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Federal Court Rejects Challenge to Montana Law Against Plural Marriage

Posted on: March 13th, 2018 by Art Leonard No Comments

U.S. District Judge Susan P. Watters has accepted a recommendation from Magistrate Judge Timothy Cavan to grant the state’s motion for summary judgment in Collier v. Fox, 2018 WL 1247388 (D. Mont., March 9, 2018), adopting Findings and Recommendations, 2018 WL 1247411 (D. Mont., Feb. 22, 2018), a challenge to the constitutionality of Montana’s ban on plural marriage.

Nathan and Vicki married in South Carolina in 2000, and remain married today. “Nathan is also in a committed romantic relationship with Christine [Parkinson],” wrote Judge Cavan, “and they desire to legally marry.  Vicki and Christine are aware of Nathan’s relationship with one another, and each consents to be married to Nathan simultaneously.”  They have been living together and “raising their eight children jointly for several years.”

Nobody has threatened them with prosecution, but when Nathan and Christine applied for a marriage license, they were turned down by the Yellowstone County clerk, who wrote them that their request “could not be granted because granting the license would place the Colliers in violation of Montana Law,” specifically Mont. Code Ann. Secs. 45-5-611 and 612, which make it a crime to enter into a multiple marriage or to marry somebody who is already married to somebody else.

Judge Cavan found that they lacked standing to challenge these laws, because nobody is prosecuting them or threatening to do so, and Montana has never prosecuted anybody under these laws.

Further, wrote Judge Cavan, the Supreme Court’s decision in Reynolds v. U.S., 98 U.S. 145 (1878), rejecting a constitutional challenge to the Utah territory bigamy law, has never been overruled and is still cited as good law, despite its antiquity.

The Colliers were pinning their hopes on Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in which the Supreme Court identified the right to marry as a fundamental right under the 14th Amendment Due Process Clause, whose denial would also offend equal protection. The Colliers particularly pointed to Chief Justice Roberts’ comment, in dissent, that “it is striking how much the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”  However, Cavan wrote, Roberts had also stated that he did “not mean to equate marriage between same-sex couples with plural marriage in all respects.  There may well be relevant differences that compel different legal analysis.”  Cavan pointed out that Roberts’ dissent “is not binding precedent, and it certainly cannot be said to have overruled Reynolds.”

This writer found both holdings – standing and binding precedent – to be disingenuous. The Colliers were denied a marriage license, which is an injury for purposes of Title III – or at least it was deemed so in dozens of cases leading up to Obergefell.  Furthermore, Reynolds was a suit against the federal government under the 5th Amendment, not a 14th Amendment case, and it predates a raft of subsequent Supreme Court decisions construing the 14th Amendment’s liberty and equality guarantees, making its reasoning practically obsolete. And the precise question presented in the two cases is different.  Not that we are suggesting that an appeal to the 9th Circuit would necessarily be successful….