Solid Challenge to Utah’s Bigamy Law

SALT LAKE CITY (CN) – The stars of the “reality” TV show “Sister Wives” want to return to Utah, and have challenged the state’s bigamy law in Federal Court. Kody Brown is married to just one of his four “wives” and says Utah cannot prosecute them “solely because they call themselves a family in the eyes of their church” and live as a “plural family.”

     Brown and his so-called sister wives – Meri, Janelle and Christine Brown, and Robyn Sullivan – are represented by Jonathan Turley, a law professor at George Washington University in Washington, D.C.
     Kody Brown is married only to Meri. They claim Utah’s bigamy law, which chased them to Nevada in January violates 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 says 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 stature for maintaining a plural family,” the complaint states.
     The move was far from ideal, the family says, and they’re ready to return to the Beehive State. They say they want to rejoin relatives and the fundamentalist Apostolic United Brethren Church, a Mormon offshoot based in Salt Lake City.
     “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,” according to the complaint.
     Citing Justice Louis Brandeis’ famous dissent in Olmstead v. United States (1928), that “‘the right to be left alone [is] the most comprehensive of rights, and the right most valued by civilized men,'” the Browns say, “The State of Utah does not (and presumptively cannot) criminalize consensual intimate relationships, including homosexual relationships, between unmarried adults.
     “Like officials in all states, Utah officials deal routinely with adults living together in intimate relationships without marriage licenses, including individuals who produce children out of wedlock or through adulterous affairs.
     “Adults are allowed to live openly in such intimate relationships so long as they do not commit a collateral crime, such as acquiring multiple marriage licenses in violation of anti-bigamy provisions.
     “While all other adults are allowed to live and have children in unmarried or adulterous relationships, those adults who live in such households pursuant to religious, as opposed to non-religious, reasons are subject to prosecution in Utah.
     “The Brown family does not hold multiple marriage licenses, nor are its plural relationships legitimated and sanctioned by the state.
     “The Browns are a plural family in which only one couple, Kody Brown and Meri Brown, holds an official marriage license.
     “Despite the fact that the Browns have not obtained multiple marriage licenses, they are subject to criminal prosecution (and have been threatened with such prosecution) solely because they call themselves a family in the eyes of their church.” (Parentheses in complaint.)
     The family adds: “Despite years of investigation and total transparency by the Browns, Utah law enforcement officials have never found any evidence that the Browns committed any crime (beyond the allegation of bigamy),” nor have they been accused of fraud, child abuse or spousal abuse.
     They claim that “The disparate treatment of polygamists denies them the basic liberties and equal protection under the law guaranteed by the First and Fourteenth Amendments.”
     The Browns claim that Utah’s bigamy law violates the U.S. Supreme Court ruling in Lawrence v. Texas (2003) in that the statute infringes upon consenting adults. And the state’s criminalizing of “bigamy” as opposed to “polygamy” is also flawed, the Browns say.
     “Unlike polygamy, bigamy is often done without the knowledge of one or more spouses, representing plural marriage without the consent of a partner,” the complaint states. Bigamists also “often seek and secure official recognition of their marriages.”
     But the Browns live as a plural family with the knowledge and consent of all, and without official recognition of plural marriages by the states.
     Utah officials estimate that there may be almost 30,000 polygamists in the state, according to the complaint.
     Joseph Smith, founder of the Mormon Church, was a polygamist. Utah had to disavow the practice to gain admission as a state in 1890.
     Before the launch of “Sister Wives,” Utah Attorney General Mark Shurtleff told Kody Brown 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, according to the complaint.
     Shurtleff is a defendant in the 39-page lawsuit, as are Gov. Gary Herbert and Utah County Attorney Jeffrey Buhman.
     “While we understand that this may be a long struggle in court, it has already been a long struggle for my family and other plural families to end the stereotypes and unfair treatment given consensual polygamy,” Brown said in a statement posted on his attorney Turley’s website.
     Turley added: “We believe that this case represents the strongest factual and legal basis for a challenge to the criminalization of polygamy ever filed in the federal courts. We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs.”
     Bigamy, a third-degree felony, is punishable by up to 5 years in state prison.
     The Browns seek declaratory judgment that Utah’s bigamy law violates First and 14th Amendments, and a permanent injunction enjoining its enforcement against their plural family.
     Turley is representing them pro bono, with local counsel Adam Alba, of Centerville, Utah.

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