Polyamory in the News
. . . by Alan M.

July 23, 2011

"Sister Wives" stars challenge anti-polygamy law

You may remember Kody, Meri, Janelle, and Christine Brown and Robyn Sullivan — they're the showpiece family of Mormon polygamists on TLC's reality TV show "Sister Wives". Since the family went public with the show in September 2010, they have faced a threat of prosecution under Utah's anti-polygamy law and as a result, one wife lost her job. They moved to Nevada to avoid being charged.

Now the five have brought a challenge in federal court to the Utah anti-polygamy laws, and by extension to all similar laws in the US.

The Browns may have a better chance in court than their generations of predecessors — and not just because a top-flight constitutional expert, Jonathan Turley, has signed on as their lead attorney.

Past attempts to legalize polygamy were based on arguments of religious freedom. Originalist Mormons, such as the Browns, hold to the Mormon Church's original doctrine that a man should take three wives. Courts have shot down that approach; the Constitution, as usually interpreted, allows wide leeway for laws to prohibit supposedly harmful religious practices (as opposed to religious beliefs or worship).

Now, however, the Brown family argues that it has a right to be left alone under the Supreme Court's 2003 Lawrence v. Texas decision, which struck down laws against gay sex. Lawrence's language powerfully upheld the right to choose one's intimate relationships[1]. Conservatives, starting with the three dissenting justices, have warned ever since that after Lawrence, laws against polygamy and other supposedly objectionable relationships cannot stand.

Particularly relevant for polyamorists, Kody Brown is legally married only to his first wife, Meri. The others are just girlfriends in the eyes of the law, and they file their taxes and everything as single people, though they consider themselves divinely married in the logbooks of Heaven. However, Utah law defines the crime of "bigamy" broadly, to include merely living together while married to someone else.

From the Associated Press:

"Sister Wives" clan challenging anti-bigamy law

SALT LAKE CITY — A polygamous family made famous by the reality TV show "Sister Wives" plans to challenge the Utah bigamy law that makes their lifestyle illegal, a Washington-based attorney said Tuesday.

Attorney Jonathan Turley... represents Kody Brown and his four wives, Meri, Janelle, Christine and Robyn. Brown is only legally married to Meri Brown.

Originally from Lehi, the Browns, who have 16 children, has been featured on the TLC reality show since last fall. They moved out of Utah to Nevada in January after police and Utah County prosecutors launched a bigamy investigation. No charges were ever filed.

...In a statement posted on his blog, Turley said the lawsuit will challenge Utah's right to prosecute people for their private relationships.

"We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs," the statement reads.

...Turley said he believes the case represents the "strongest factual and legal basis for a challenge to the criminalization of polygamy" ever filed in the federal courts.

Utah has not prosecuted a polygamist for bigamy since 2001. Tom Green, who was married to five women and drew the attention of Utah authorities after promoting his lifestyle on national TV talk shows, was convicted on bigamy, criminal nonsupport and child rape charges. He spent six years in prison and was released in 2007.

Polygamy in Utah and across the Intermountain West is a legacy of the early teachings of Joseph Smith, founder of The Church of Jesus Christ of Latter-day Saints. Mormons abandoned the practice of plural marriage in the 1890s as a condition of Utah's statehood.

An estimated 38,000 self-described Mormon fundamentalists continue the practice, believing it brings exaltation in heaven. Most keep their way of life a secret out of fear of prosecution, although over the past 10 years an advocacy group made up mostly polygamous women has worked to educate the public and state agencies in Utah and Arizona about the culture.

The Browns have long said they believed making their life public on cable television was a risk worth taking if it helped advance the broader understanding of plural families. The lawsuit appears to be an extension of that belief.

"There are tens of thousands of plural families in Utah and other states. We are one of those families. We only wish to live our private lives according our beliefs," Kody Brown said in a statement released through Turley. "While we understand that this may be a long struggle in court, it has already been a long struggle for my family and other plural families to end the stereotypes and unfair treatment given consensual polygamy."

Read the whole article (July 12, 2011).

From a New York Times article (July 11, 2011):

The connection with Lawrence v. Texas, a case that broadened legal rights for gay people, is sensitive for those who have sought the right of same-sex marriage. Opponents of such unions often refer to polygamy as one of the all-but-inevitable outcomes of allowing same-sex marriage. In his dissenting opinion in the Lawrence case, Justice Antonin Scalia cited a threat to state laws “based on moral choices” against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

A discussion has been bubbling in the Polyamory Leadership Network (PLN) for the last couple weeks about whether polyamorists should seek to involve themselves in this case, or give patriarchal, male-ruled polygyny a wide berth. Said one commenter, "This is being filed directly in federal court, and the legality of the statute is being put squarely at issue. There are not a lot of other issues [such as underage marriages or alleged coercion] clouding up the case. This is just about a best-case scenario for challenging a law's constitutionality."

From a press release issued by the Loving More nonprofit (July 27, 2011):

Robyn Trask says, “Our big concern in the Brown case is that if he can be prosecuted for polygamy, so can many polyamorists. I know of several polyamory families where a woman lives with two men and considers both men her husbands though she is only married to one legally, and families where a man considers himself married to two women. This is no different from Mr. Brown. Where do the intrusions into personal choice about love, emotions and sex stop?”

You can read the Browns' full complaint as filed (39-page pdf document). Some highlights in it relevant to polyamory:

Paragraph #

49-51 Discussion of polyamory.

