Case 1:15-cv-00083-SPW Document 99 Filed 02/22/18 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

CHRISTINE COLLIER, also known as CV 15-83-BLG-SPW-TJC

Christine Parkinson; VICTORIA
“VICKI” COLLIER; and NATHAN
COLLIER, FINDINGS AND
RECOMMENDATIONS OF
Plaintiffs, U.S. MAGISTRATE JUDGE

v.

TIM FOX, in his official capacity as

Attorney General of Montana; STEVE
BULLOCK, in his official capacity as
Governor of Montana; SCOTT
TWITO, in his official capacity as
Yellowstone County Attorney, and
TERRY HALPIN in her official
capacity as Clerk of the Yellowstone
County District Court,

Defendants.

Plaintiffs Christine Collier, Vicki Collier, and Nathan Collier (the

“Colliers”) bring this action against Tim Fox, in his official capacity as Attorney

General of Montana; Steve Bullock, in his official capacity as Governor of

Montana; Scott Twito, in his official capacity as Yellowstone County Attorney,

and Terry Halpin, in her official capacity as Clerk of the Yellowstone County

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District Court.1 As outlined below, the Colliers allege several claims against the

Defendants under the First and Fourteenth Amendments to the United States

Constitution. (Doc. 33.)

Now pending are the State Defendants’ Motion for Summary Judgment

(Doc. 67) (“Defendants’ Motion”), in which the County Defendants join (Doc. 72),

and the Colliers’ Motion for Summary Judgment (Doc. 75) (“Colliers’ Motion”).

Having reviewed the motions, associated briefing and exhibits, and the applicable

law, the Court makes the following findings and recommendations.

I. Pertinent Facts

The parties generally agree upon the following pertinent facts. Nathan and

Vicki2 were legally married in Dillon, South Carolina, on April 26, 2000. (Doc. 79

at ¶ 3.) They have been married continuously since that date. (Doc. 69 at ¶ 2.)

Nathan also is in a committed romantic relationship with Christine, and they desire

to legally marry. (Doc. 79 at ¶ 1.) Vicki and Christine are aware of Nathan’s

relationship with one another, and each consents to be married to Nathan

simultaneously. (Id.) The Colliers have “committed to raise, support, nurture, and

1
The Court will use the shorthand “State Defendants” when referring to defendants
Fox and Bullock, “County Defendants” when referring to defendants Twito and
Halpin, and “Defendants” when referring to all defendants collectively.

2
To avoid confusion resulting from their shared last name, the Court will identify
the plaintiffs by their first names when referring to them individually.

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care for one another’s children, including [Christine’s] children from a prior

marriage.” (Id. at ¶ 4.) The Colliers have parented their eight children jointly for

several years. (Id. at ¶ 5.) There is no evidence to suggest that either of Nathan’s

romantic relationships – with Vicki or with Christine – involves dishonesty,

coercion, fraud, abuse, or violence. (Id. at ¶ 16.)

On June 30, 2015, Nathan and Christine went to the Yellowstone County

Clerk of District Court Marriage License Division to apply for a marriage license;

the application was denied. (Id. at ¶¶ 8-9.) The Yellowstone County Attorney’s

office subsequently sent a letter (the “Denial Letter” or “Letter”) to the Colliers on

July 14, 2015, formally denying the request for a marriage license. (Doc. 22-1.)

The Denial Letter informed the Colliers that their request for a marriage license

could not be granted because granting the license would place the Colliers in

violation of Montana law, citing Mont. Code Ann. §§ 45-5-611 and 612. (Id.)

Those statutes respectively criminalize entering into multiple marriages, and

marrying a person knowing that the person is married to another. Though the

Denial Letter identifies Mont. Code Ann. §§ 45-5-611 and 612 as statutes that

criminalize bigamy, the Denial Letter does not threaten prosecution of the Colliers.

(Id.)

The Colliers responded by bringing this action, challenging the validity of

what they characterize as Montana’s anti-polygamy statutes.

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The Court will discuss additional facts below as necessary.

II. Parties’ Arguments

A. Colliers’ Claims and Requested Relief

The Colliers’ Second Amended Complaint (Doc. 43) contains the following

seven claims under the First and Fourteenth Amendments to the United States

Constitution: (1) that Mont. Code Ann. §§ 45-5-611 and 612 violate the Free

Exercise Clause of the First Amendment (Doc. 43 at ¶¶ 52-66); (2) that Mont.

Code Ann. §§ 45-5-611 and 612 criminalize the exercise of fundamental liberty

interests protected under the Due Process Clause of the Fourteenth Amendment

(Id. at ¶¶ 67-74); (3) that “State anti-polygamy criminal statutes, and State unequal

legal treatment of polygamous marriage,” violate the Establishment Clause of the

First Amendment (Id. at 75-78); (4) that “State anti-polygamy criminal statutes,

and State unequal legal treatment of polygamous marriage,” violate the Free

Speech Clause of the First Amendment (Id. at ¶¶ 79-83); (5) that Mont. Code Ann.

§§ 45-5-611 and 612 violate the Equal Protection Clause of the Fourteenth

Amendment (Id. at ¶¶ 84-96); (6) that “State anti-polygamy laws, and State

unequal legal treatment of polygamous marriage,” violate the right of free

association under the First Amendment (Id. at ¶¶ 97-99); and (7) that Defendants’

enforcement of Mont. Code Ann. §§ 45-5-611 and 612, acting under color of State

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law, deprives the Colliers of “numerous rights secured by the First and Fourteenth

Amendment,” in violation of 42 U.S.C. § 1983 (Id. at 100-101).

As relief for the foregoing claims, the Colliers request (1) an order finding

that Mont. Code Ann. §§ 45-5-611 and 612 violate the First and Fourteenth

Amendments, and 42 U.S.C. § 1983 (Id. at ¶ 102); (2) that the Court enjoin, both

preliminarily and permanently, Defendants’ enforcement and application of Mont.

Code Ann. §§ 45-5-611 or 612 and applicable civil laws (Id. at ¶¶ 103-104); (3)

that Defendants issue a marriage license to Christine and Nathan (Id. at ¶ 105); and

(4) award the Colliers attorney fees and costs (Id. at ¶ 108).

B. The Parties’ Motions

The Colliers have filed a motion for summary judgment, generally arguing

that Montana’s criminal and civil anti-polygamy statutes are unconstitutional and

violate their First and Fourteenth Amendments rights.

The State responds that the constitutionality of state anti-polygamy statutes

was established in Reynolds v. U.S., 98 U.S. 145 (1878), which directly controls

the outcome of this case. The State maintains that the Colliers have failed to

establish either the Court’s authority to disregard Reynolds or, assuming the Court

has such authority, legal justification for doing so. (Id. at 7-14.) The County

Defendants also oppose the Collier’s motion for summary judgment, and similarly

argue that Montana’s anti-polygamy laws do not violate the United States

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Constitution.

The State Defendants have also filed a Motion for Summary Judgment,

arguing, inter alia, that the Colliers lack standing to challenge the anti-polygamy

laws at issue. (Doc. 68 at 10-16.) In this regard, Defendants argue that the

Colliers’ claims are purely hypothetical, because the Colliers have never been

threatened with any prosecution and their claims therefore are not ripe. The

County Defendants have joined in the State Defendants’ motion.

III. Legal Standard

Summary judgment is appropriate where the moving party demonstrates the

absence of a genuine issue of material fact and entitlement to judgment as a matter

of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Material facts are those which may affect the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a

material fact is genuine if there is sufficient evidence for a reasonable fact-finder to

return a verdict for the nonmoving party. Id. “Disputes over irrelevant or

unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec.

Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The party seeking summary judgment always bears the initial burden of

establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at

323. The moving party can satisfy this burden in two ways: (1) by presenting

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evidence that negates an essential element of the nonmoving party’s case; or (2) by

demonstrating that the nonmoving party failed to make a showing sufficient to

establish an element essential to that party’s case on which that party will bear the

burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this

initial burden, summary judgment must be denied and the court need not consider

the nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-

60 (1970).

If the moving party meets its initial responsibility, the burden then shifts to

the opposing party to establish that a genuine issue as to any material fact actually

does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). In attempting to establish the existence of this factual dispute, the

opposing party must “go beyond the pleadings and by ‘the depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.

56(e)). The opposing party cannot defeat summary judgment merely by

demonstrating “that there is some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216,

1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of

the nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at

252).

