A legal drama that doubled as reality TV fodder took a turn in the Court of Appeals for the 10th Circuit on Monday, as a ban on polygamy was restored in Utah.
The court ruling reversed a 2013 U.S. district court decision that determined the state violated polygamists’ right to privacy and religious freedom. While polygamy has essentially been decriminalized since that decision, this new ruling brings back a law prohibiting married people from living with additional partners even if they are not legally married to the other “spouses.” The appeals court acted not on the merits but on the grounds that the case was moot when the lower court decided it.
Previously, this provision had been struck down by a lawsuit from the Brown family at the center of “Sister Wives,” a TLC reality series.
While officials said the ban would become an issue only if other laws were broken in connection to polygamy (underage marriage or sexual assault, for instance), many of Utah’s approximately 30,000 polygamists were skeptical, the Associated Press reported.
They say the law forces such groups back into the shadows for fear of prosecution.
The Brown family intends to appeal. The family’s attorney, Jonathan Turley, said in a statement: “The underlying rights of religious freedom and free speech are certainly too great to abandon. … This lawsuit is true to the original dream of those seeking freedom in Utah.”
Turley said he will either ask the 10th Circuit to review the case again, or take it directly to the Supreme Court.
The escalating maneuvers are the latest in a string of bouts between the “Sister Wives” and the state of Utah since the show made the family arrangement public.
When “Sister Wives” first began airing in 2010, The Washington Post’s TV critic called the show about the polygamous Browns of Lehi, Utah, a “public relations gift from above” for plural-marriage advocates. The program — starring Kody Brown, his legal wife Meri and his three “spiritual” wives Janelle, Christine and Robyn — was “refreshingly frank,” and not as salacious as you’d expect, given the subject matter.
The Browns have 17 children, and the show’s sixth season culminated in November.
It was a premise ripe for the TLC treatment, as the channel already hosted “John and Kate Plus 8,” “19 Kids and Counting” and “Little People, Big World.” Unconventional families were ratings gold, so a polygamous one was just the next frontier.
To the surprise of many, the Browns fared well under the scrutiny. They had articulate responses ready for the expected questions. While they identified as fundamentalist Mormons and their polygamy was motivated by religion at its core, they also espoused the joys of living with a large family, alongside supportive “sisters” upon which they could rely.
Or, as Robyn put it in one episode: “There’s a lot more blessings [than in monogamous relationships], and there’s a lot more love.”
Their goal in appearing on the show was to increase public awareness and combat stereotypes surrounding polygamy. It was a mission for which they were willing to risk a lot — even prosecution.
The police in Lehi didn’t wait. The day after the “Sister Wives” series premiere, authorities announced that the family was being investigated for bigamy, a third-degree felony.
While Kody was only legally married to Meri, there was a possibility that he still violated the state’s ban on polygamy because his continuous cohabitation with the other women could be considered common-law marriages.
The Browns had a comeback at the ready. Represented by Turley, a constitutional scholar at George Washington University who has spoken against anti-polygamy laws, they filed suit against Utah’s governor and attorney general, as well as the Utah County attorney, for allegedly violating their constitutional rights.
The civil rights complaint accused Utah of denying them due process and equal protection, as well as freedom of speech and freedom of association. Turley asserted that the case was about privacy, not polygamy, as the investigation represented “a clear example of unacceptable government intrusion.”
Later, the state officials were dropped as defendants, while Utah County Attorney General Jeffrey Buhman remained.
“The family has not been accused of child abuse or other crime, in almost a year of being under criminal investigation,” Turley wrote in a 2011 New York Times column. He noted that the Browns were being judged based on the behavior of other polygamous families that have been linked to misogyny and abuse.
The attorney wrote:
There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others…It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families.
Turley likened the Browns’ situation to those of LGBT people who were denied the right to partake in their partnerships simply because others disdained their lifestyle.
In an interview with the Las Vegas Sun in 2012, Kody said Warren Jeffs’s Fundamentalist Church of Jesus Christ of Latter-Day Saints had created negative stereotypes about plural marriages. (Jeffs is currently serving a life sentence for child rape, and his sect on the Utah-Arizona border has more recently been accused of child labor and fraud, and deemed discriminatory.)
“Warren Jeffs is not our poster child,” Kody told the Las Vegas Sun. “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.”
It seemed as if the tides were turning for polygamous families in 2012, when the criminal investigation against the Browns was closed and the Utah County attorney’s office adopted a policy that protected consenting polygamous partners from prosecution as long as they were not involved in abuse, violence or fraud.
By then, the Browns had already relocated to Las Vegas to avoid the bigamy probe, but they were not ready to give up the lawsuit. In 2013 and 2014, U.S. District Court Judge Clark Waddoups ruled in the Browns’ favor, and in turn struck down the Utah law banning polygamy in terms of cohabitation.
Waddoups believed that the county attorney’s adoption of the new polygamy policy was a “tactical” attempt to evade review from the lawsuit.
His rulings were overturned by the 10th Circuit on Monday, when Judge Scott Matheson Jr., determined that the Browns’ lawsuit was moot because the criminal case against the family had been dropped and the new policy assured that there is no longer “a credible threat of prosecution.”
Polygamists will still be prosecuted only if they have been linked to other crimes.
Kristyn Decker, a former polygamous wife, told the Associated Press that the polygamy ban’s revival would encourage more people to report problems within their families.
“We have all been told over and over again, ‘We need to protect the principle of plural marriage at any cost,'” Decker said.
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