'Sister Wives' family sues to prevent prosecution for polygamy

“Kody Brown is saying it all boils down to holding that if you can’t criminalize private, same-sex conduct, then why can you criminalize polygamists?” says Ms. Levinson.

The issue surfaced in September, when American TV audiences were presented with the unscripted, reality TV narrative of the Browns' unconventional lifestyle. Seven episodes of “Sister Wives” ran from Sept. 26 to Oct. 17, and its ratings were strong enough for the show to be renewed for a second season, which began in March. The second season chronicled the Browns' reaction to being investigated.

"Right now we live in a bizarre situation where everyone agrees that you can have multiple lovers, you can have children by those lovers, you can even have adulterous lovers, and you're protected as a citizen of the United States," the Browns' lawyer, George Washington University law professor Jonathan Turley told ABC News. "But the minute you tell them privately that you view them as your spiritual spouses, the state comes in and prosecutes you."

The state of Utah is accustomed to defending its law against bigamy – and winning. Two cases in the past five years have challenged the law – one in state court and the other in federal court – and each time the state's right to regulate marriage and to regulate bigamy was upheld, says Paul Murphy, spokesman for the Utah Attorney General's Office.

“There doesn’t seem to be anything new here,” he says. “This is just another challenge, and we expect the courts to uphold the over 100 years of tradition with family law.”

The case may yet be a test of whether rulings are affected by changing social mores, say constitutional scholars. They also are interested to see how the state of Utah defends its compelling interest in prohibiting bigamy and polygamy.

“Long ago, the Supreme Court upheld the law against polygamy. It will be interesting whether courts see subsequent developments as calling the earlier decision into question,” says Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “Social attitudes have changed enormously about homosexuality and marriage equality for gays and lesbians. But they have not changed about polygamy. Will that matter? From a legal perspective, the crucial question will be what the state identifies as its interest and whether the courts accept this as adequate to justify the law.”

One key element that may receive clarification is whether a behavior is acceptable simply because it is not hurting anyone else, say analysts. Other high-profile cases involving polygamy – such as the case of Warren Jeffs, leader of a polygamous sect who is awaiting trial in Texas – have included charges of rape and issues of domestic violence and child abuse.

“This lawsuit is very specific in terms of saying that as long as you don’t do harm to anyone such as abusing a child or your wife, that polygamy should be held constitutional,” says Loyola's Ms. Levinson.

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