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'Sister Wives' family sues to prevent prosecution for polygamy

Kody Brown, star of TLC's 'Sister Wives,' files suit in federal court seeking to prevent prosecution for polygamy under Utah law. The case may force another reexamination of laws governing sexual choices and lifestyles.

By Daniel B. WoodStaff writer / July 13, 2011

In this undated file photo provided by TLC, Kody Brown (c.) poses with his wives, from left, Janelle, Christine, Meri, and Robyn in a promotional photo for TLC's reality TV show, 'Sister Wives.'

Bryant Livingston/TLC/AP

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The US Supreme Court in 1879 ruled that polygamy is "an offense against society," holding that it is not protected by religious freedom, just as "human sacrifice" is not protected. One hundred-thirty-two years later, a lawsuit brought by an openly polygamous family – stars of TLC's reality show "Sister Wives" – asks whether their personal behavior should be exempt from prosecution under Utah's antibigamy law, just as individuals are not prosecuted for having multiple lovers or sex partners.

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Advertising salesman Kody Brown and his family of four wives and 16 children filed suit in federal court Wednesday, asking a US judge to issue an injunction against Utah's law. Bigamy is a third-degree felony there, and police in Lehi, Utah, began investigating the Browns the day after "Sister Wives" made its television debut in September. Though no charges have been filed against them, the Brown family moved to Nevada in January to escape possible criminal prosecution.

Utah's law states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

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The case has the potential to force another reexamination of laws governing individuals' sexual choices and lifestyles. It comes after the US Surpeme Court in 2003 struck down a Texas antisodomy law as an unconstitutional intrusion into private conduct, and at a time when views about marriage are in flux.

Legal analysts say it is important for the public to understand what this latest lawsuit is not about.

“This is not about the Browns' attempt to get Utah to recognize polygamous marriage, but rather to ask the federal courts to tell them they cannot punish intimate conduct,” says Melissa Murray, assistant professor of law at the UC Berkeley School of Law. The Browns will argue that the 2003 Supreme Court ruling in Lawrence v. Texas should extend to the practice of having multiple wives, she says.

Adds Herma Hill Kay, a US Berkeley law professor: “They are not seeking to have their relationship validated as a marriage. They’re just trying to avoid criminal prosecution.”

Jessica Levinson, a professor at Loyola Law School in Los Angeles, says the Browns will argue that criminalizing polygamy violates the 14th Amendment’s guarantees of due process and equal protection, as well as the First Amendment’s clauses guaranteeing the free exercise of religion, free speech, and freedom of association.

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