harm done by plural relationships in both
jurisdictions, and others. Id. This is false. See 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.
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Indeed, the Canadian Court finding arguments advanced here regarding absence of
harm unpersuasive. See id. at paras. 885-86.
Counsel also suggests that it is somehow unfair to discuss individual cases
like that of Warren Jeffs. But that is what the boots on the ground fact of bigamy
and polygamy can look like, and it is one reason the irrevocable ordinance
recognized as perfectly constitutional in Reynolds and Potter remains fully
supportable and in conformity with the Constitution today. Whether addressed in a
case like State v. Geer, 965 P.2d 1(Utah Ct. App. 1988), which did not involve
religiously associated plural marriage, or in a case that the Utah Attorney Generals
office has been handling for years, In re Matter of United Effort Plan Trust, civil
no. 053900848, Utah Third District Court, in which the office has attempted to
manage a community ravaged by untold fraud and other crimes associated with
larger polygamous groups, the harms are real. See also e.g., Marci A. Hamilton,
God vs. The Gavel: Religion and the Rule of Law 66-77 (Cambridge: 2005); Craig
Jones, A Cruel Arithmatic: Inside the Case Against Polygamy (Irwin Law, 2012);
Kristyn Decker, Fifty Years in Polygamy: Big Secrets and Little White Lies
(Synergy, 2013). Counsel invites the Court to read these works as well as
opposing counsels recent law review article. Compare the accounts of the
possible harms attendant to bigamy and polygamy. The comparisons will show
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that the exercise of Utahs traditional police powers is justified and, as noted in
Reynolds and Potter, perfectly consitutional.
CONCLUSION
For the reasons covered here and in the opening brief, this Court should
reverse the district courts grant of summary judgment to the Plaintiffs, vacate the
permanent injunction, and remand with any instructions the Court finds
appropriate.
Respectfully submitted this 5th Day of October 2015.
/s/Parker Douglas
PARKER DOUGLAS
Utah Federal Solicitor
Utah Attorney Generals Office
350 North State Street, Ste. 230
Telephone: 801.538.1191
pdouglas@utah.gov
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1.
This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because:
[x]
this brief contains 6570 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:
[x] this brief has been prepared in a proportionally spaced typeface using
Word in 14 point Times New Roman font.
/s/Parker Douglas
ECF CERTIFICATIONS
Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the
undersigned certifies that:
1.
all required privacy redactions have been made;
2. hard copies of the foregoing brief required to be submitted to the clerks

office are exact copies of the brief as filed via ECF; and
3. the brief filed via ECF was scanned for viruses with the most recent
version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the
program is free of viruses.
/s/Parker Douglas
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CERTIFICATE OF SERVICE
I hereby certify that on the 5th of October, 2015, a true, correct and complete
copy of the foregoing Brief of Appellants and Addendum consisting of the Joint
Appendix was filed with the Court and served on the following via the Courts
ECF system:
Pursuant to Section II(I) of the Court=s CM/ECF User=s Manual, the undersigned
certifies that all required privacy redactions have been made and this document
was scanned for viruses with the most recent version of Microsoft Security
Essentials v. 2.1.111.6.0, and, according to the program, is free of viruses.
The undersigned also certifies that on October 5, 2015, a true, correct and complete
copy of this document was filed with the Court and served on the following via the
Courts ECF system:
Jonathan Turley
2000 H St., N.W.
Washington, D.C. 20052
202-994-7001
jturley@law.gwu.edu
Adam Alba
170 S. Main Street Ste. 850
Salt Lake City, UT 84101
alba@mgpclaw.com
/s/Parker Douglas
29

Utah Reply Brief in Sister Wives Case

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Utah Reply Brief in Sister Wives Case

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Date Filed: 10/06/2015

JEFFREY BUHMAN, in his official capacity,

ORAL ARGUMENT REQUESTED

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REYNOLDS AND POTTER ARE BINDING PRECEDENT THAT

Reynolds Is Binding on this Court and the District Court.8

Potter Is Binding on This Panel and the District Court ..14

Plaintiffs Other Observations Regarding Precedent Are

II. UTAHS ALTERNATIVE INTERPRETATION OF THE STATUTE ..18

Plaintiffs Asserted Fundamental Right is Nonexistent ..23

The Harms Attendant to Polygamous and Bigamous Practices

CONCLUSION ................................................................................................. ..27

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State v. Geer, 965 P.2d 1 (Utah1988)26

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shows, the irrevocable mandate contained in Utahs Enabling Actthat

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declared unconstitutional the provisions flowing from those conditions. The

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Plaintiffs item 3 regarding the alternative statutory construct offered by

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Reynolds and Potter Are Binding Precedent That Compel Reversal

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Three-judge panels of this Court routinely defer to prior panel decisions,

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Reynolds Is Binding on this Court and the District Court

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directly answered: that bigamy and polygamy could be criminalized in

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Potter Is Binding on This Panel and the District Court

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Plaintiffs Other Observations Regarding Precedent Are

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