BRONSON v. SWENSEN
500 F.3d 1099 (2007)
J. BRONSON, G. Lee Cook, and D. Cook, Plaintiffs-Appellants,
Sherrie SWENSEN, Salt Lake County Clerk, Defendant-Appellee.
United States Court of Appeals, Tenth Circuit.
August 29, 2007.
Brian M. Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.
Mark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney General), Salt Lake City, UT, for Defendant-Appellee.
Before TACHA, Chief Judge, HARTZ and HOLMES, Circuit Judges.*
HOLMES, Circuit Judge.
Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook ("plaintiffs") subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook. G. Cook and J. Bronson filed an application for a marriage license, and Defendant-Appellee Sherrie Swensen ("Swensen"), the Clerk for Salt Lake County, Utah, refused to issue the marriage license. Plaintiffs subsequently brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's refusal to issue the marriage license violated their associational, substantive due process, and free exercise rights under the First and Fourteenth Amendments to the United States Constitution.
The district court held that plaintiffs possessed standing to challenge the constitutionality of Utah's civil and criminal prohibitions against the practice of polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of plaintiffs' claims, the district court applied controlling Supreme Court and Tenth Circuit precedent and found the absence of a constitutional violation. Consequently, the district court granted summary judgment to Swensen on all of plaintiffs' claims.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. After concluding that plaintiffs have forfeited any challenge to the constitutionality of Utah's civil prohibition of polygamous marriages, we hold that plaintiffs lack standing to bring claims against Swensen based upon the purported unconstitutionality of Utah's criminal prohibition of polygamy. We therefore VACATE the district court's judgment in favor of Swensen on the merits of these criminal-prohibition claims and REMAND the case for entry of an order dismissing these claims for lack of subject matter jurisdiction.
A. Legislative Background
In 1894, Congress passed the Utah Enabling Act, which demanded as a condition of statehood that Utah enact an "irrevocable" ordinance preserving the security of religious beliefs, but forever prohibiting "polygamous or plural marriages." See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 ("That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited." (emphasis in original)). Utah complied with this requirement, and, in 1895, a nearly identical version of this proscription was included in Article III of Utah's Constitution: