SALT LAKE CITY (CN) - A challenge to Utah's bigamy law made by the stars of television's "Sister Wives" will move forward, a federal judge ruled, but it cannot target the governor or attorney general.
Kody Brown and his so-called sister wives - Meri, Janelle and Christine Brown, and Robyn Sullivan - filed a lawsuit against defendants Gov. Gary Herbert, Attorney General Mark Shurtleff and Utah County attorney Jeffrey Buhman in July 2011. The polygamous family claimed that Utah's bigamy law violates the First and 14th Amendments.
Brown says he was "civilly married" to Meri Brown and "spiritually married" to the other three women.
Herbert, Shurtleff and Buhman moved to dismiss the Browns' action for lack of standing, but U.S. District Judge Clark Waddoups kept Buhman as the sole defendant last week.
The Brown family, which includes 16 children and stepchildren, fled from Utah to Nevada under fear of prosecution in January 2010. They want to return to the Beehive State, however, to rejoin relatives and the fundamentalist Apostolic United Brethren Church, a Mormon offshoot based in Salt Lake City, according to their complaint.
Prior to the 2010 launch of the TLC reality show "Sister Wives," Shurtleff allegedly told the patriarch that he would not be criminally pursued if he went public with his lifestyle, so long as child brides, incest, and welfare or tax fraud were not at issue.
The judge noted that "it is undisputed that the state has a policy of not prosecuting polygamy, except in such circumstances where other crimes are being committed."
"Although the court finds that no Utah State official has taken actions that credibly threaten prosecution, this is not the case with the Utah County prosecutor's office," he wrote.
But the show's premiere led some members of the Lehi City Police Department to allegedly threaten legal action against the Browns in interviews with People Magazine, The Salt Lake Tribune and other media outlets.
"As such, Utah County cannot now tenably argue that it has a right to wage a public relations battle in front of the bright-lights of the national media and then exercise the option to abscond to the shadows without consequence when before the court," Waddoups wrote. "The entirety of actions by the Utah County prosecutors tend to show either an ill-conceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law."
"Buhman has submitted nothing to the court that either counters plaintiffs' account of the events, or otherwise suggests that the prosecutorial door is not wide open," the 21-page decision states
Jonathan Turley, the Browns' attorney and a law professor at George Washington University in Washington, D.C., responded to the ruling on his blog.
"I have informed the Brown family of the decision," he wrote. "They are both deeply thankful to the court and appreciative of the opportunity to present their case against this statute. The state has long insisted that this law is constitutional and that it may criminalize consensual private conduct between adults. ... We remain confident that this law cannot withstand constitutional scrutiny and we are eager to reach merits in the case."
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