'Sister Wives' case: Will polygamy become legal in Utah?

Kody Brown and his four wives, who appear on the 'Sister Wives' reality TV show, won a 2013 lawsuit with the state of Utah over its ban on multiple marriages, based on religious freedom grounds. Why state prosecutors are challenging their win.  

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A family made famous by the reality show “Sister Wives” is calling on a Utah appeals court to uphold a ruling that essentially decriminalized polygamy, saying the state’s historic ban on the practice raises constitutional issues about freedom of religion, association, and privacy rights of consenting adults.

Kody Brown and his four wives — Meri, Janelle, Christine and Robyn — who began appearing on the TLC reality show in 2010, filed suit against the state of Utah challenging the state’s ban.

In 2013, they won a legal victory after a US District Court judge found that part of the ban prohibiting cohabitation violated the Brown family’s rights to religious freedom. While it’s no longer illegal to “purport” to be married, bigamy — or holding multiple marriage licenses — is still illegal.

In response, the Utah Attorney General challenged the ruling, with state attorneys saying they don’t intend to charge the Brown family if the law stands, but the ban should stay on the books to prevent crimes such as underage marriage.

The case is set to go before the 10th Circuit Court of Appeals in Denver on Thursday, with the Brown family arguing that their reality show demonstrates that polygamous relationships can be just as healthy as monogamous ones.

But prosecutors argue larger societal harms can result from plural marriage, including crimes such as sexual assault, statutory rape and exploitation of government benefits. They point to the case of Warren Jeffs, the former Fundamentalist Church of Jesus Christ of Latter Day Saints leader who is now serving a life sentence in Texas for sexually assaulting girls he considered his “wives.”

While the state has a longstanding policy of not prosecuting otherwise law-abiding adults in polyamorous relationships, prosecutors say keeping the practice banned allows them to better gather evidence against people who do abuse the state’s laws.

The Brown family rejects that contention, saying other laws protect against those crimes, and that a ban on polygamy could lead to further distrust of authority.

While the mainstream Church of Jesus Christ of Latter-day Saints, which is based in Salt Lake City, abandoned the practice in 1890 and now strictly prohibits multiple marriages, there are about 30,000 polygamists in Utah, according to court documents.

Lawyers for the Brown family point to support from the Supreme Court, with Chief Justice John Roberts appearing to point to some legal protections for polygamy in a dissent from the court’s ruling legalizing same-sex marriage in July 2015.

“Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Justice Roberts wrote.

“Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world,” he added.

It seems many Americans disagree, with a Gallup poll finding that only 16 percent of Americans find polygamy morally acceptable, the The Christian Science Monitor reported in July.

“The state of Utah made a promise, a solemn oath that there won't be polygamy," University of Utah law professor Amos Guiora told FOX 13. “In many ways, what this case suggests and raises is, once and for all, we're going to have to determine – polygamy yes? Or polygamy no?”

The case could go all the way to the Supreme Court, which hasn’t heard a polygamy case in more than 100 years, notes Prof. Guiora, who has written extensively on polygamy and the law and supports the ban remaining in place, citing the potential of abuse.

He noted that Canada’s Supreme Court recently considered a constitutional question about the right to polygamy and upheld its existing ban.

“The Supreme Court, I think, is going to have to recognize just like with same-sex marriage, there's going to have to be a need for a decision,” he says. “Which will be the decision.”