Lawyers for TLC star Kody Brown and his four “wives” will petition the U.S. Supreme Court to declare constitutional protections for polygamy and “plural families.”
Lyle Denniston of the nonprofit National Constitution Center reports Brown’s lawyers will argue that Brown, his wives, and their children have standing to bring a cause of action against the state of Utah, despite an appellate court ruling to the contrary.
Brown has 18 children by the four women — he is legally married to one and in “spiritual unions” with the other three. The 23-member group lives together is Las Vegas, and first brought an action alleging a constitutional right to polygamy in 2011.
The group’s family life touched off the reality television series “Sister Wives,” which has aired on TLC since 2010. The group fled their home in Lehi, Utah, in 2011 after the program provoked a law enforcement probe — the Browns practice a variant of fundamentalist Mormonism that includes multiple marriages. Though polygamy is illegal in the state of Utah, state authorities will generally pursue a criminal case only in the event of child trafficking or sexual abuse, given the state attorney general’s limited resources.
Though Brown is only legally married to one of his wives, Utah state law also contains a prohibition on cohabitation of multiple adults in essentially marital relationships when one of the adults in question is lawfully married.
“There are tens of thousands of plural families in Utah and other states,” Brown said when filing the case. “We are one of those families. We only wish to live our private lives according to our beliefs. 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.”
Though the criminal case against the Brown’s was dropped in June 2012, they still pursued their challenge to the Utah law, winning an unexpected victory in 2013 when U.S. District Court Judge Clark Waddoups struck down part of the anti-polygamy statute. Though Waddoups ruled that criminalizing polygamy was legitimate under the Glucksberg analysis – which required the Brown’s to demonstrate that polygamy is deeply rooted in the history of the nation and essential to the concept of liberty – he found the provision prohibiting religious cohabitation infringed on a Due Process Clause right to privacy in intimate relationships. Therefore, while the state is not required to issue multiple marriage licenses to the same individual, the court found that the Brown’s family arrangement is constitutionally protected. (RELATED: Gary Johnson On Polygamy: State’s Can ‘Have At It’ [VIDEO])
Waddoups’s ruling was overturned on appeal in the U.S. Court of Appeals for the Tenth Circuit, which found the Brown family lacked standing in the case. The three judge panel wrote that because the Utah authorities had ended their investigation of the group, the Brown’s had not suffered any injury, rendering their cause moot.
The Brown’s attorney, George Washington University Law School professor Jonathan Turley, will argue to the Supreme Court that local prosecutors have not actually abandoned plans to bring charges against the Brown’s, or may choose to do so again in the future. Turley will also argue the anti-polygamy/religious cohabitation statutes cede Utah law enforcement the right to permanently, and invasively, monitor thousands of so-called plural families.
The Supreme Court is unlikely to hear the appeal.
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