As some of you know, today was the day on which both sides in the Sister Wives case were to file cross motions for summary judgment to establish whether the state’s criminalization of cohabitation is constitutional. This evening we have filed a roughly 80 page motion and brief challenging the anti-bigamy law on seven distinct constitutional and statutory grounds. Rather than file a summary judgment motion arguing the merits of constitutionality of the state law, however, the prosecutors have filed a declaration with the Court that they promise not to prosecute the Brown family for polygamy and have decided to end the investigation that has been ongoing for years. They further state that, in light of this lawsuit, they have adopted a new policy not to prosecute any plural family absent the commission of a collateral crime like child abuse. They are asking United States District Court Judge Clark Waddoups to dismiss the case in light of their concession and promise not to prosecute.
As lead counsel for the Brown family, I must continue to be circumspect in any public statement on the case. However, on behalf of myself and my local counsel Adam Alba and our team members (Geoff Turley, Matt Radler, and Gina D’Andrea) I wanted to express our great relief for the Brown family that this long-standing threat has been finally lifted. The family has spent almost two year being publicly denounced as felons by prosecutors and had to move to Nevada to protect their family and children. While I am pleased that the prosecutors are now promising to leave this family alone, the decision will not end our challenge to the state law. We do not believe that this decision and new policy renders this case moot under controlling precedent. Today, we have filed a comprehensive brief detailing the myriad of constitutional and statutory violations inherent in the law. We look forward to arguing that motion before Judge Waddoups in Salt Lake City.
Jonathan Turley, Lead Counsel for the Brown Family
Washington, D.C.
May 31, 2012
_______________________________________________________________
Here is a statement from the Brown family released through my office this evening:
We are obviously delighted by the news that the prosecutors have formally declared that the investigation of our family is at an end. We have spent years under investigation and ultimately had to move from the state of Utah to protect our family and particularly our children. The decision to create the new policy in light of our lawsuit is wonderful news for not just ourselves but the many thousands of members of plural families in Utah. We are deeply grateful to Professor Jonathan Turley and his legal team who have stood beside us over these difficult years. We are committed to seeking a final review of this law before the federal court and we are excited about the filing of the Motion for Summary Judgment that was filed today on our behalf by Professor Turley and local counsel Adam Alba. While our fight will continue for equal rights for plural families in this case, the termination of this investigation is the answer to our prayers to live without fear of prosecution because of our faith.
The Kody Brown Family
I just want to say that I am now watching your families story on Netflix. I was curious, that’s why I started to watch it. As the episodes go on, I feel like I get to know your family. You all seem to be so delightful, your children are happy and are well taken care of. I am not done with all the seasons, but I had to stop to google and see what happened with the investigation. I was happy that they didn’t pursue your family any more than they did. Sorry that you had to go through the drama and the move
+zI hope now that everyone is in a good place and that your family is doing well. Tp each their own. There are way to many things that people could be concerned with and yoet people have nothing better to do than to lok down their nose at someone eles. I wish you the best, now I will get back to your show..be blessed and best wishes to your family/families. Keep your head up and take care.
In sc , we have common law marriage . If you profess to the public that you are in fact married and live together then u are married by law . So therefore I would not try this in sc . Because also upon verbally professing to be married to one another . If both parties decide to not be married then you have to get legally divorced in court .
Dan – you are partially correct. However, Jesus said that God’s original intent for marriage was for one man and one woman for life. Sin enters the picture and things change. I’d much rather see polygamy legalized before homosexual marriage. God NEVER allowed for the homosexual lifestyle. EVER.
Joseph Smith and Warren Jeffs would be pleased with this decision.
Utah’s New Attorney General Outlines His Policies On Polygamy Prosecutions
According to yesterday’s Salt Lake Tribune, Utah’s newly-elected attorney general, John Swallow says he will continue the policy of his predecessor Mark Shurtleff and will not bring criminal charges against consenting adults in plural marriages if they have not violated any law other than the state’s polygamy ban. It is estimated that 38,000 people live in polygamous communities in Utah. Swallow said that he however will “do everything we can to uncover any type of abusive practice going on in any community.” He will continue to defend the constitutionality of Utah’s bigamy statute in an ongoing challenge to it by members of an openly polygamous family (subjects of the television show Sister Wives).
Topsy-Turvy
I have made this point before in my post: “THOUGHT vs. DEED”. Jerryold Jensen’s motion and recent reply in the Kody Brown case seeking a ruling on the constitutionality of Utah’s farcical bigamy statute prompted me to make it once again.
The First Amendment forbids government to burden Americans’ exercise of their religious beliefs. The Reynolds court came along and eviscerated this liberty. It said that states could itemize a list of religious activities which can be believed in but NOT practiced. Thus, Utah (and some neighboring states) could include polygamy as a conduct which could be criminalized.
