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10th Cir. Hears Oral Arguments in Sister Wives Polygamy Suit

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By Casey C. Sullivan, Esq. on January 21, 2016 3:01 PM

Meri, Janelle, Christine, and Robyn Brown, along with the shared husband Kody, were just simple people going about their own business (and starring in the reality show 'Sister Wives') when they came under investigation for polygamy. The Browns weren't charged with a crime, but they challenged Utah's longstanding polygamy ban nonetheless -- and they won.

Now, the Sister Wives are taking their pro-polygamy campaign to the Tenth Circuit, which heard oral arguments over the ban today.

Utah, Polygamy, and Reality T.V.

Utah has a long and storied history with polygamy. Indeed, banning polygamy was one of the conditions of Utah's entry into the union and lead to a major split in the Mormon Church, which had earlier treated polygamy as a religious duty.

That split lead to the Apostolic United Brethren, a fundamentalist Mormon sect to which the Browns belong. (Fun fact, those who broke away when Utah banned polygamy included Mitt Romney's great-grandfather, who fled to Mexico to avoid the ban.)

Though Brown women refer to themselves as "sister wives," the clan has long maintained that they aren't actually violating any laws against polygamy or bigamy, since Kody Brown has not legally married three of the women.

Not Just Marriage, but 'Purported' Marriages

Utah's anti-bigamy law prohibits both having more than one husband or wife or purporting to marry another person or cohabit with another person. That prevents multiple legal marriages but also prohibits relationships like the Browns', who hold themselves out as married but have no actual marriage licenses.

In 2013, Judge Clark Waddoups, of Utah's district court, invalidated the second half of the law, finding that the cohabitation prong violated the Free Exercise Clause and due process.

Oral Arguments

The Tenth Circuit heard Utah's appeal to that ruling today and it didn't look like they were itching to overturn it. The three judge panel "asked some of the most pointed questions to Utah's lawyer," the Associated Press reports. That included why Utah even needed the cohabitation law when it was so rarely used.

A law that the state never enforces seems to undermine state claims that it has a substantial interest in preventing "cohabiting" bigamy, Judge Nacy Moritz said. But, Utah responded, prosecution isn't the only purpose of the law. It can be helpful in gathering evidence of other crimes, such as sexual assault and statutory rape, which often coincide with polygamy.

George Washington University law professor and constitutional scholar Jonathan Turley argued on behalf of the Browns. The judges noted that Utah rarely prosecutes otherwise law-abiding polygamists and asked Turley what harm the Browns had suffered because of the law. The chilling effect alone is sufficient harm, Turley said: "That's the type of harm that can be hard to imagine if it's never happened to you."

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