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In 'Sister Wives' Case, 10th Circuit Recriminalizes Polygamy in Utah

By Jonathan R. Tung, Esq. on April 13, 2016 3:00 PM

The Brown family of Lehi, Utah first became known to most Americans through the TLC reality television series Sister Wives. The show (which still airs) documents the lives of members of the Browns, a polygamist family made up of husband-patriarch Kody Brown, his four wives, and their eighteen children.

The Browns claimed that part of their impetus in participating in the show was to help dispel fears and prejudices about polygamist families and to quell controversy. Rather ironically, the show would lead to the case of Brown v. Buhman. This week, the Tenth Circuit ruled that the family had no standing to sue.

Police Investigation

Shortly after Sister Wives debuted on the air, the Lehi, Utah police announced they were investigating Brown's family and his wives for possible charges of bigamy, a third degree felony in the state. The attendant publicity that came with the criminal investigation caused Brown to lose revenue in his advertising business; and a few of the wives also suffered injury because their business partners did not care to ride-out the negative publicity. The Browns filed a federal complaint and challenged Utah's polygamy law which generally criminalizes the practice of so-called "plural families."

In 2012, the criminal case against the Brown family was dropped.

Naturally, Utah pointed to this for mootness resaons. But district judge Clark Waddoups refused to dismiss the case at that point for mootness, intimating that Utah was insincere in its motives in dropping the case and that reprosecution Browns could likely recur. The judge ruled that Utah's polygamy law was unconstitutional and that it violated rights to privacy and religious freedom.

"Bigamy, Fraud, Abuse or Violence"

Utah appealed the district ruling. The Tenth Circuit ruled that the district should not have even heard the case because they had no standing. The theory was that although an investigation was pending on the family, they had never been charged with a crime and would likely not be. In other words, they did not meet the elements of standing: injury or at least imminent injury by the state.

Utah has had a long standing practice of not pressing criminal charges against polygamist families who are "otherwise law abiding." In this particular case, the Tenth Circuit relied on the Utah County Attorney's Office policy of limiting prosecutions to those facts that show child bigamy, fraud, abuse, or violence.

The Browns will appeal the ruling although it is not certain whether they will ask the Tenth Circuit to reconsider, or will simply petition SCOTUS.

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