Federal Court Rules Sister Wives Case Can Go Forward

Despite widespread predictions to the contrary, a federal court in Salt Lake City has ruled that the Sister Wives challenge of the statute anti-polygamy law can go forward and denied the effort to dismiss the lawsuit. The long and detailed ruling of United States District Court Judge Clark Waddoups agreed with our arguments that we have standing to challenge the state law. The standing question has long been discussed as the most significant barrier for the family in seeking a ruling on the merits. Prior such challenges have been denied at the standing stage.


Judge Waddoups wrote:

“The entirety of actions by the Utah County prosecutors tend to show either an ill-conceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law. Without any evidence to the contrary, the court assumes that these are consummate professionals making announcements of criminal investigations to apprise the public that they are doing their duty and seeking to enforce the law.”

The court did grant dismissal of the state governor and attorney general as parties because the Utah County Attorney Jeffrey Buhman is the relevant government official for the purposes of the challenge. We sued all three officials, but the dismissal of the two other parties will not affect the arguments in the case.

Since I am lead counsel in the case, I must remain somewhat circumspect in what I can say publicly. I have informed the Brown family of the decision. They are both deeply thankful to the Court and appreciative of the opportunity to present their case against this statute. The state has long insisted that this law is constitutional and that it may criminalize consensual private conduct between adults. It will now have the opportunity to make that case to the Court. We remain confident that this law cannot withstand constitutional scrutiny and we are eager to reach merits in the case.

I also want to recognize and thank our esteemed local counsel (and my former student) in this case, Adam Alba.

Here is the decision: Memorandum & Order-Sister Wives

Here is the complaint filed in the case: Brown Complaint

47 thoughts on “Federal Court Rules Sister Wives Case Can Go Forward

  1. Congratulations on getting past the dismissal motion. I’m looking forward to reading the order and following this case on the merits. But I’m afraid this is going to add even greater urgency to Rick Santorum’s call to moral arms.

  2. It is interesting that the First Amendment is in the negative, “Congress shall make no law”, rather than granting an affirmative right – as with the California Constitution’s “Every person may freely speak, write and …”. I assume that this is in part historical, as an expression of the novel idea for that time, as a result of the “disestablishment” movement, that the government will be limited, and one of the limits will be (and a big limit it was) to not be involved in religious matters; or to put it another way, to allow there to be laws that significant segments of the population consider to be immoral, provided one can get the votes in the legislature, the acceptance of some judges, and an executive who will uphold his oath of office.

    I feel that part of the case for a judge, for the motivation to overturn a law, is that the law be seen as an issue of morality. Those are the types of laws that often are left for judges to change – laws like those governing divorce and abortion and homosexuality. Usury and gambling? Yes, but those have economic interests behind them to quietly push for change in the legislature. This leaves prostitution and drugs as the outliers, but drug laws have backers in the prison industry. Prostitution?

  3. Very interesting set of facts. I did not think of the phrase bandied about on the television ads “Christian Mingle” in this context. All aspects of the First Amendment: speech, assemblage (no pun intended) to petition the government, press freedom (the show is journalistic), religion expression, belief, conduct. Not many First Amendment cases can bring all four prongs of the First Amendment into the fray. They need a newsletter.

  4. A good first hurdle to clear. Government has no business interfering in the free choices of individuals, with all the obvious caveats.

  5. On October 28, 2011, the court issued an order to show cause why the United States should not be joined as a required party due to its interest in Utah’s prohibition of polygamous or plural marriages as a condition for granting statehood, as stated in the Utah Enabling Act of 1894, ch. 138 § 3,28 Stat. 107,108. Having reviewed the briefs, the court determines that notice will be given to the United States to determine if it wishes to intervene.” (Memorandum Decision & Order, p. 20).

    The plot thickens. Utah can only be a state if it maintains laws against polygamy?

    If the plaintiff prevails that requirement will also fall and Utah can be a state anyway.

    The flag makers are probably disappointed because there stock could have gone up for awhile had all the flags had to be redone with 49 stars on them.

    The complaint stood (except as against the Gov. and AG) so the county will now file an answer to the complaint.

    Will the U.S. intervene as an interested party?

  6. oops typo:

    “The flag makers are probably disappointed because there their stock could have gone up for awhile had all the flags had to be redone with 49 stars on them.”

