SALT LAKE CITY, Utah — A federal appeals court has restored Utah’s ban on polygamous cohabitation in stating that the law posed no threat to polygamists since the state has outlined that it will not be enforced unless other crimes are involved.
As previously reported, Kody 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.
Brown considers “Sister Wives” as his avenue to normalize polygamy in the public eye and to combat what he believes is stigma against having multiple relationships.
“When I talked with my children about doing the show, I said we have an opportunity to not only change our world, but to change the world for everyone else,” he told reporters.
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.
In August 2014, 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 2015, 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.
On Monday, the 10th Circuit unanimously overturned Waddoups’ ruling, stating that the lower court should have dismissed the case because Brown and his “wives” had not been charged with a crime and it was not likely that they would have been. The court noted that prosecutors in Utah had discontinued their investigation in 2012 and announced that they would only enforce the polygamous cohabitation law if other laws were violated, such as fraud or abuse.
“The record shows the [prosecutor’s office] has adopted, and intends to abide by, a policy under which the Browns face no threat of prosecution,” Judge Scott Matheson, nominated to the bench by Barack Obama, wrote. “Although Mr. Buhman cannot control his successors and extend his non-prosecution pledge in perpetuity, there is no reasonable expectation the Browns will face prosecution.”
“Similar to our own office policy, Utah County only prosecutes bigamy crimes against those who induce marriage under false pretenses or if there is a collateral malfeasance, such as fraud, domestic abuse, child abuse, sex abuse or other abuse,” also explained Utah Attorney General Sean Reyes in a statement. “As a result of this policy, the 10th Circuit found that there is no harm to the Browns.”
Brown plans to appeal the ruling, either back to the 10th Circuit en banc or to the United States Supreme Court.
“We’re only guilty of trying to love a different way than the norm,” said supporter Brady Williams, who has five “wives.” “They are marginalizing a minority class in the United States. That’s unconstitutional.”