(CN) – The 10th Circuit on Monday struck down a federal judge’s ruling that decriminalized polygamy in Utah and had been a boon to stars of the reality TV show “Sister Wives.”
Kody Brown and his so-called sister wives – Meri, Janelle and Christine Brown and Robyn Sullivan – claimed in 2011 that the Utah’s bigamy law, which chased them from the Beehive State to Nevada, violated the First and 14th Amendments.
Brown uprooted his family, which includes 16 children and stepchildren, from Lehi, Utah to a Las Vegas suburb after their show on the TLC network made their family situation plain to see.
Brown claimed he was “civilly married” to Meri Brown and “spiritually married” to the other three women.
“In January 2010, he and the co-plaintiffs fled Utah for fear that Utah law enforcement officials would prosecute them under the state’s criminal bigamy statute for maintaining a plural family,” their complaint stated.
The fundamentalist Mormons claimed that the move was far from ideal and that they were ready to return to Utah.
However, the complaint added, “While they would like to return to Utah, the Browns fear that they will be arrested and separated from their children if they do so.”
U.S. District Judge Clark Waddoups dropped Utah Gov. Gary Herbert and Attorney General Mark Shurtleff from the action in 2012, leaving Utah County Attorney Jeffrey Buhman as the sole defendant.
Waddoups sided with the Browns in 2013, ruling the bigamy law was “facially unconstitutional.”
Specifically, Waddoups said the phrase “or cohabits with another person” was a violation of both the First and 14th amendments.
Waddoups added that while there was no “fundamental right” to practice polygamy in the state, the issue centered on “religious cohabitation.”
The Church of Jesus Christ of Later-day Saints, or Mormons, actively practiced polygamy in the 1800s. In 1890, then-LDS president Wilford Woodruff received a “revelation” that the leaders of the church should “cease teaching the practice of plural marriage,” church officials say.
Waddoups said that when Mormons practiced polygamy, “religious cohabitation” in Utah could have actually resulted in “multiple purportedly legal marriages.” Today, simply living together doesn’t amount to being “married,” he added.
Waddoups issued his final ruling in 2014, finding that Buhman violated the Browns’ constitutional rights when he oversaw a 2010 investigation into whether the family was committing bigamy.
“In severing the cohabitation prong of Utah’s anti-bigamy statute in its memorandum decision and order granting in part plaintiffs’ motion for summary judgment dated Dec. 13, 2013, the court has therefore provided the relief sought while leaving the statute in force as narrowly construed in the absence of the cohabitation prong,” Waddoups wrote. “That order is fully incorporated herein for purposes of the below final judgment in this case.”
But the 10th Circuit said on Monday that Waddoups “erred by proceeding to the merits” rather than dismissing the case as moot as Utah County had asked, since Brown and his four wives never actually faced bigamy charges and would not face bigamy charges in the future.
Prosecutors had decided that consenting adults with multiple wives would not be prosecuted, and Buhman’s office closed its file on the Browns in 2012 – adopting a policy to prosecute bigamy only in cases where someone induced a partner to marry through misrepresentation or was suspected of committing a collateral crime, including fraud or abuse.
“The Browns fall into neither category,” Circuit Judge Scott Matheson pointedly wrote for the panel.
“Assuming the Browns had standing to file suit in July 2011, this case became moot when Mr. Buhman announced the Utah County Attorney’s Office in May 2012,” the 49-page ruling said. “That policy eliminated any credible threat that the Browns will be prosecuted.”
The panel remanded the case to Waddoups with an order that he vacate his ruling in the Browns’ favor.
Jonathan Turley, a law professor at George Washington University in Washington, represented the Browns. He said in a statement his clients would appeal the decision, which deepened “their resolve to fight.”
“The Brown family is obviously disappointed in the ruling but remains committed to this fight for the protections of religion, speech, and privacy in Utah,” Turley said. “The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case.”
Utah Attorney General Sean Reyes applauded the decision.
“I understand the desire to decriminalize cohabitation by those otherwise law-abiding citizens living in such households,” Reyes said in a statement. “We want them to come out of any shadows to report crimes, avoid abuse and continue to live peaceful and productive lives. We have worked with them in the past to those ends. And we have not used our scarce resources to prosecute them unless there is evidence of violence, fraud or corruption.”
He added, “Perhaps one day the laws will change, but if they do, it should be through the democratic process.”
Meri Brown filed for legal divorce from Kody Brown, an advertising salesman, in 2015 so that he could adopt Robyn Sullivan’s three children from a previous marriage.
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