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“Where the parties file cross-motions for summary judgment, the court must

consider each party’s evidence, regardless under which motion the evidence is

offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “It

is well-settled in this circuit and others that the filing of cross-motions for

summary judgment, both parties asserting that there are no uncontested issues of

material fact, does not vitiate the court’s responsibility to determine whether

disputed issues of material fact are present. A summary judgment cannot be

granted if a genuine issue as to any material fact exists.” U.S. v. Fred A. Arnold,

Inc., 573 F.2d 605, 606 (9th Cir. 1978).

IV. Analysis

A. Standing

As outlined in the Court’s previous Findings and Recommendations (Doc.

23), Federal courts are courts of limited jurisdiction. Article III, § 2 of the United

States Constitution empowers them to hear only “cases” and “controversies.” SEC

v. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972). “A justiciable

controversy is thus distinguished from a difference or dispute of a hypothetical or

abstract character[.]” Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S.

227, 240 (1937). As a result, federal courts lack the power to issue “an opinion

advising what the law would be upon a hypothetical state of facts.” Id. at 241.

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The case or controversy requirement of Article III of the United States

Constitution limits federal court’s subject matter jurisdiction by requiring that

plaintiffs have standing and that claims be ripe for adjudication. Chandler v. State

Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-1122 (9th Cir. 2010). Standing

“addresses whether the plaintiff is the proper party to bring the matter to the court

for adjudication.” Id. (citing Erwin Chemerinsky, Federal Jurisdiction § 2.3.1, at

57 (5th ed.2007)). “Standing is a jurisdictional requirement, and a party invoking

federal jurisdiction has the burden of establishing it.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). “Further, standing is claim- and relief-specific,

such that a plaintiff must establish Article III standing for each of her claims and

for each form of relief sought.” In re Carrier IQ, Inc., 78 F.Supp.3d 1051, 1064-

1065 (N.D. Cal. 2015) (quotations omitted) (citing DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352 (2006)).

To establish standing, the Plaintiff must show three elements. First, the

plaintiff must have “suffered an ‘injury in fact’ – an invasion of a legally protected

interest which is (a) concrete and particularized; and (b) actual or imminent, not

‘conjectural’ or ‘hypothetical’[.]” Lujan, 504 U.S. at 560 (internal citations

omitted). Second, the plaintiffs must establish “a causal connection between the

injury and the conduct complained of” by proving that their injury is fairly

traceable to the challenged conduct of the defendant and not the result of an

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independent action of a third party not before the court. Id. Third, the plaintiffs

must show that their injury will likely be redressed by a favorable decision. Id. at

561.

In their summary judgment motion, the State Defendants argue that the

Colliers do not have standing to bring this action because they fail to show an

“injury in fact.” (Doc. 68 at 11-15.) They argue the Colliers have not shown a

reasonable likelihood that the Defendants will enforce the bigamy statutes against

them but rely only on the existence of the statutes alone. (Id. at 13.) Defendants

also argue that the Colliers’ claims are not ripe because they have never been

threatened with prosecution. (Id. at 15-16.) As Defendants put it, “the Colliers

admit that they have never been threatened with enforcement of the bigamy laws

and rightfully so, since they are not violated them.” (Id. at 16.)

Before addressing the standing issue with respect to Nathan and Christine,

the Court will dispense with the claims brought on behalf of Vicki. The Colliers

do not identify any manner in which Vicki has suffered or could suffer an injury in

fact based on any of Montana’s anti-polygamy laws. She and Nathan are legally

married and have been married at all times material to this case. There is no

evidence to suggest that Vicki is attempting to marry another person while she is

married (Mont. Code Ann. § 45-5-611), or attempting to marry another person

while knowing that person to be committing bigamy (Mont. Code Ann. § 45-5-

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612). Similarly, Vicki has not applied for and been denied any additional marriage

license, or undertaken any other action that may implicate an anti-polygamy

provision in any Montana civil statute.

The Colliers attempt to satisfy Vicki’s standing requirement by generally

alleging that her “economic and familial interests” have been affected by

Montana’s refusal to allow Nathan and Christine to marry. (See Doc. 43 at ¶ 44.)

But the Colliers do not establish – or make any attempt to establish – that these ill-

defined, nebulous “economic and familial interests” constitute legally protected

interests, as required to find standing.