  7. I am not a fan of allowing polygamy as I view it as an archaic, chauvanistic and anti-women. I understand the civil liberties aspect and have deep respect for Prof. Turley’s efforts regarding the constituionality of the law. My question is what happens to polygamy laws in Utah or elsewhere if the Professor’s side prevails. Also, what impact would such a decision have on laws prohibitting same-sex marriage in various states?

  8. rcampbell 1, February 4, 2012 at 9:44 am

    I am not a fan of allowing polygamy as I view it as an archaic, chauvanistic and anti-women.
    =======================================
    The testimony of these women does not support that notion, any more than the statistics that upwards of 50% of monogamous marriages fail proves they are archaic.

    Professor Turley is correct on the law if Lawrence v Texas is to be followed.

    In that context, what consenting adults do in the privacy of their bedroom is up to them, not government.

    I wonder if Turley wins and Utah can no longer be a state (see my comment upthread) does that mean Mitt Romney can’t run for president because he is no longer from the USA?

  9. Marriage is always going to be about morality, about mores, about the culture, and some degree of conformance to it. Women in Afghanistan have their husbands chosen for them by the parents, even in Kabul, and still laugh and shake their heads, and how many a woman who made her own choice has not regretted it – or divorced – and with what result?

    Rich countries can afford to let the kids be foolish, but a bad match can be a disaster for a lifetime for the family. As can a bad kid, but what can you do?

    The USA could safely limit marriage to the same species, and be done with it, for the time being.

  10. martingugino 1, February 4, 2012 at 10:41 am

    The USA could safely limit marriage to the same species, and be done with it, for the time being.
    ========================
    Two things:

    First, the states generally determine marriage laws, not the U.S.

    Second, it is debatable whether men and women are the same species, seeing as now one group is from Mars, the other from Venus. ;)

    The more detailed, restrictive, and controlling a state statute becomes the more likely it is to run afoul of Lawrence (a link is upthread).

  11. Dredd,

    What is interesting when Utah was a territory….Women had the right to vote…and of course Polygamous married were allowed…as soon as they became a State….ollla….yep….Only the Black women or minorities had that right…..now if they could exercise it was a different story…

  12. I do have another question concerning what I raised upthread, i.e., the joining of the U.S.A. in the case.

    It could be more significant that what appears at first blush.

    Lawrence v Texas and this Sister Wives case turn on the Fourteenth Amendment since a state statute is involved.

    However, if the feds come in a new facet appears, because Congress can make requirements upon sovereigns before Congress allows them to become a state in the United States (“New States may be admitted by the Congress into this Union”, Art. IV, Sec 3).

    It was Congress that required polygamy to become unlawful in Utah as a requirement for statehood (see my comment upthread).

    How will that go in this Sister Wives case?

  13. ┌∩┐(◣_◢)┌∩┐1, February 3, 2012 at 8:37 pm

    What needs to be said to do
    —————————————–
    I think your avatar is a nasty piece of offense and it is really upsetting me and infringing on my right to go through the day without being assaulted by the insult of inescapable foul language. :p

  14. Anonymously Yours 1, February 4, 2012 at 11:25 am

    Dredd,

    What is interesting when Utah was a territory….Women had the right to vote…and of course Polygamous married were allowed…as soon as they became a State….ollla….yep….Only the Black women or minorities had that right…..now if they could exercise it was a different story…
    ===================================================

    A sordid history indeed, which in addition to what you mentioned, one president sent the Army in to dominate them.

    Reynolds v. U.S., 98 U.S. 145 (1878) upheld bigamy laws in the Territory of Utah before statehood.

    The federal Enabling Act of 1894, which was an act setting forth requirements for Utah to become a state, specifically stated:

    Provided, That polygamous or plural marriages are forever prohibited.

    (Enabling Act of 1894). Utah went on to comply, and has had state laws accordingly since then.

    That is a morph that the Sster Wives case is could experience if the feds decide to join the foray.

    I think the professor should encourage his team to brief these issues just in case the feds start gettin’ jiggy wid it …

  15. Dredd

    Please allow me to try again. I am personally opposed to polygamy. I’m not defending my position, that’s simply a statement of fact. I’m also personally opposed to allowing private citizens owning guns, but, again, that’s my personal belief and I accept that it runs contrary to the law of the land.

    Polygamy being deemed constitutional, if that becomes the case, does not affect me or my marriage anymore than same-sex marriage, which I support. At the same time, as a defender of civil rights and civil liberties, I applaud the Professor’s involvement in the case. I did get your comments on the above and respect them as far as they go, but did not get any information on my questions:

    1) If the Professor’s side prevails, would that make polygamy legal again in Utah? Some here seem to believe that might also affect Utah’s statehood, but if laws prohibitting polygamy are un-Constituional, then this requirement that Utah outlaw the practice before being granted statehood was an un-Constitutional demand and, one would think, be rendered moot.