So, in the wake of Reynolds, you could believe in polygamy to your heart’s content (as Mormons do), but you could not practice it. The thoughts were just fine – the ACTIONS were not.
So, there are tens of thousands of Fundamentalist Mormons in the Intermountain West who eagerly embrace plural marriage in their minds. Utah residents who proceed to take a plural wife are presumptive felons (although the current Attorney General’s office insists on NOT prosecuting them).
The prohibited actions (contemplated in Reynolds) occur when a man is married to one person and goes to bed with a different person (male or female). That makes you a felony bigamist. The 2003 Lawrence decision overruled that legislation, otherwise tens of thousands of Utahns would be in prison now for bigamy. So they can’t prosecute the SEX. They have to rely on the other prong of the bigamy statute – the “purport” prong. You are guilty of bigamy if you are married to one person, and assert (believe) that you are married to another. Kody Brown has ONE legal wife. He THINKS of the other three ladies as “wives” in a religious sense, but the State has already said that having additional spouses is legally VOID and impossible. Legally, the other three women are girl-friends, mistresses, or just partners in an affair. So, Brown can call them “wives”, but wives they are not.
As Jerryold Jensen points out in his reply, Kody’s sexual activities with the various ladies are utterly shielded by Lawrence. It is the fact that Brown THINKS of them as “wives” that makes him a felon.
So now we have the unintended consequences of the Reynolds insanity. We have a state that REFUSES to prosecute the prohibited exercise (actions) of the believers, while it insists on criminalizing . . . . . . . . . . . .
THEIR THOUGHTS !!!!!!!!!!
Wait though! It criminalizes their lifestyle (existence and mindset) as did Bowers to homosexuals (until 2003), but the chief Mormon law enforcement officers of the state dare not prosecute it now for fear that someone like Kody Brown will come along and TEST the statute in the courts. The Church wrote the statute. Is it not the Church now who is frantically trying to salvage it? I wouldn’t be surprised if those Lehi Keystone Kops have already been excommunicated for the biggest tactical blunder in modern Church history.
Topsy-Turvy.
I’m a born again christian and my wife and I have discussed this issue at great lengths, finding out that, in our bible, nowhere does it say that a man can’t have more than one wife. And it has a lot of history where followers of God had more than one wife. Just because we live in 2012 doesn’t mean that God’s laws have changed. What it means is that our laws have changed, quite possibly in contradiction to what God would like for his followers. The fact is, Kody Brown and his family show a genuine desire to be as legal as possible with this question. Including to the point of not wanting to hide it anymore. They knew that it might result in some real legal problems but they were willing to take the chance of that price being paid, all in the interest of being honest with the public. What’s so bad about that. On top of all this, legal people think they have the right to actually SPLIT UP a perfectly happy family that obviously functions well and in a healthy way. All the families that got split up before. what happened to all of those kids, and how did the split affect them emotionally. This kind of thing is what can create criminals, or at least badly adjusted adults that can’t get a grip on who they are. Leave these families alone, and let them raise their kids the way that they want,as long as the kids are growing up healthy. Looks to us that the Brown children are raised in a healthy and morally correct way.
I’m looking for a friend named Chris Dennis. He is a friend of Tom Green. He is involved in poligamy. I love your program! It’s great. By the way, I want to look into the united brothern church. Can you give me information?
How about having the church contact me? Thank you. Sincerely, Jack Coey
They’re Not The Same
The Salt Lake Tribune published an article yesterday in which a Deputy Attorney General made some remarkable comments about Kody Brown’s challenge of Utah’s lame bigamy statute. In a state whose principal church successfully tells whopping lies to its membership it is not hard to notice that senior law enforcement representatives live in utter la-la-land.
Jerrold Jensen, whose unenviable task is to face down Jonathan Turley, suggested to Tribune reporter, Lindsay Whitehurst, that the 2003 Lawrence v. Texas decision will not help the Browns’ case. Just so you can see the absurdity of his thinking, let me play this out in simple terms.
When John Geddes Lawrence and his male partner were arrested in Texas for gay sex acts, it had nothing to do with any attempts to marry. Their crime was their private homosexual sexual activity. Gays all across the nation would love to get legal marriage licenses. That’s what Proposition 8 was all about. They don’t just want “legal unions”. They don’t want merely not to be classed as criminals any more – they want legal, state marriages – – you know – the kind with a state marriage license and certificate – the kind that only legal divorces can undo.
