Closing arguments in the "Sister Wives" polygamy/ polyamory/ cohabitation case

KSL-TV (Salt Lake City) and others

The Browns.

Slipping under my radar two weeks ago were the closing oral arguments in the "Sister Wives" challenge to laws against bigamy and polygamy as defined by cohabitation.

This case matters to polyfolks, because the Kody Brown family — the Mormon polygamists starring on the TLC reality show Sister Wives, currently slated for a fourth season — is legally the same thing as a secular polyamorous household. The Browns claim only one legal marriage among them: between Kody and his first wife Meri. The others, Janelle, Christine and Robyn, are his single girlfriends for purposes of the state — they file as single on their tax returns and such — regardless of how they may think the bookkeepers in Mormon Heaven record them.

What made them criminals under Utah law, and started an investigation against them at the local level (before they moved to Nevada), was that they lived together and called each other husband and wives. Utah defines as "bigamy" merely living with a person of the opposite sex while married to another. Doing so is a third-degree felony good for up to five years in prison. The family is seeking to overturn all such laws nationwide.

Representing them is the prominent constitutional attorney Jonathan Turley of Georgetown University, who has written eloquently about the case in the New York Times. By contrast, the Utah assistant attorney general who defended the law on January 17th seemed poorly prepared and out of his league.

From KSL TV and Radio in Salt Lake City (owned and run by the mainstream Mormon LDS Church, which bans polygamy):

Difference between affair and polygamous marriage questioned in court

By Pat Reavy

SALT LAKE CITY — What is the difference between consenting adults engaged in an affair and consenting adults in a polygamous marriage?

That was the question U.S. District Judge Clark Waddoups asked Utah assistant attorney general Jerrold Jensen on Thursday afternoon during final oral arguments for the case involving a former Utah County polygamist family made famous by a TV show.

Kody Brown and his four wives... are challenging Utah's bigamy statute, claiming it is unconstitutional because it violates their constitutional rights to due process, equal protection, free exercise of religion, free speech and freedom of association.

During Thursday's hearing, Jensen was grilled by Waddoups with questions about what specifically made polygamy a crime. Jensen was on his heels for most of the hearing.

When Waddoups asked whether a married adult who had no children and an adulterous relationship with three other women living in separate homes was different from a polygamist relationship, Jensen said, "Yes." He said it was the "criminality that comes out of polygamous unions" and the crimes against young girls and boys that made it wrong.

"The government has a legitimate interest in protecting people from being injured," Jensen said.

Waddoups pointed out that there were already separate laws that dealt with child abuse....

Later, when asked again to distinguish the difference between polygamists and consenting adults in an affair, Jensen said it was marriage, whether it was one officially recognized by the state or a secret ceremony.

"Just because the state can't prove (marriage) doesn't mean it didn't happen," he said....

The Browns' attorney, Jonathan Turley, responded by arguing that a blanket statement that all plural marriages were the same was wrong.... While the government argued that it could give "thousands" of stories about abuse in polygamist families, Turley said, "I can give you stories in the tens of thousands of abuse in monogamous relationships."...

Waddoups took the arguments under advisement and will announce a decision at a later time.

Read the whole article (Jan. 18, 2013).

More about what went on in the hearing is reported by the Salt Lake Tribune on its Polygamy Blog: Part 1, Part 2.

Background article: ‘Sister Wives’ lawsuit coming back to Utah courtroom (Salt Lake Tribune, Jan. 14, 2103).

Whatever Judge Waddoups' decision, the losing party will likely appeal to the 10th U.S. Circuit Court of Appeals. The next step after that would be the U.S. Supreme Court.

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P.S.: See you at Poly Living this weekend! (Feb. 8-10).

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Update June 4, 2013: The judge sure is taking his time. Meanwhile, polyactivist Vrimj, who has been tracking the case closely, writes today to the Polyamory Leadership Network:

"The (redacted) transcripts in these hearings have been released and I have downloaded it for people who are following along as I am. Transcript as a PDF. It is a pretty short transcript (55 pages, so probably about an hour of argument and about 20 minutes to read), and it highlights just how good at this Mr. Turley is. These are my favorite bits:"

MR. TURLEY: Now, the other thing I wanted to address on that point, Your Honor, is that the state continually comes back and says whatever social harms mean we're particularly concerned because these communities are so insular, which is quite maddening because the reason the communities are so insular is because the state has made the status of the relationships a crime. And so this becomes quite circular. The state says if you have a plural relationship you're a felon. In fact, the defendant in this case went public to say these people are all committing felonies through his subordinates. That might have something to do with the fact that these communities remain insular. If you don't want them to be insular, the first step might be to say we're not going to criminalize you just for your private relationship.

The government's limited argument in this case focuses almost entirely on Reynolds, what we call the "Hail Mary" pass, and it's a pass that is meant to clear Lawrence, which is the most recent discussion of the Supreme Court, and throw the ball back to the Nineteenth Century and to rely on a case that is widely condemned as one of the most vile and prejudicial cases in its language that the court has ever handed down. To suggest that Reynolds is still good law, I have to submit, with all due respect, is perfectly bizarre.

For the court to do what the state is asking it would have to say that we are living under Reynolds, it would have to take us back to the Nineteenth Century.

The Utah law is fundamentally different in its use of cohabitation. If you look at other states, they focus on multiple marriage licenses, and we do not contest that you can prosecute people for multiple marriage licenses and we do not contest that you can prosecute people for a collateral crime. That's just not precedent in this case. And, more importantly, those are not distinctions under the statute.

THE COURT: All right. One final question, on the free speech claims, as I understand the government's argument, it is in this case that the Browns brought the public investigation and accusations upon themselves and, therefore, because they did that, they shouldn't be allowed to argue that this is somehow an imposition of their free speech claims. How do you respond to that argument?

MR. TURLEY: Well, Your Honor, I find that a curious argument because that's basically saying, look, if you didn't speak, you wouldn't have a free speech problem. That's what it basically comes down to. It's your fault. You should have stayed quiet. And there's no question the Browns wanted to show people that a plural family is not one of these compound monstrosities that the state keeps on describing. There's a great number of plural families that are law abiding, they live within society, they don't commit these collateral crimes. But all the state can say is, you know, if you had simply not done the television show, you wouldn't have a problem. That's exactly what Chief Justice Roberts strongly condemned in FEC v. Wisconsin Right to Life when he said you can't analyze a free speech case by considering whether they would have been treated differently, quote, "by changing what they say." That's ultimately what the state wants. The state is saying, look, if you just didn't have a show about you and did a show about making duck calls, or living on the Jersey shore, we wouldn't have any problem with you. Well, that's just not the test. The test is do they have a right to speak and is it because of that speech that they have been prosecuted. And the state has not been particularly subtle. They have said from the beginning we started the investigation because of this television program, and then they went out publicly and said they are committing felonies every night on this television program. It was the state that actually established this close nexus.

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