SALT LAKE CITY -- A bill reportedly being drafted in the Utah State Legislature could essentially "re-criminalize" polygamy in response to a lawsuit against the state.
It could also impact the pending case involving reality TV polygamist Kody Brown and his wives, which is awaiting a ruling by the 10th U.S. Circuit Court of Appeals.
The Utah Attorney General's Office announced the surprise legislation to the panel of judges just as Thursday's hearing in Denver was getting under way. Utah Federal Solicitor Parker Douglas told the judges that the bill would affect the language of a lower court judge's ruling that essentially decriminalized plural marriage in the state.
"So this has been filed for legislative consideration?" Judge Scott Matheson, Jr., asked him.
"Yes," Douglas replied. "I merely wanted to tell the court it's an open bill file."
The state is appealing the lawsuit brought by Brown and his wives, Meri, Janelle, Christine and Robyn. They argue the state's ban on polygamy violates their right to privacy as consenting adults and religious freedom under the First Amendment.
In 2013, U.S. District Court Judge Clark Waddoups struck down a portion of Utah's anti-polygamy laws that have been in place since the founding of the state (Utah abandoned polygamy as a condition of statehood). The judge ruled it no longer a crime to "cohabitate" with multiple people and people could "purport" to be married. However, he preserved a portion of the statute that made it a crime to seek multiple marriage licenses.
The bill would change that.
"It wouldn't make cohabitation a crime unless they were 'purporting' to be married," Douglas told FOX 13 outside of court. "I think it clarifies who might be covered by the law. The reason for it is to give the public precise knowledge of what is criminal and what is not."
Who exactly is running the bill is unknown. Outside the 10th Circuit Court, Douglas said he did not know but was obligated to report the news to the panel of judges. Staffers in the House and Senate told FOX 13 on Friday they were unaware of any pending polygamy legislation, and no bill dealing with that topic had been made public, either in title or in draft form.
Some polygamous families said the legislation -- if it comes to pass -- is "alarming."
"I don’t know why the state has to continue this fight," said Joe Darger, a polygamist with three wives who authored a book about his life called "Love Times Three."
Darger told FOX 13 he feared the legislation could undermine efforts to open up closed societies and end abuses within them.
"We’re making such good progress and really opening up a culture and communities that have been kept in secret," he said. "Purporting to be married is about freedom."
The 10th Circuit Court is expected to rule in a few months on the Brown lawsuit in a case that could go to the U.S. Supreme Court. Brown family attorney Jonathan Turley told FOX 13 he was surprised to hear of pending legislation.
"We were surprised by the statement that there was legislation introduced in Utah," he said. "We will have to look at the statute to see what passes to decide how it impacts this case going forward."