Federal court restores Utah polygamy ban

A federal court upheld Utah’s ban on polygamy Monday, adding to the drama surrounding the TLC reality television show, Sister Wives.

The 10th U.S. Circuit Court of Appeals dismissed a lawsuit filed six years ago by Kody Brown and his four “wives” to challenge the Utah law and re-instated a statute that makes bigamy a third-degree felony.

Salt Lake City is home to the Mormon church, which sanctioned polygamy until 1890 when Utah sought statehood. But some breakaway groups still encourage the practice.

Kody Brown is legally married to Meri Brown, but “spiritually married” to three other women. The Browns and their collective 17 children are members of the Apostolic United Brethren, a small sect of Mormonism that upholds the original doctrine of plural marriage.

The family became the subject of a reality TV show in 2010, although at the time a Utah law prohibited bigamy, including cohabitation with someone when already married to someone else. Local police initiated an investigation to see if the Browns were breaking state code.

Authorities brought no charges, but the Browns filed suit against Gov. Gary Herbert and Attorney General Mark Shurtleff, saying the state had infringed on their rights to privacy and religious freedom.

In 2013, a U.S. District Court ruled the state had violated the Browns’ rights and struck down part of Utah’s polygamy law.

But since the original investigators filed no charges—and would not have filed charges unless they detected criminal activity “such as fraud or abuse”—the Court of Appeals overturned that ruling on Monday.

“[Federal courts] lack power to decide issues—however important or fiercely contested—that are detached from a live dispute between parties,” the court wrote. “[The Browns’] suit was moot before the district court awarded them relief, and the court therefore lacked jurisdiction to decide the Browns’ claims.”

The Brown family plans to appeal the decision, according to their lawyer, Jonathan Turley.

“The Brown family is obviously disappointed in the ruling but remains committed to this fight for the protections of religion, speech, and privacy in Utah,” he wrote in a blog post. “We respectfully disagree with the decision, which in our view departs from prior rulings on standing and mootness.”

Although Utah may not prosecute anyone simply living in a polygamous relationship, it will prosecute for associated forms of domestic abuse, child abuse, or fraud, Parker Douglas, a prosecutor in the Utah attorney general’s office, told Salt Lake City’s KUTV.

“Sounds very nice to say, oh yes, they are all consenting adults, but when you get into the weeds and bushes and poke around, consent is a very complicated issue,” he said. Harmful activity in polygamous relationships can include “domestic abuse, child abuse, fraud of some kind.”

Some analysts believe polygamy bans will eventually fall in the wake of the U.S. Supreme Court’s decision to legalize same-sex marriage nationwide. Even Chief Justice John Roberts predicted the ruling in Obergefell v. Hodges would open the door to legalizing polygamy.

“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,” he wrote in his dissenting opinion. “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. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”