In short, the Colliers have not presented any evidence to suggest that Vicki

has ever attempted to violate, or has any plan to attempt to violate, any of

Montana’s anti-polygamy laws, or that she has suffered any invasion of a legally

protected interest due to Montana’s anti-polygamy laws. Therefore, the Court

finds that Vicki does not have standing, and recommends that summary judgment

be granted in favor of Defendants as to all of Vicki’s claims.

The Court will now consider whether Nathan and Christine have standing,

first with respect to the criminal bigamy laws and then with respect to any germane

civil laws.

///

///

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1. Montana’s Criminal Anti-Polygamy Statutes

The bulk of the Colliers’ claims are directed at Montana’s criminal anti-

bigamy statutes, Mont. Code Ann. §§ 45-5-611 and 612, and the Colliers’ alleged

fear of criminal prosecution under those statutes. As noted above, § 611

criminalizes marrying while still being married to another, providing in relevant

part: “[a] person commits the offense of bigamy if, while married, the person

knowingly contracts or purports to contract to another marriage . . . .” Section 612

criminalizes marrying a bigamist, and states in part: “[a] person commits the

offense of marrying a bigamist if the person contracts or purports to contract a

marriage with another knowing that the other is committing bigamy . . . .”

It is undisputed that the Colliers have never faced prosecution for violation

of either statute. Accordingly, the Colliers are raising a “pre-enforcement

challenge” to these statutes. In asserting pre-enforcement challenges to a statute,

plaintiffs may meet constitutional standing requirements by demonstrating “a

realistic danger of sustaining a direct injury as a result of the statute’s operation or

enforcement.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298

(1979). But when plaintiffs “do not claim that they have ever been threatened with

prosecution, that a prosecution is likely, or even that a prosecution is remotely

possible, they do not allege a dispute susceptible to resolution by a federal court.”

Id. at 298-299 (internal quotation omitted). Thus, despite the relaxed standing

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analysis for pre-enforcement challenges, “plaintiffs must still show an actual or

imminent injury to a legally protected interest.” Lopez v. Candaele, 630 F.3d 775,

785 (9th Cir. 2010). Neither the mere existence of a statute nor a generalized

threat of prosecution is sufficient to satisfy plaintiffs’ obligation. Thomas v.

Anchorage Equal Rights Commission., 220 F.3d 1134, 1139 (9th Cir. 2000).

The Court considers three factors in determining the genuineness of a

claimed threat of prosecution: (a) whether the plaintiffs have articulated a concrete

plan to violate the law in question; (b) whether the prosecuting authorities have

communicated a specific warning or threat to initiate proceedings; and (c) the

history of past prosecution or enforcement under the challenged statute.

Humanitarian L. Project v. U.S. Treas. Dept., 578 F.3d 1133, 1142 (9th Cir. 2009).

a. Concrete Plan to Violate

There is no dispute that Nathan and Christine are at least attempting to

violate Mont. Code Ann. §§ 45-5-611 and 612. They claim to have entered into a

marital contract, and evidence suggests that they generally refer to each other as

husband and wife. They have also sought, albeit unsuccessfully, a state marriage

license. It is less clear, however, whether Nathan and Christine have articulated

anything that could be considered a “concrete plan to violate” Mont. Code Ann. §§

45-5-611 or 612.

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The State Defendants have taken the position that Nathan’s and Christine’s

declaration to be husband and wife, without the accompanying possession of a

state-issued marriage license, is insufficient to violate the Montana bigamy

statutes. Therefore, this case presents the unusual situation where the State of

Montana has taken the position that the Colliers’ conduct is not criminal, while the

Colliers insist that it is. In light of the State Defendants’ position as to the legality

of the Colliers’ present conduct, however, it is somewhat difficult to conclude that

mere maintenance of the status quo constitutes a concrete plan to violate Mont.

Code Ann. §§ 45-5-611 or 612.

Nevertheless, this Court previously concluded that the Colliers claim to have

a concrete plan to violate the statutes, and the relevant facts have not changed

materially since that finding. (Doc. 23 at 8.) Additionally, for reasons discussed

below, the Court ultimately finds that Nathan and Christine do not have standing to

challenge Mont. Code Ann. §§ 45-5-611 or 612. Therefore, the Court will assume

without deciding that Nathan and Christine can satisfy the first factor in

determining the genuineness of a claimed threat of prosecution.

b. Threat of Prosecution

Though the Colliers generally allege that they “fear that the State will

imminently enforce anti-polygamy criminal statutes” against them, they do not

allege that they have ever been prosecuted under Montana’s criminal bigamy

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statutes, nor do they identify any specific threat of prosecution. (Doc. 43 at ¶ 45.)