Polygamists have private sex – just like other married and single Americans. The Lawrence decision made all of that legal, – constitutionally protected. The sex and the private expression of it between (or among) consenting adults is beyond government’s power. Polygamists cannot be charged for their private sex, and Utah law enforcement officials damn well know it – which is why they now: a.) will never charge consenting adult polygamists, and they: b.) dread having to defend the bigamy statute. They insist that the law is constitutional, but they insist on not enforcing it. Let us read what AG Jerrold Jensen said –
‘. . . State lawyers, on the other hand, point to other court decisions upholding the ban and say marriage can be regulated by the government. They argue the law is fairly applied to both polygamists and people who commit fraud by marrying more than one unknowing person at a time. Deputy Utah Attorney General Jerrold Jensen said polygamists shouldn’t rely on Lawrence v. Texas, the landmark 2003 right-to-privacy case that struck down laws banning intimate homosexual contact.
“Plaintiffs try to equate private sexual conduct in the home with marriage,” he wrote in court documents. “They are not synonymous.”‘
Honestly, I am confused by his argument. He says that we polygamists equate our private sexual conduct with marriage. No, we don’t. We speak of our ladies as “wives”, but neither in Arizona nor in Utah does the state recognize or legitimize these religiously-framed relationships. In fact, in Utah, such relationships cannot claim official marriage status, because they are voided by law.
30-1-2. Marriages prohibited and void.
The following marriages are prohibited and declared void:
(1) when there is a husband or wife living, from whom the person marrying has not been divorced;
(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
(5) between persons of the same sex.
(6) Marriages between cats and dogs (yes, I added this one !!!)
I think what Jensen is trying to say is that the crime we polyg’s commit is that we think of our partners as “wives”, even though the state forbids such thinking, and that we become felons because we wish our relationships were licensed. On the contrary, we don’t wish to have our unions legitimized by the state, and certainly no homosexual has ever been arrested for wishing he could have a marriage license. Furthermore, Mr. Jensen, it seems to me that it is the state that wants to classify our non-legal relationships as “marriages”, so that it can find us guilty of committing bigamy. Tom Green spent several years in prison for having multiple wives, even though he was legally single.
Jensen is ostensibly conceding that Lawrence will protect the Browns’ sexual activities, but it will not protect the lifestyle they have adopted. I agree. Lawrence was never about lifestyle or relationships – it was only about private sex. However, when Jensen gets to argue his tortured reasoning in January, will he be able to point to a single statute or Supreme Court decision that affirms the criminality of a RELATIONSHIP !!!!!!!!!!!!!!!!! ? I can hear Judge Waddoups giggling already. Will Jensen argue that our crime stems from our improper use of the word “wife”?
In the 1940’s, one of Rulon Allred’s wives was arrested for playing the piano at a church frequented by polygamists. If Arizona and Utah still think that kind of tyranny is okay, I should move to France.
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Very interesting. I consider myself a libertarian in this arena, so I don’t object in principle to consenting adults entering into this type of relationship.
I am, however, a fiscal conservative. I haven’t seen this show, but I have seen the entire series “Big Love” on HBO. My primary concern is for the taxpayer in that these large families could become dependent on the welfare state because the husband (and the wives) cannot generate enough income to support themselves. That’s a difficult issue to address. I’m guessing that welfare fraud would probably not be considered a “collateral crime”.
Are we sure this is not a suit made in secret consensus with the Saudis? Can’t you just see on the OTHER side of the Great Salt Lake a mosque and a madrasah rising.
And an even bigger replica of Taj Mahal glowing in the moonlight in an oriental styled gambling den. The created
replica of the Grand Canyon will drain away the winter rains. leaving the Salt Lake dry.
But to the point, what implicit compact as to monogamy exists within our society for the puposes of arranging the best of liberties and life to its citizens?
Or is it simply the government has to accept the idea that to each individual accrues the right to make contracts with as many persons as they like—–food stamps or no food stamps. And if some want to be fruitful and multiply one man’s genes, it is not a matter for the government.
Just look at it this way–you don’t have to get married to live with a whole bevy of women and call them your wives. This family chose to make it as legal as possible and take responsibility for themselves and their choices. Let a polygamous marriage be legal–same rules as if for a monogamous marriage as to age and resisdency. Let all of the legal ramifications of marriage fall upon a polygamous marriage that fall upon monogamous marriages. Divorce and child support toward a wife who legally steps out of a polygamous marriage should be interesting–especially the child support because then the whole family’s income enriches and has to be tallied to pay the divorcee who gets residential custody…..!!!!!!!! Is this what these people really want? There are ramifications to everything that is legalized–both good and not-so-good. Think twice because you could get everything you ask for and more!
@roger gunderson: “Its nobody’s business if I have one wife or a hundred. The government needs to stay out of peoples lives.”
Even — except — when the “husband” sends all the “wives” for government (i.e. taxpayer) support by welfare payments & food stamps?
So, in Utah a HE can marry as often as HE wishes. Can SHE? Also, if HE can marry as many SHES in Utah as he wishes, why can’t HE Constitutionally marry as many HES as he wishes?
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