    2) How would such a decision affect polygamy laws in any and all the other states?

    3) If a state would not be permitted to outlaw polygamy as a reult of this case or inter-racial marriage (already established by law), could a state Constitutionally prohibit same-sex marriages any longer?

  16. rcampbell,

    I’ll take a stab at this as well:

    1) If the Professor’s side prevails, would that make polygamy legal again in Utah? Not necessarily….the state would have to do something affirmative…but, I believe that it would render any further prosecution void….the ones already convicted would have to petition the courts to reverse the convictions as well as to get out of jail or prison……

    Some here seem to believe that might also affect Utah’s statehood, but if laws prohibitting polygamy are un-Constituional, then this requirement that Utah outlaw the practice before being granted statehood was an un-Constitutional demand and, one would think, be rendered moot.

    I do not believe so as well….Utah is a state and is subject to any other law or prohibition as was when it was granted statehood…It was the act of the territory of Utah that made this deal to get in the US….Today they ask themselves why….but…Vince Treancy and I went round and round on this….thing called states right….I still think I am right and he thinks he is right….Who knows we may both be right and the decision was a politically motivate one….

    I think the questions involved in this case are complex and simple at the same time…It is the right of free association, speech and religion all rolled into one case….

    Think for instance if the Catholic Church was in control of the US…which lots of folks were afraid of when Kennedy was running for office….that Abortion would already be off of the table….

    2) How would such a decision affect polygamy laws in any and all the other states?

    I think that the 10th Amendment covers that a state can pretty much do whatever it wants to within its boundary’s and what is not prohibited by the Supreme Law of the land…..

    3) If a state would not be permitted to outlaw polygamy as a reult of this case or inter-racial marriage (already established by law), could a state Constitutionally prohibit same-sex marriages any longer?

    I think that the issue and answer is covered in question two….

    By the way…Is your Dad still sporting the women folk?

  17. rcampbell and AY,

    Hey, I don’t practice polygamy either, but this case is not about me.

    As to the statehood issue, I brought that up because the Judge not only brought it up sua sponte, he ORDERED that the U.S.A. be brought into the foray because of their interest which involved the outlawing of polygamy within the state of Utah as a condition of statehood.

    I am discussing the issues of the case in a non-speculative sense, that is, exactly what is apt to develop when the feds show up, and to the contrary if only 14th Amendment issues arise.

    Lawrence v Texas, which I keep bringing up, and which bloggers here seem to ignore, even though I pointed out in the first post Turley presented on this matter, that Turley cites in in the complaint itself.

    The 14th Amendment argument will focus on the case against Texas criminal law trying to govern what consenting adults do in the privacy of their bedrooms, and therefore Utah doing the same thing, which was held to be violative of the federal constitution.

    Unlike the Texas case, Lawrence, this case has an added dimension which neither Turley nor his clients put in their complaint, but which the Judge brought up and made part of the case.

    The issue is can the Congress require Utah or any state, to make illegal what that state itself can’t make illegal pursuant to Lawrence?

    AY said:

    but if laws prohibitting polygamy are un-Constituional, then this requirement that Utah outlaw the practice before being granted statehood was an un-Constitutional demand and, one would think, be rendered moot.

    That seems sound.

  18. >Partnership” was always a form of economic and political alliance.
    Then the church and the state got involved.

    There, FTFY..

    >..what consenting adults do in the privacy of their bedroom is up to them, not government..

    True, but polygamy is not about the bedroom. It is about multiple parties entered into a contract with the state. Marriage is an economically defined contract between the state & two parties.. partly about procreation, but also for property rights, esp on death of one of the parties as well as legal authority in the case of temporary or permanent incapacity of a party. Think, hospitals, wills. I’m fine with cohabitation as well as same sex marriage. The Government _should_ stay out of the bedroom.. & a low birth rate/hi birth mortality rate is no longer an issue – meaning there is no need to require/encourage’ male/female procreation. The (all) Church(s) should be denied _any_ access to State laws, ie, no law should support any particular Churches ‘wishes’.. In case it’s not apparent, I feel multi-partner ‘marriages’, like other multi-partner contracts, should be allowed.

