Project #26638 - Case Brief

The Final Project for this course is an Appellate Brief-style argument for one of your case issues. You will also be preparing and submitting a Docketing Statement and Notice of Appeals for your case.

Project – Case Briefs:

You will be turning in at least three case briefs in support of your appeal. Begin this process now, while you are conducting the research.

An appellate brief-style argument is similar to an analysis you might prepare for a memorandum. Your argument should begin with a statement of the issue presented. This is a legal question, and should be contained in one sentence. Your argument should then take that issue and dissect it for the court, backing up every point with case law or other primary authority. You should assume that the judge reading the argument knows nothing about the case and write your argument completely but concisely. This is your chance to convince your reader of why they should rule in your favor.



Brown v. Buhman Clinton McGhar Email this Author 3/4/2014 9:41:46 AM

Brown v. Buhman, 947 F.Supp.2d 1170 (2013)



Kody Brown and his “wives” sued in federal district court, Utah District, Central Division, with Judge Clark Waddoups presiding, for the right to cohabitate legally with more than one person. The defendant is Jeffrey R. Buhman, County Attorney for Utah County. Kody and his family are fundamentalist Mormons. They live a polygamous lifestyle. Kody is legally married to only one of the women, while the rest simply cohabitate, yet are also referred to as “wives”. Kody and his family fled Utah after the police began investigating them for the crime of bigamy. Kody sued in federal court claiming that the Utah Anti-bigamy law violates his constitutional rights.


Does the Utah Anti-bigamy statute violate the Plaintiff’s due process and free exercise rights under the U.S. Constitution?


Strict Scrutiny test- this test is applied when a fundamental Constitutional right is at stake. There must be a compelling government interest for a statute to pass this test. Usually statutes subjected thereto fail. This test has a higher standard than does the Rational Basis test.

Rational Basis test- this test is the default test applied to any challenged statute. The statute must have a rational relationship with the reason given for creating the statute, and it must serve a legitimate public purpose. Most statutes subjected thereto pass this test.

Due Process Clause- the Due Process Clause of the 5th Amendment covers the federal government, and the 14th Amendment extends Due Process to the state governments.

Free Exercise Clause- the 1st Amendment guarantees that government does not infringe upon the free exercise of religion.

Smith rule – This rule states that a law must be neutral, having general applicability without targeting any particular social group.

Utah Code Ann. § 76-7-101 (2013) – Utah Anti-bigamy Statute

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person. (2) Bigamy is a felony of the third degree (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.


The court divided the question concerning the constitutionality of the Utah Anti-bigamy Statute into two parts. The one part concerns bigamy as in having a license to marry more than one person or going to another county or state in order to obtain a legal status of marriage while already being legally married to another person. The other part pertains to the cohabitation prong of the statute “the person purports to marry another person or cohabits with another person” (Utah Code Ann. § 76-7-101 (2013)). This is referred to as the cohabitation prong.

The court found that the bigamy prong of the statute was not at issue in this case. All fifty states have a statute prohibiting marrying more than one person legally. The Kody Brown was not asking for the right to be legally married to more than one person, so the bigamy prong is not being challenged. The court has also found for the sake of thoroughness due to the importance of the issue in Utah that bigamy is not a fundamental constitutional right.

The court went on to address the cohabitation prong which is the most important, pertinent part of the statute for this case. The court found that the cohabitation prong violated due process on two accounts. The first account is that the statue as interpreted is too vague. Vague statutes that are not definitive enough violate due process. The statute states “to marry another person or cohabits with another person”. The State of Utah interprets marry not only as legal marriage wherein the couples have a license, but where another person moves in with a couple supposing to be a second spouse. This waters down the definition of marriage in the statute. Does this mean that all couples living together are married?

The second account on which this statute violates due process is that it does not pass the Smith Rule. The Smith Rule states that a law must have general applicability without targeting any particular social group. There are two types of neutrality: facial neutrality and operational neutrality. As far as facial neutrality is concerned, the statute does not explicitly mention fundamentalist Mormons or any other religious group, so passes this first criterion. There is also the operational neutrality in which a law does not discriminate against a group on its face, yet is interpreted and applied in such a way to target against that group. The State of Utah is certainly not going around arresting everyone that cohabitates together. Although admittedly some non-religious polygamists have been prosecuted under the law, the way in which the law is used seems to target Mormon fundamentalists particularly. The law is even used to prosecute religious polygamists when there is evidence lacking for any other charge in order to save people from perceived danger. The court rejects this use of the law to use as a catch-all type of statute to conveniently use when no other charge may be made as well as the targeting of a specific group in the application of the law even if not in the words of the law.

The Rational Basis test applies to any statute that does not involve a fundamental constitutional right. The court has found that bigamy is not a fundamental constitutional right, and laws against bigamy pass the Rational Basis test in that the law does serve a legitimate public purpose. The cohabitation prong will require a higher test, because it brings up a fundamental constitutional right. Strict Scrutiny is applied to all statutes in which a fundamental constitutional right is challenged. The court has found that there is an inherent constitutional right to privacy which the government does not have a right to invade without Due Process. There is no compelling government interest in outlawing consensual cohabitation between unmarried people. Also the cohabitation prong is found to violate the Free Exercise Clause. This law infringes on fundamentalist Mormons constitutional right to the free exercise of their religion. There is no compelling governmental interest for denying this right to them.


The court finds for the Plaintiff. The cohabitation prong is unconstitutional.


P.S. For this assignment I need three case briefs connected to Polygamy cases 

Subject Law
Due By (Pacific Time) 04/05/2014 12:00 am
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