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. 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. πŸ˜‰

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

  2. 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.

  3. 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?

  4. 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?

  5. “Partnership” was always a form of economic and political alliance.
    Then the church and the state got involved.
    The more cooks there are……

  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. 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 Β§ 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?

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

  9. 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.

  10. 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?

  11. 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.

  12. IMO government should not define or license marriage at all. Why should anyone need permission from the State to make “partner”?

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