The closest the Colliers come to identifying an actual threat of prosecution is their

allegation that “Defendants enforced State anti-polygamy criminal statutes by

using them to justify the State’s denial of a State-issued marriage license to

Christine and Nathan Collier.” (Id. at ¶ 44.) The Colliers are referring here to the

Denial Letter, which specifically states that the Clerk’s Office was correct to deny

the license because “while both of you are lawfully married to each other, you seek

to engage in yet another state licensed marriage. That act, by either or both of you,

would be considered bigamy in Montana.” (Doc. 22-1.) This statement does not

threaten prosecution. Instead, the Letter indicates a second marriage license could

not be issued because, that would constitute a second state-sanctioned marriage,

which would violate Montana’s bigamy statutes.

The Colliers do not argue, and the Court does not find, that the Denial Letter

threatens any actual prosecution. The Colliers offer no other concrete examples or

assertions of a specific threat or intent of Defendants to prosecute them under

Montana’s bigamy statutes. In fact, the entity charged with enforcement of the

bigamy laws – the State of Montana – has taken the position that the Colliers are

not in violation of the laws. Accordingly, this factor weighs strongly against

finding a genuine threat of prosecution.

///

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c. History of Enforcement

The Colliers also are unable to present a history of enforcement. Despite

their avowed “fear” of prosecution, the Colliers have not identified a single

instance of bigamy prosecution in Montana. This lack of past prosecution under

these statutes weighs heavily against finding the Colliers face a genuine threat of

prosecution. The mere existence of the challenged statutes is simply not enough to

demonstrate the constitutionally required standing necessary to challenge these

statutes. See Thomas, 220 F.3d at 1139.

d. Conclusion

Even after giving the Colliers the benefit of the substantial doubt that they

have formulated a concrete plan to violate Mont. Code Ann. §§ 45-5-611 or 612,

the Court finds that the Colliers have failed to demonstrate injury in fact because

they have not shown a threat of prosecution or a history of enforcement, and

therefore they do not have standing to challenge those criminal statutes.

Accordingly, the Court recommends that summary judgment be granted in favor of

Defendants with respect to the Colliers’ challenge to Mont. Code Ann. §§ 45-5-

611 and -612.

2. Montana’s Civil Marriage Laws

Although the Colliers repeatedly reference and challenge the criminal

bigamy laws discussed above in their Second Amended Complaint (see e.g. Doc.

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43 at ¶ 53), they do not explicitly reference any Montana civil statutes.

Defendants, therefore, maintain that the Colliers’ challenge does not reach

Montana’s civil marriage laws.

But in their Second Amended Complaint, the Colliers do generally allege

that they seek “declaratory and injunctive relief against enforcement of Montana

State’s laws banning . . . polygamy, and against Montana State unequal treatment

of, and discrimination against, polygamous families.” (Id. at ¶ 56.) They also

request an order requiring Defendants to “issue a State-issued marriage license to

Christine and Nathan Collier” (Id. at ¶ 105); and they further specify in their

summary judgment motion that the Defendants have deprived them of their rights

by “denying them equal access to the benefits and responsibilities of government-

granted licensure,” citing Mont. Code Ann. § 40-1-401(1)(a). (Doc. 75-1 at 2.)

That section is a civil marriage statute which defines “prohibited marriages” to

include “a marriage entered into prior to the dissolution of an earlier marriage of

one of the parties . . . .” Therefore, the Court finds that the Colliers have

sufficiently raised a challenge to at least that civil marriage statute.

The standing analysis differs with respect to that claim, since the Colliers are

not asserting a pre-enforcement challenge. The undisputed facts demonstrate that

Nathan and Christine applied for a Montana marriage license with the Yellowstone

County Clerk of District Court Marriage License Division and were denied due to

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Nathan’s existing marriage to Vicki. That action is sufficient to confer standing

upon them to challenge Montana’s civil statute prohibiting plural marriage. It

constitutes an alleged invasion of a legally protected interest (the right to marry)

which is (a) concrete and particularized and (b) actual or imminent; (2) the injury

would be fairly traceable Defendants’ refusal to grant the marriage license; and (3)

a favorable decision from the Court could resolve their injury by ordering

Defendants to provide a marriage license.

