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In Utah, you can go to jail (again) for being a polygamist

Polygamy advocate Brady Williams looks on with his wives Robyn, second from the left, and Nonie, right, at the Utah state capitol. At far left is Hannah, his daughter with Robyn. (Rick Bowmer/Associated Press)

An update: On Monday, a federal appeals court essentially ruled that the state of Utah can arrests polygamists, the latest in this back-and-forth saga in whether people can go to jail for practicing polygamy. Here's the back story:   

Utah's relationship with polygamy is complicated.

It has been banned since the state was a territory, but the law often had a don't-ask-don't-tell quality about it. If you're an otherwise law-abiding man married to multiple women (and that's almost always the gender ratio), the state would mostly leave you alone. The ban was most often called into effect when officials prosecuted members of a controversial religious sect that engages in polygamy with underage girls.

But reality TV may have changed all that. In 2010, TLC's cameras sought to humanize a family of polygamists in their hit show "Sister Wives." The show's characters -- and its success -- threw the ban's future up in the air. It has has spent the past few years being litigated in court, and as a result, this week Utah's Republican-controlled state legislature is trying to reinstate it.

That's causing some controversy among polygamists. Nearly 150 of them and their supporters came out of the shadows this week and onto the steps of the state capitol to protest the law. Many argued that Utah is trampling on their civil liberties and trying to demonize their religious and life choices.

The debate calls into question the very nature of who the nation's polygamists are. Are they contributing members of society who happen to feel fulfilled by multiple marriages? Or are they brainwashed and/or abused members of a controversial religious sect?

The answer is likely to determine how Utah's government -- and perhaps the nation at large -- will treat polygamists in a post-"Sister Wives" era.

Here's a rundown on Utah's latest fight over polygamy.

Like a lot of good stories, it started with a lawsuit

When the Brown family agreed to let TLC cameras into their home in 2010 to document their lives for "Sister Wives," it grabbed the nation's attention -- and the attention of Utah authorities.

Utah officials started looking into the family that was so publicly flouting the law. (The Brown family has since moved to Nevada.)

In 2011, the family sued the state, claiming the investigation violated their right to privacy and religious freedom. They hold up the show as Exhibit A, which details the otherwise ordinary-looking lives of Kody Brown and his four wives and their 18 children. They go on vacation. They argue. The parents have glasses of wine together at the end of a long day.

The family says the show demonstrates that polygamists can have just as happy and healthy a marriage as a couple, and that government shouldn't be getting involved in what they do behind closed doors. To make their case, they drew on a 2003 Supreme Court decision that struck down a Texas law banning sodomy.

In 2013, a federal court agreed with the Browns -- for the most part. A federal judge declared a key part of Utah's ban on polygamy -- the part forbidding cohabitation -- to be unconstitutional. The judge argued that there are many people in Utah and the rest of the country who cohabitate and don't practice polygamy, so Utah authorities were discriminating when they used the ban to go after members of a certain religion. The court's ruling essentially took away the ban's teeth, including its punishment of up to five years in prison for practicing polygamy.

The state appealed, arguing that the ban is necessary to catch people marrying teenagers and exploiting government benefits. (More on that later.)

The case went before the second-highest federal court. The 10th Circuit Court of Appeals heard arguments in January and made their decision Monday (more on that in a minute).

Utah lawmakers wanted in on the debate

Specifically, a majority of House members want to reinstate and strengthen the polygamy ban.

The bill, sponsored by state Rep. Michael Noel (R), would reinsert the regulation banning cohabitation that the courts took out -- in effect making it a punishable crime again. Noel said that when he introduced the measure, it proposed making polygamy a misdemeanor. But somewhere along the way, his colleagues tacked on an amendment to make it a third-degree felony, meaning it is punishable by up to five years in prison.

The beefed-up proposal passed the House 59-16. It died in the Senate, and it was unclear whether Gov. Gary Herbert (R) would sign it.

The case against polygamy

The Associated Press, citing court documents, says Utah has about 30,000 polygamists. Hundreds of them and their supporters showed up at the statehouse this week to protest the ban and, in the likeness of "Sister Wives," tried to humanize their way of life to lawmakers and the world.

The debate seems to be linked to who these polygamists are. Are they members of the controversial Fundamentalist Latter-day Saints sect, which split from the Church of Jesus Christ of Latter-day Saints in the 1920s after the Mormon Church banned polygamy? Or are they otherwise law-abiding Americans who choose to have multiple spouses?

The answer is likely to shape government's response. The FLDS sect has been the source of constant controversy and litigation at the state and federal levels and a civil rights headache for government officials. Its leaders from Arizona to Texas to Utah have been accused of fostering or participating in sexual acts with girls as young as 12, marginalizing boys in the community and exploiting government benefits.

State leaders have argued that Utah's polygamy ban has been helpful in prosecuting such offenders.

Warren Jeffs, the leader of an FLDS sect in Utah, is serving a life sentence, plus 20 years, for two counts of sexual assault of a child. In February, 11 other leaders of the sect were arrested on accusations of food stamp fraud and money laundering -- one of the biggest crackdowns on the sect in years.

And on Monday, a federal jury ruled that two entire towns, the twin border towns of Colorado City, Ariz., and Hildale, Utah, that had been basically functioning as one FLDS sect violated non-FLDS members' rights. The jury found that officials in the largely polygamous towns denied non-church members basic rights, such as water connections and police protection.

A supporter of Utah's ban told ABC4 that polygamy is a false choice for many women: "It's not about choice, even though we thought it was," said Kristyn Decker, who was in a polygamous marriage for 20 years. "From the time you’re born, from the time you’re indoctrinated, you believe that’s what you’re supposed to do -- or have to do."

The case for polygamy

Back in Salt Lake City, the bill's detractors argue that Utah's ban unfairly loops them in with the FLDS sect.

Protesters such as Joe Darger, who has three wives and 24 children, told KUTV that tens of thousands of polygamous families in Utah aren't members of FLDS.

"The idea that just because I am a polygamist man, I am [also] a perpetrator, is a myth," he said

Others make the argument that resonates with immigration activists -- that enforcing a blanket ban will only marginalize people who are going to do it anyway.

"People are scared to receive services," Enoch Foster, who has two wives and whose father was arrested in the 1970s for practicing polygamy, told ABC4. "They're scared if they came out and say I'm getting beat up, then my whole family is going to get taken away and I'm going to lose my kids."

The future of polygamy

The debate over Utah's law appeared to be on a path to the Supreme Court until Monday. That's when the federal appeals decided the ban, in practice, is constitutional. (Polygamy is banned in all 50 states.)  The court essentially threw out the "Sister Wives" lawsuit, saying the Brown family  wasn't really in danger of being prosecuted and going to jail for practicing polygamy. After all, the Utah County Attorney testified that he wouldn't go after polygamists for polygamy alone; he said he'd only arrest polygamists in concert with another crime.

The ruling is a setback for the "Sister Wives" clan and other polygamists and their supporters, who don't want the ban on the books at all.  The Browns' lawyer said they were considering filing directly to the Supreme Court.

But simply watching "Sister Wives" has some legal scholars wondering whether polygamy bans are needlessly stepping into Americans' personal lives, much like bans on sodomy or even same-sex marriage.

"If the adults are all truly consenting, what business is it of anyone what happens in their bedroom -- or bedrooms?"  UCLA law professor Adam Winkler wrote in the Huffington Post in 2013.

It seems like this latest chapter has been settled in a sort of murky compromise for now: The government can ban polygamy, but those bans are more likely to stay in place if the government doesn't go after polygamists just for being polygamists.