IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN, Plaintiffs, v. JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County,
 
Defendant.
MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
 Case No. 2:11-cv-0652-CW Judge Clark Waddoups
TABLE OF CONTENTS
Introduction Procedural Background Factual Background Historical Background Analysis I.
 
 No Genuine Dispute As To Any Material Fact II.
 
Cohabitation in the 1973 Statute A.
 
The Utah Supreme Court’s Interpretation of “Marry” in the Statute B.
 
Strict or Heightened Scrutiny 1.
 
Heightened Scrutiny under the
Glucksberg
 Framework a. Polygamy  b. Religious Cohabitation 2.
 
Strict Scrutiny under the Free Exercise Clause a. Polygamy  b. Religious Cohabitation i. Common-law marriage affected religious cohabitation in the nineteenth century. ii. The Statute is facially neutral under
 Hialeah
. iii. The Statute is not operationally neutral under
 Hialeah
. iv. The Statute is not generally applicable under
 Hialeah
. v. The cohabitation prong is not narrowly tailored to advance a compelling state interest.
 
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3.
 
Heightened Scrutiny under
Smith
’s Hybrid Rights Analysis C. Rational Basis Review under the Due Process Clause D. Void for Vagueness under the Due Process Clause III. “Purports to Marry” in the 1973 Statute A. Construction of the Statute B. Understanding the Enabling Act and the Irrevocable Ordinance Conclusion
INTRODUCTION
Before the court are the parties’ cross motions for summary judgment relating to Plaintiffs’ facial and as-applied constitutional challenges to Utah’s bigamy statute, Utah Code Ann. § 76-7-101 (2013) (the “Statute”): Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 55). For the reasons discussed  below, the court GRANTS Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant’s Motion for Summary Judgment (Dkt. No. 55). Accordingly, in Part II below the court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. As further analyzed in Part III below, after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute. The court also terminates as moot Plaintiffs’ Motion to Strike Defendant’s Cross-Motion for Summary Judgment. (Dkt. No. 60.)
PROCEDURAL BACKGROUND
 Plaintiffs named Utah Governor Gary R. Herbert, Utah Attorney General Mark Shurtleff, and Utah County Attorney Jeffrey R. Buhman in a lawsuit challenging the Statute as unconstitutional filed on July 13, 2011. The court ruled in its Memorandum Decision and Order
 
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dated February 3, 2012 that Plaintiffs had standing to pursue the action against Defendant Buhman but dismissed Defendants Herbert and Shurtleff from the case, finding that Plaintiffs lacked standing to sue them in this action. (Dkt. No. 31.) Plaintiffs filed their Motion for Summary Judgment presenting detailed arguments on seven constitutional claims including due  process, equal protection, free speech, free association, free exercise, the Establishment Clause, and 42 U.S.C. § 1983. (Dkt. No. 49.) Defendant Buhman responded by filing a Motion to Dismiss for Mootness at that time. (Dkt. No. 46.) On the date designated for response briefing Defendant Buhman then filed his Cross Motion for Summary Judgment and Response to Plaintiffs’ Motion for Summary Judgment (Dkt.  No. 55)
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 and a Motion to Stay Plaintiffs’ Motion for Summary Judgment Proceedings Pending a Determination of Mootness (Dkt. No. 58). After the court heard and resolved Defendants’ motions, Defendant completed briefing on the motions for summary judgment. The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” (Pls.’ Reply Mot. Summ. J. 2 [Dkt. No. 71].) Finally, outside of the briefing schedule ordered by the court, Defendant filed a Reply (Dkt. No. 73) in which he, for the first time, provided academic discussion about “social harms” arising from religious cohabitation in Utah, though no admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013.
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Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims.
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