59-60 The recent Canadian test case (currently awaiting judge's decision).

92-94 Summary of how polygamy was criminalized in Utah.

Recognition of the role of community in polygamy or polyamory.

110 Another recognition of polyamory, in the context of family.

123-148 The Brown family's personal history with the Utah governor's press secretary and the sheriff, which appears to be one of mutual recognition and respect.

149-156 The family's involvement with Utah's Safety Net program (for dealing with actual abuse in polygamist communities).

163-171 How the investigation of them was spurred by the "Sister Wives" show.

Notes PLN member Anita Wagner, "Jonathan Turley is widely interviewed and quoted on constitutional law, and I believe is or was a syndicated columnist who writes on constitutional law issues. I can't think of a more perfect, powerful attorney to take this on; his media visibility is huge."

Indeed, day before yesterday Turley published an op-ed article about the case in the New York Times:

One Big, Happy Polygamous Family

Since the Supreme Court’s 2003 decision in Lawrence v. Texas, Americans have enjoyed unprecedented freedom in their lifestyles and private relationships. The decision held that states could no longer use the criminal code for social engineering, dictating the most intimate decisions of citizens in their choice of partners and relations. But even as states have abandoned laws criminalizing homosexual and adulterous relations, they have continued to prosecute one group of consenting adults: polygamists.

Last week in Utah, one such family filed a challenge to the state’s criminal law. That family — a man, Kody Brown, and his four wives and 16 children — is the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” They are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone.

Utah and eight other states make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute plural families. And they’re not a small population: the number of fundamentalist Mormon or Christian polygamists alone has been estimated to be as high as 50,000. When Muslim as well as nonreligious plural families are considered, the real number is likely many times greater.

...While widely disliked, if not despised, polygamy is just one form among the many types of plural relationships in our society. It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and “cohabits” with those partners, it is considered a crime.

One might expect the civil liberties community to defend those cases as a natural extension of its campaign for greater privacy and personal choice. But too many have either been silent or outright hostile to demands from polygamists for the same protections provided to other groups under Lawrence.

The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others....

Ultimately, the question is whether polygamy is allowed under the privacy principles articulated in Lawrence....

Civil libertarians should not be scared away by the arguments of people like Justice Scalia. We should fight for privacy as an inclusive concept, benefiting everyone in the same way....

Read the whole article (appeared in the July 21, 2011, print issue).

And here's an article Turley published in USA Today in 2004 about a previous case:

Polygamy laws expose our own hypocrisy

By Jonathan Turley

Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.

If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

...Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners "as a spouse," we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison....

Read the whole article (Oct. 3, 2004).

A correspondent for The Economist, writing on the magazine's blogsite:

...Indeed, [current law] law positively encourages de facto polygamous families to organise into multiple households lacking the cohesion and economies of our culture's idealised single-household family.

Imagine the family of a twice-divorced, thrice-married woman with one child from each union. Let's say she's a stay-at-home mom who has custody of all the kids, and gets child-support payments from her first two husbands. So, children with three different fathers live together in a single household, supported by a portion of three different mens' income. How is this not de facto polyandry? How significant is it, really, that her first two husbands don't happen to live with their kids and her third husband? Suppose they move in. What then? Is it okay as long as they pay rent? As long as they no longer love the mother of their children, or vice versa? I say it's okay as long as everyone involved says it's okay.

...I would add that conventional monogamous marriage was in fact an abusive, exploitative, patriarchal arrangement [as polygamous marriages are alleged to be] until very recently.

Read the whole article (July 22, 2011).

This will certainly be a case to watch in the coming months and years.

Updates: On September 2nd the State of Utah filed a motion to dismiss the case. The supporting memo and affidavits.

News article Sept. 18, 2011: New Court Dockets show Utah unlikely to press charges on 'Sister Wives' family. The publicity that the Browns' challenge is bringing to Utah is probably not something the state wants, and reducing the apparent threat of prosecution may reduce the family's claim to have standing to bring the case. But county (as opposed to state) authorities are still said to be looking into bringing bigamy charges.

Oct. 18, 2011: Responses to motion to dismiss, with summary by vrimj of the PLN.

The Sister Wives show continues to be successful; its third season began Sept. 25th. Looks like the move from rural Utah to Las Vegas wasn't good for the family, however. The show is on Sunday nights on TLC, 9 p.m. eastern time, 8 central.

A sign that Kody can think beyond Mormon doctrine: “If there was going to be a brother husband, I would ask [friend] Brad [Pitt] to join the family,” Brown tells the Huffington Post (Sept. 23, 2011).

Lucius Scribbens, on his blogsite Bigger Love, posts a rundown of Utah's various anti-sex and -relationship laws: Why Utah's Anti-Polygamy Laws Need to be Abolished (Sept. 21, 2011).


1. The majestic language of Justice Anthony Kennedy's majority opinion ought to be more widely known:

...The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

And he quotes himself from an earlier landmark decision which he co-authored, Planned Parenthood of Southeastern Pa. v. Casey (1992):

In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."


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Anonymous Anonymous said...

Utah's code reads:
76-7-101. Bigamy -- Defense.
(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Technically that means you can't live with anyone else (even if you're not having sex with them) if you're still married. We could probably lock up a large percentage of our Utah cops and even judges for that "crime." Jim Catano

July 24, 2011 12:09 PM  
Anonymous Anonymous said...

Wow, he's friends with Brad Pitt?

October 13, 2011 12:52 AM  

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