    >I think your avatar is a nasty piece of offense…

    Funny, I took it to be a digital representation of ‘kilroy was here’.. BTW, remember what Carlin tried to teach us with ‘7 words you can never say on t.v.’? I am so often reminded of the appropriateness of this thought.. “Your opinion of me is none of my business”. Wondering… was your comment any less ‘nasty’ then you perceive the avatar to be?

  19. AY & Dredd

    Thank you both for your thoughtful analyses of the complex issues involved.

    AY

    Thanks also for checking in on my Dad. He seems to be the pursued rather than the pursuer. Lately, I’ve been hearing the name of a neighbor lady of his who was widowed not long after my mother passed away almost two years ago. They’ve gone on a mountain hike (more like a walk), to some birthday parties of mutual friends, etc. He told me the other day that he was a bit disappointed to learn she can’t dance. He said she can dance slow well enough, but he wants to jitterbug.

    More interesting is that he’s working on arranging a one hour singing performance at the retirement community where he lives. I asked him what he was going to do for musical back up. He just looked at me and said—YOU. So, I’ve brought out my guitar some 40+ years after quitting a rock & roll band during college and we’ve begun rehearsals of 20-some big band standards, Mills Bros. tunes and few newer ones. He’s such a hoot to be around.

  20. bobby 1, February 4, 2012 at 2:14 pm

    >..what consenting adults do in the privacy of their bedroom is up to them, not government..

    True, but polygamy is not about the bedroom. It is about multiple parties entered into a contract with the state. Marriage is an economically defined contract between the state & two parties..
    ==================================
    You are confusing polygamy with bigamy.

    Two distinct concepts.

    Contact me when you understand the difference.

    Over and out.

  21. Dredd,

    Isn’t that Bigamy (Big-a-me) when she consents….But then again….That’s Polyandry when she’s in charge….I think I read of a culture in the Amazon that this was a common occurrance…..but then again…when the male failed to preform as desired….it was off with the head they said…….

  22. AY,

    No.

    Bigamy is a function of state marriage licensing and violation of the onesy doctrine rule.

    Polygamy takes place when one sex is “surrounded by and ‘involved’ with multiples” of another sex, regardless of having acquired a state marriage license or not.

    For example, in matriarchal society a woman that has multiple men in a relationship is polygamous.

    The same holds for patriarchal society where a man has multiple females in the same form of relationship.

    When the troids come and say “do you haf your papahs … ” … well … you know the rest.

  23. Hey Dredd,

    Maybe:

    Polyandry (Greek: poly- many, andras- man) refers to a form of marriage in which a woman has two or more husbands at the same time. The form of polyandry in which a woman is married to two or more brothers is known as “fraternal polyandry”, and it is believed by many anthropologists to be the most frequently encountered form.

  24. everyone seems to assume that this would affect only one husband multiple wives marriages. if they win then there can also be one wife multiple husband marriages. or plural marriages, multiple husbands and wives.

    divorce court just went multidimensional.

    and custody cases. what about grandparents rights?

    more important, who keeps the dog?

  25. Various: “I’m not a fan of polygamy…”

    —-

    The Utah law at issue though treats not only the sister-wives situation as polygamy but simple adultery as polygamy when co-habitation is involved. Is that not a little too controlling on the part of the state?

  26. Pete,

    In every respect…..in every respect….It already is….if you think about it….Nobody thinks what is good for the children…..This is War….but you know what…Some children are better off if the parents don’t stay together….two negative people unlike math….do not make a positive…

  27. Dredd;

    As you pointed out, the state aside, Polygamy is about multiple parties in one group – 1 man, >1 woman in patriarchal or 1 woman >1 man in matriarchal, while Bigamy is one party as a member of multiple two member groups in a society which requires exclusivity in two member contracts. There is no confusion on my part. Read what I said carefully..

    “polygamy … is about multiple parties entered into _a_ contract with the state.”

    That would be _1_ contract, together, ie, polygamy – as bigamy would be 1 party entered into >1 contracts with >1 other parties (as well as the state) – again, where such non-exclusivity is disallowed..

    I imagine your knee-jerk reaction was based on a faulty reading of these lines

    – “True, but polygamy is not about the bedroom.”

