'Sister Wives' family asks judge to allow lawsuit over polygamy to proceed

SALT LAKE CITY - Kody Brown and his four wives just want to live like any other family - free from the threat of being tossed in prison.

But in Utah, just claiming to have more than one wife is a third-degree felony punishable by a sentence of up to five years.

The polygamous family, stars of the TLC show "Sister Wives," has sued Utah and the county they fled from, hoping to persuade a federal judge to overturn the state's bigamy law as unconstitutional.

The case could decriminalize a way of life for tens of thousands of people practicing polygamy, most of whom live in Utah.

State officials have said Utah won't prosecute consenting adult polygamists unless there are other crimes involved but insist the law doesn't overreach.

"It is not protected under religious freedom because states have the right to regulate marriage," said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff.

Utah County Attorney Jeff Buhman in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, contending the Browns no longer have standing because they aren't subject to prosecution.

In a hearing Wednesday in federal court in Salt Lake City, a judge repeatedly asked state prosecutors why he shouldn't allow the case to move forward.

U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was "simply a ruse to avoid having the issue reviewed."

"What's the policy reason behind this ... that would give assurances that similar prosecutions will not be pursued in the future?" Waddoups asked. "What about the next couple?"

Assistant Attorney General Jerrold Jensen, arguing on behalf of Utah County, said there is none but noted there are at least 30,000 practicing polygamists in Utah. "They are not being prosecuted," Jensen said. "Utah County does not want to prosecute people for the practice of polygamy, period."

Jensen could not say the threat of prosecution of other polygamous families had been entirely removed but reiterated state policy. "The plaintiffs here are not going to be prosecuted; therefore the case is moot," he said.

Earlier this year, Waddoups released Shurtleff and Gov. Gary Herbert from the case, citing the state policy that polygamists won't be prosecuted for violating the bigamy law alone. He allowed the case to continue against the county because, at the time, prosecutors there had not made the same declaration.

The Browns' attorney, Washington, D.C., constitutional law professor Jonathan Turley, argued that Brown and his wives - Meri, Janelle, Christine and Robyn - remain victims and continue to live under the stigma of being considered felons. They fled Utah last year and are living in Nevada.

Turley also questioned both the state and county policies, noting that neither is legally binding. "It does not guarantee that the Browns or anyone else won't be prosecuted," Turley said Wednesday, adding that the policies are "clearly an effort to evade a ruling in this case."

The judge said he would decide later whether to allow the case to continue.

Turley argues that under previous U.S. Supreme Court rulings, such as one that struck down Texas' sodomy law, private, intimate relationships between consenting adults are constitutionally protected.

While all states outlaw bigamy, some like Utah have laws that not only prohibit having more than one marriage license but also make it illegal to even purport to be married to multiple partners. Utah's bigamy statute even bans unmarried adult couples from living together and having a sexual relationship.

The Browns' lawsuit doesn't aim to challenge Utah's right to refuse recognition of multiple licenses, nor are the Browns seeking them, Turley said.

Utah's statehood was granted in the 1890s under the condition that plural marriage - which was then practiced by members of The Church of Jesus Christ of Latter-day Saints - would be banned in the state constitution.


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