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'Sister Wives' Utah Bigamy Lawsuit Will Proceed

By Stephanie Rabiner, Esq. on February 07, 2012 5:03 AM

Kody Brown and his four wives -- Meri, Janelle, Christine and Robyn -- have overcome the first hurdle in a lawsuit challenging the constitutionality of Utah's bigamy law. A federal judge has ruled that the Sister Wives lawsuit may proceed against Utah County Attorney Jeffrey Buhman.

Buhman had threatened to prosecute the polygamist family even though Brown is only legally married to Meri -- the other relationships are "spiritual unions."  However, Utah's bigamy law criminalizes being married to one person while cohabitating with another.

The Sister Wives lawsuit argues this clause violates the Browns' due process rights, equal protection, the free exercise of religion, free speech and freedom of association. Will they win on any of these theories?

As it stands, bigamy and polygamy are illegal in all 50 states. There have been some challenges, with the most notable having occurred in 1878. In Reynolds v. United States, the Supreme Court ruled that there is no religious exception to bigamy laws. The government can prohibit plural marriage, as it is a regulation of action, not religious belief.

Though this case is over 130 years old, it has yet to be overruled. The Supreme Court has also cited it in more recent jurisprudence, indicating that it is still good law.

Still, the current Court may be amenable to one of the other, non-religious arguments. The right to privacy has changed significantly in the last century, especially when it involves the bedroom activities of consenting adults. The Sister Wives lawsuit may thus be successful because cohabitation is different than bigamy -- it is merely a private agreement between adults.

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