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 potentially decriminalize a way of life for tens of thousands of Mormon fundamentalists practicing polygamy, most of whom live in Utah.
The state, meanwhile, has publicly said it won’t prosecute consenting adult polygamists unless there are other crimes involved, but insists 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, claiming the Browns no longer have standing since they aren’t subject to prosecution.
During 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 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 now living in Nevada.
Turley also questioned both the state and county policies, noting 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 citizens from 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 Brown’s 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 openly practiced by members of The Church of Jesus Christ of Latter-day Saints – would be banned in the state constitution.
The practice has been illegal under federal law in the U.S. since the 1860s.
The Browns are members of the Apostolic United Brethren and say they practice polygamy as part of their religious beliefs.
And like most polygamists, Brown only has a valid marriage license with his first wife, Meri. He married the other three in religious ceremonies. They consider themselves “spiritually married.”
Fewer than a dozen Utah cases have challenged the law – none successfully. It has most commonly been used to prosecute polygamists typically when the defendants were also charged with other crimes, such as child abuse. The criminal investigation into Warren Jeffs, for instance, and his polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints group, began as a probe into child sex abuse allegations.
He is now serving a life sentence in Texas after convictions on child sex and bigamy charges.
Some experts liken the issue to gay marriage or sodomy bans, but note neither carries the historical stigma that comes with polygamy.
Polygamy “opens up a whole can of legal worms that is not really opened with the same-sex marriage issue,” said Stanford University constitutional law expert Jane Schacter. She noted that polygamy throughout history has been associated with underage marriages and child sex abuse.
Regardless of whether there are polygamous relationships among consenting adults where no other crimes are occurring, that historical stigma persists, she said.
“It’s not an issue I think will be laughed out of court, but I don’t think it is poised for a victory at this point,” Schacter added. “Contemporary law under the First Amendment regarding the exercise of religion is just not very friendly to the claims of polygamists.”