Accordingly, the Court finds that the denial of Nathan’s and Christine’s

marriage license application provides Nathan and Christine with standing to

challenge Mont. Code Ann. § 40-1-401(1)(a).

B. Ripeness

Defendants also argue, however, that the Colliers’ claims are not ripe. (Doc.

68 at 15-16.) “The [] doctrine of ripeness is a means by which federal courts may

dispose of matters that are premature for review because the plaintiff’s purported

injury is too speculative and may never occur.” Chandler v. State Farm Mut. Auto.

Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010.) Defendants limit their ripeness

discussion to the Colliers’ challenge to the criminal bigamy statutes, and they are

correct that the Colliers’ claims that they have been injured by those statutes is not

ripe. However, the Colliers’ challenge to Mont. Code Ann. § 40-1-401(1)(a) is

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ripe because Nathan and Christine already have applied for and been denied a

Montana civil marriage license.

C. Constitutional Claims

The question of whether state statutes prohibiting polygamy violate the

United States Constitution was answered over a century ago in Reynolds v. U.S., 98

U.S. 145 (1878). Reynolds included a constitutional challenge to a federal statute

which prohibited bigamy in a territory or other place within the exclusive

jurisdiction of the United States. The Supreme Court upheld the validity of that

statute, finding “there cannot be a doubt that, unless restricted by some form of

constitution, it is within the legitimate scope of the power of every civil

government to determine whether polygamy or monogamy shall be the law of

social life under its dominion.” 98 U.S. 145, 166 (1879). The Court further found

that the statute was “constitutional and valid as prescribing a rule of action for all

those residing in the Territories, and in places over which the United States have

exclusive control.” Id.

Although Reynolds is almost 140 years old, it is not antiquated and is still

valid, binding authority. Several recent decisions have relied upon Reynolds to

uphold the constitutionality of anti-polygamy statutes. See e.g. State v. Fischer,

219 Ariz. 408, 412 (Ariz. App. 2008) (rejecting First and Fourteenth Amendment

challenges to polygamy statute, finding “[t]he Supreme Court has not moved away

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from its holding on the issue of polygamy, and the Court has continued to refer to

Reynolds approvingly for the proposition that plural marriages have no claim to

First Amendment protection.”); White v. Utah, 41 Fed.Appx. 325, 326 (10th Cir.

2002) (finding a constitutional challenge to Utah’s prohibition against polygamy

foreclosed by Supreme Court and Tenth Circuit precedent, citing Reynolds); Mayle

v. Orr, 2017 WL 1316269, *2 (N.D. Ill. April 10, 2017) (collecting cases, and

finding a First and Fourteenth Amendment challenge to an Illinois bigamy statute

was foreclosed by Reynolds and its progeny); see also, Employment Div., Dep't of

Human Res. of Oregon v. Smith, 485 U.S. 660, 671 (1988) (citing Reynolds and

noting “bigamy may be forbidden, even when the practice is dictated by sincere

religious convictions”); and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15

(1973) (“[s]tatutes making bigamy a crime surely cut into an individual’s freedom

to associate, but few today seriously claim such statutes violate the First

Amendment or any other constitutional provision.”).

The Colliers point out Chief Justice Roberts’ recent dissent in Obergefell v.

Hodges, 135 S.Ct. 2584 (2015), in which the Court held that same-sex couples

have a constitutionally protected right to marry. In his dissent, the Chief Justice

commented that “[i]t is striking how much the majority’s reasoning [in support of a

fundamental right to same-sex marriage] would apply with equal force to the claim

of a fundamental right to plural marriage.” Id. at 2621 (Roberts, C.J. dissenting).

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Chief Justice Roberts also added, however, that he did “not mean to equate

marriage between same-sex couples with plural marriages in all respects. There

may well be relevant differences that compel different legal analysis.” Id.

Regardless, Justice Roberts’ dissent is not binding precedent, and it certainly

cannot be said to have overruled Reynolds. Mindful of this Court’s place in the

federal judicial hierarchy, it is bound to follow Reynolds unless and until the

Supreme Court decides to revisit the issue. Supreme Court “decisions remain

binding precedent until [that Court sees] fit to reconsider them, regardless of

whether subsequent cases have raised doubts about their continuing vitality.”

