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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