Utah’s ban on polygamy is in the hands of a federal appeals court

Posted at 2:14 PM, Jan 21, 2016
and last updated 2016-01-21 16:14:49-05

DENVER -- A three judge panel at the 10th U.S. Circuit Court of Appeals will decide the fate of Utah's historic ban on polygamy.

But the case of multiple marriages may ultimately end up before the U.S. Supreme Court, attorneys in the case told FOX 13.

The 10th Circuit Court heard arguments Thursday in reality TV polygamist Kody Brown and his wives' lawsuit against the state of Utah. The state is appealing a federal judge's 2013 decision to strike down part of its anti-polygamy laws, which have been in place since the state was founded (Utah abandoned polygamy as a condition of statehood).

The judges peppered the attorneys for the Utah Attorney General's Office and the Brown family with questions focusing on whether the polygamists had standing to bring a case, and whether they really faced prosecution by the Utah County Attorney.

"It is our responsibility to determine whether we have jurisdiction," said Judge Scott Matheson, Jr. "If it's genuine... that he has no intention to charge the Browns, does it matter he may have been motivated at least in part in wanting to end the case?"

Polygamist Kody Brown (center) and his wives (left to right) Janelle, Meri, Robyn and Christine. (Image courtesy TLC)

Polygamist Kody Brown (center) and his wives (left to right) Janelle, Meri, Robyn and Christine. (Image courtesy TLC)

When the Browns first appeared on their cable-TV show "Sister Wives," Lehi police announced they were under investigation for bigamy. The family later moved to Nevada and filed a lawsuit against Utah, arguing it's anti-bigamy laws violate their religious freedom rights, as well as their right to privacy as consenting adults.

One week before another judge struck down Utah's same-sex marriage ban, U.S. District Court Judge Clark Waddoups essentially decriminalized polygamy. It's no longer a crime for consenting adults to live together or "purport" to be married, but it remains illegal to seek multiple marriage licenses.

Utah Federal Solicitor Parker Douglas speak to FOX 13 outside the 10th U.S. Circuit Court of Appeals on Thursday, Jan. 21, 2016.

Parker Douglas, the Federal Solicitor for the Utah Attorney General's Office, told the panel of judges that the Browns never faced prosecution, pointing to a longstanding policy the state had of not charging polygamy as a crime alone, unless it was in concert with other crimes like underage marriage or abuse.

Judge Nancy Moritz pressed the state about that policy and its effectiveness.

"How do we talk about various legitimate state interests you've alleged when the state has chosen not to prosecute? At all," she said. "I don’t see how you get to have your cake and eat it too on that. you have legitimate state interests but you’ve declined to take action on that."

"I would disagree to a certain extent," Douglas said, pointing to past polygamy prosecutions. "The Holm, Green and the Kingston cases all addressed those harms and they were all prosecuted on those harms."

Brown family attorney Jonathan Turley argued that the Browns still feared prosecution.
"You have to look at the chilling effect upon the exercise of the right involved," he said.

"You don't get to the chilling effect unless there's a credible threat of prosecution," Judge Moritz said.

"It's enough that the law targets these people. Utah is where their religious group is centered," Turley replied.

Judge Bobby Baldock questioned if the Brown family's rights were being chilled, noting that they still appear regularly on television and still hold themselves out as polygamists.

Brown family attorney Jonathan Turley speaks to FOX 13 outside the 10th U.S. Circuit Court of Appeals on Thursday, Jan. 21, 2016.

"I think there is an injury when you can no longer engage in free speech in a state where their religious activity is centered. They left the state of Utah and curtailed their free speech," Turley said.

The panel took the case under advisement with a ruling anticipated in a few months. Kody Brown and his wives were not at the court. His fourth wife, Robyn, has recently given birth.

Outside court, lawyers acknowledged this case may eventually wind up before the U.S. Supreme Court, which hasn't heard a polygamy case in more than 100 years. The state of Utah argued that law was binding, but the Browns have pointed to recent court rulings on same-sex marriage as a sign that times are changing.

"It could very well go to the Supreme Court," Turley told FOX 13. "All I can say is that we remain committed to follow this as far as we need to, to not just protect the rights of the Browns, but other families in Utah and most importantly the rights of privacy, due process and religious freedom."

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