    – “Marriage is an economically defined contract between the state & two parties.. ”

    Not to worry, there is a possible ambiguity there. Perhaps, were I to rephrase it “Marriage is (also) not about the bedroom & is an economically defined contract between the state & 2 – or possibly more – parties “, you would parse it correctly. Marriage, in all forms, is a contract between the state & either 2, or in the case of polygamy, >2 parties. It concerns itself primarily with joint legal/financial/property ownership & tax arrangements – which is predominately why gays want so much the right to marry – as well as why non-exclusive (in the form of bigamy) contracts are ‘verboten’, to use your later idiom. Religion, ‘wishing to be the dominate part’ of the available social control mechanisms, likes to stick its hands in also – hence the ‘bedroom’ – as religion seems to have a fixation on sexual activity & conduct.

    I realize this is a very non standard view, but it is based on rational observation from ‘outside’ of the system.. & therefore is not ‘blinded to the forest by the presence of the trees’.

    Disclaimer: – You use ‘polygamy’ as a ‘not necessarily licensed’ concept.. however, it is also correct to use it as a ‘licensed’ concept.. ie, ‘married’. Mormon polygamous marriages are (within their view, legal) financial arrangements.. & yes, I have been involved in a financial arrangement (other than marriage) with a Mormon family. It is about property.

    The main concern of all ‘marriage’ – polygamous or monogamous – is financial/legal/social.. as babies pop out, ‘papahs’ or no. Trust me on this.

    Now, be nice.

  28. bobby and AY,

    Dredd;

    polyandry is … Now, be nice.
    ==============================
    I am simply trying to stick to the facts and law of this case here in the U.S.eh?

    Bigamy is not involved in this case because there is only one marriage license in the Sister Wives case. ;)

    Polandry (getting married in Poland) is not involved either in the Sister Wives case. ;)

    The case is about the 14th Amendment restrictions upon Sovereign States who seek to legislate bedroom mores and norms for consenting adults, specifically “polygamy” as defined by Utah law.

    If the U.S. intervenes now that the judge has invited them, it will also be about the congress’s right to formulate criteria for statehood, and specifically polygamy.

    It is nice to stick to the issues upon which Professor Turley’s clients will win or lose, impacting the rest of us directly or indirectly. ;)

  29. Dredd,

    Here ya go…..

    White V Texas…..

    Texas differentiated between those acts of the legislature necessary “to preserve the social community from anarchy and to maintain order” (such as marriages and routine criminal and civil matters) and those ‘designed to promote the Confederacy or that were in violation of the U.S. Constitution.”

  30. Anonymously Yours 1, February 5, 2012 at 9:14 am

    Dredd,

    Here ya go…..

    White V Texas…..

    Texas differentiated between those acts of … anarchy …
    =============================
    Why bring up Ann Coulter’s marriages? ;)

  31. Hey…..Dredd….some may say that this is her God driven right….But in the real respect for her….she screws politicians equally…..Especially…those that are for individual rights as well as DADT…..

    Not bad for a woman that worked for Spence Abraham……The question I have for her…is she still lying about her age?

  32. You’re all worried about statehood…..Utah’s not going to lose its statehood!

    They aren’t asking for legal polygamy….just that it’s decriminalized!

    Meaning….Plural marriages will be like gay marriage is in most states….not legal, but not prosecuted.

    There are lots of dad’s in the country with children by multiple women…..but magically that becomes illegal when they all live in one home?

    In Utah, when a man lives with 2 or more women its a crime…..just cohabitation with multiple women can cause charges to be pressed against the man for bigamy.

    Especially here in Utah, Polygamy is a part of religious beliefs. Its wrong for us to have to feel repressed or hide away because of our faith. But even for others who just chose it as a lifestyle or feel “its just who they are”, should have the same or equal rights of those who live in homosexual marriages.

    Good Luck! This means a lot to very large amount of people!

  33. I am glad to hear of this victory, and I hope for more and bigger ones in the future. I see nothing wrong with their life style, and I feel that the fact that thy had to leave their home has caused them undue hardship and emotional harm. Best wishes to this family.

  34. Although I am not in a polygamist marriage or Mormon.. I have always thought (long before sister wives) that stopping plural marriage was designed by man to avoid the headaches of many women..
    Also as all things, man takes things to the extreme.. hence the issues with incest and underage wives not actually consenting…
    I do think that Sister Wives have shown the more normal side of this denomination it has also exposed the family and especially the children to the spotlight that I am sure they never thought would be this strong… With the income this show has generated.. some one needs to step up and give this family a very large estate or maybe two large houses.. with the economy in vegas lacking two short sales seems like a great option
    Leaving Utah was horrendous for the children.. the adults had choices.. but not sure which way I would have decided on going public..
    My heart and support go to this family and others that are attempting to practice their faith as they see fit.

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