Hohn v. U.S., 524 U.S. 236, 252-253 (1998).

To the extent that the Colliers allege Montana’s anti-polygamy laws have

infringed upon rights other than their claimed fundamental right to plural marriage

– such as, inter alia, the rights to cohabitate, intermingle finances, raise children

together, etc. (see Doc. 80 at 13) – the Court does not find these challenges to be

persuasive. First, the Colliers have not presented any evidence that Defendants

have prevented them from exercising any of these alleged fundamental rights; on

the contrary, the evidence suggests that the Colliers already are engaging in all of

the conduct they discuss, with the sole exception being their desire to legally

marry. Given Defendants’ position that the Colliers are not violating any laws in

spite of the fact that they otherwise live together as a family, with all that entails,

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the Court is not persuaded that Montana’s anti-polygamy laws infringe upon any

fundamental right incidental to marriage. Rather, Mont. Code Ann. § 40-1-

401(1)(a) prohibits Nathan and Christine from procuring a legal marriage license

because Nathan is already married to Vicki. Until the Supreme Court overrules

Reynolds, that prohibition, in and of itself, is not unconstitutional.

For the foregoing reasons, the Court recommends that summary judgment be

granted in favor of Defendants with respect to the Colliers’ constitutional challenge

to Mont. Code Ann. § 40-1-401(1)(a).

D. 42 U.S.C. § 1983

Finally, the Colliers seek relief under 42 U.S.C. § 1983, which provides a

civil right of action to redress the deprivation of rights under color of state law.

“Section 1983 is not in itself a source of substantive rights, but merely provides a

method for vindicating federal rights elsewhere conferred. The first step in any

such claim is to identify the specific constitutional right allegedly infringed.”

Albright v. Oliver, 510 U.S. 266, 270 (1994). As discussed at length above (see §

IV(C), supra), there is no constitutional right to multiple marriages, and the

Colliers therefore cannot raise a prima facie claim under § 1983 for any

deprivation thereof. Since the Colliers have not established that they have been

deprived of any other constitutional rights, their § 1983 claim must fail.

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Accordingly, the Court recommends that summary judgment be granted in

favor of Defendants with respect to the Colliers’ claim under 42 U.S.C. § 1983.

E. Other Pending Motions

Pending before the Court are two motions other than the cross-motions for

summary judgment heretofore discussed. These are: (1) the Colliers’ Daubert

Motion in Limine (Doc. 73), which seeks the exclusion of an expert proposed by

the State Defendants, and (2) the State Defendants’ Motion to Strike Previously

Undisclosed Evidence (Doc. 92), which requests that the Court strike an exhibit the

Colliers appended to their Reply to Defendants’ Objections to Plaintiffs’ Statement

of Undisputed Facts (see Doc. 88-1).

The Court considered each of these motions, and found that neither the

expert testimony the Colliers want to exclude nor the documentary evidence the

State Defendants want to exclude materially affected the outcome of the parties’

cross-motions for summary judgment. If these Findings and Recommendations are

adopted and summary judgment is granted in Defendants’ favor, the evidentiary

concerns raised by these non-dispositive motions will no longer be at issue.

Accordingly, the Court recommends that these motions be denied as moot.

//

//

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V. Conclusion

Based on the foregoing, IT IS RECOMMENDED that:

(1) Defendants’ Motion for Summary Judgment – Fed. R. Civ. P. 56

(Doc. 67) be GRANTED;

(2) the Colliers’ Motion for Summary Judgment (Doc. 75) be DENIED;

(3) the Colliers’ Daubert Motion in Limine (Doc. 73) be DENIED as

moot; and

(4) the State Defendants’ Motion to Strike Previously Undisclosed

Evidence (Doc. 92) be DENIED as moot.

NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a copy of

the Findings and Recommendations of the United States Magistrate Judge upon the

parties. The parties are advised that pursuant to 28 U.S.C. § 636, any objections to

the findings and recommendations must be filed with the Clerk of Court and copies

served on opposing counsel within fourteen (14) days after entry hereof, or

objection is waived.

DATED this 22nd day of February, 2018.

_______________________________

TIMOTHY J. CAVAN

United States Magistrate Judge

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