SALT LAKE CITY — An attorney representing a polygamist at the center of the TLC reality show “Sister Wives” is pointing to the recent U.S. Supreme Court ruling legalizing same-sex “marriage” in his fight against Utah’s appeal of a federal decision striking down the state’s ban on polygamous cohabitation.
“From the rejection of morality legislation in Lawrence to the expansion of the protections of liberty interests in Obergefell, it is clear that states can no longer use criminal codes to coerce or punish those who choose to live in consensual but unpopular unions,” attorney Jonathan Turley wrote on behalf of plaintiff Kody Brown.
“This case is about criminalization of consensual relations and there are 21st century cases rather than 19th century cases that control,” he said.
“Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults,” Turley also told reporters in 2011. “There is no spectrum of private consensual relations—there is just a right of privacy that protects all people so long as they do not harm others.”
As previously reported, Brown of the TLC reality show Sister Wives, along with his four “wives,” Meri, Janelle, Christine and Robyn, filed suit in 2011 to challenge parts of the law that they claimed violated their privacy rights.
The five had been under investigation by state officials for violating the statute, and moved to Nevada to escape punishment. Brown is married to one of the women, and considers his relationship with the other three women as being “spiritual unions.” He has fathered 17 children with his four lovers.
While all states prohibit bigamy–entering into multiple marriages–Utah also bans residents from living together in a polygamous relationship. Brown, a member of the Apostolic United Brethren Church, a fundamentalist Mormon sect, contended that such a prohibition violates his freedom of religion.
In December 2013, Judge Clark Waddoups, nominated to the bench by then-president George W. Bush, sided with Brown in determining that Utah’s prohibition on polygamist cohabitation violated the First and Fourteenth Amendments, and interfered with the right to privacy. He pointed to the 2003 decision in Lawrence v. Texas, which decriminalized sodomy in the nation, and differentiated unmarried sexual conduct from criminal bigamy.
“Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence,” he wrote. “The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the statute, ‘it is, of course, the state that has equated private sexual conduct with marriage.’”
Therefore, because Brown does not claim to be married to all of the women–nor does the state ban cohabitation in premarital or adulterous relationships—Waddoups threw out the cohabitation section of the statute, while upholding the prohibition on bigamy.
Last August, Waddoups issued his final ruling in the matter, striking the law and ordering the state to pay Brown’s attorney’s fees surrounding the lawsuit. Officials in Utah then appealed to the 10th Circuit Court of Appeals in May, asserting that polygamous relationships are harmful to women and children.
“Utah has an interest in regulating marriage because it is an important social unit, and this interest remains as this court has recently recognized regardless of how other state provisions regulating marriage are evaluated for their constitutional soundness or infirmity,” Utah Solicitor Parker Douglas wrote in his brief.
But Brown and his attorney are contending otherwise in their submission to the court this week.
“By only striking the cohabitation provision, the district court left Utah with the same law maintained by most states in the Union prohibiting bigamy,” Turley wrote. “What was lost to the state is precisely what is denied to all states: the right to impose criminal morality codes on citizens, compelling them to live their lives in accordance with the religious or social values of the majority of citizens.”