1. 1. Obergefell v. Hodges, No. 14-556, slip op. at 23 (U.S. June 26, 2015).
2. 2. See, for example, Supreme Court Justice Antonin Scalia’s dissent in Lawrence et al. v. Texas, 539 U.S. 558 (2003); James Oliphant, “Rick Santorum Jeered after Comparing Gay Marriage to Polygamy,” Los Angeles Times, January 6, 2012, http://articles.latimes.com/2012/jan/06/news/la-pn-santorum-jeered-after-comparing-gay-marriage-to-polygamy-20120106; The O’Reilly Factor, aired April 4, 2013, on Fox News Channel; The O’Reilly Factor, aired December 16, 2013, on Fox News Channel, https://www.youtube.com/watch?v=ajNybaF2-40; Michael Brendan Dougherty, “How Gay Marriage Paves the Way for Legal Polygamy,” The Week, July 6, 2015, http://theweek.com/articles/564178/how-gay-marriage-paves-way-legal-polygamy; Jane C. Timm, “Ben Carson: Gay Marriage Leads to Polygamy and ‘on from There,‘” MSNBC, October 13, 2015, http://www.msnbc.com/msnbc/carson-gay-marriage-leads-polygamy; and Peter Sprig, “Why Same-Sex Marriage Will Pave the Way to Polygamy,” Religion News Service, June 20, 2016, https://religionnews.com/2016/06/20/why-same-sex-marriage-will-pave-the-way-to-polygamy/.
3. 3. Obergefell, No. 14-556, slip op. at 23 (U.S. June 26, 2015).
4. 4. “Cohabitation” was first criminalized by federal legislation in the mid-nineteenth century as a strategy to more easily prosecute Mormon polygamists in what was then Utah Territory. Under Utah’s antipolygamy law, “cohabitation” essentially refers to a legally married person living with another person or persons (to whom they are not legally married) and holding them out as their spouse(s). Cohabitation is still used in Utah to prosecute Mormon polygamy, but not monogamous unmarried couples, adultery, or other kinds of non-Mormon religious plural marriage. To be clear: the decision in Brown v. Buhman did not legalize polygamy but nullified Utah’s criminalization of “cohabitation” in its antipolygamy statute. Had the case made it to the Supreme Court the issue of a constitutional right to practice polygamy, that is, a right to engage in bigamy, would not have been on the table; rather, the right to “religious cohabitation” would have been decided.
5. 5. While Obergefell ensured gay marriages would be allowed across the nation, Brown v. Buhman only made it to the Tenth Circuit Court of Appeals. In April 2016 the Tenth Circuit ordered dismissal of the case (and by extension the findings of the previous court) on the grounds that the Utah County Attorney’s Office policy of limiting polygamy prosecutions to those involving child abuse, bigamy, fraud, and/or violence meant that the Browns had no credible fear of prosecution and thus no standing to bring the case in the first place. While the Browns appealed the Tenth Circuit Court’s decision to the Supreme Court in September 2016, the Supreme Court denied certiorari in January 2017, finalizing the Tenth Circuit’s decision and leaving Utah’s criminalization of cohabitation intact. Following the Tenth Circuit’s decision the Utah Legislature sought to revise the state’s bigamy statute to avoid future legal challenges. The proposed bill, HB 99, was narrowly passed in March 2017. And, most recently, in March of 2020, the Utah Legislature completely revised its antipolygamy law, significantly reducing the penalty for “cohabitation,” a development that is discussed further below.