Federal Court Rules In Favor Of Sister Wives Lawsuit; Denies Second Motion To Dismiss

Just an hour ago, Judge Clark Waddoups handed down an opinion denying the second motion to dismiss filed by the government. Despite predictions that the motion would succeed, Judge Waddoups has now set the case for final arguments on the merits and rejected the claims of the government that the case is now moot after it announced that it would not prosecute the Brown family.


This was the second effort to dismiss the case without a ruling on the constitutionality of the statute by the government. The first motion to dismiss was based on a claim of lack of injury. This second motion to dismiss is based on the claim that the matter is now moot. The government asked the Court not to rule on the constitutionality of the state law in light of recent changes in policy.

The court holds:

Mr. Buhman’s non-prosecution policy was implemented more than eighteen months after the alleged conduct that gave rise to this suit occurred. As discussed above, the timing of the policy implementation, lack of any public notice, and lack of reasoning given for adopting the policy suggest that the policy was implemented, not to provide a remedy to Plaintiffs in this case, but instead to evade review of Plaintiffs’ claims on the merits. Moreover, the policy implemented by Mr. Buhman does not provide Plaintiffs with all the relief they are seeking. It has already been established that the policy at issue is insufficient to alleviate the risk that Plaintiffs will be prosecuted or threatened with prosecution for their violation of Utah’s anti- bigamy statute in the future. Plaintiffs are seeking a declaration from the court that the statute is unconstitutional and a permanent injunction against enforcing the statute against them “on the basis of their consensual plural family association.” Civil Rights Complaint 39 (Dkt. No. 1).

Plaintiffs are also seeking relief under 42 U.S.C. § 1983 for injury they claim to have suffered because of threats of prosecution. The policy of Mr. Buhman’s office falls far short of providing Plaintiffs with all the relief they seek.

As previously noted, I must remain circumspect in any public comments on the case since I am serving as lead counsel for the Brown family. However, on behalf of the Browns and the legal team, I wish to express our thanks to the Court in clearing the way for a ruling on constitutionality of the anti-Bigamy statute. While our opposing counsel Mr. Jensen and Mr. Roberts should be credited with an impressive and determined defense of their client, this decision shows that there will be no alternative to a ruling on the merits in this case. I am grateful for the inspired work of our legal team including Adam Alba, Geoffrey Turley (no relation), Matthew Radler and Gina D’Andrea.

The decision does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family. Regardless of the outcome on the summary judgment motions now scheduled by the Court, both the Brown family and the people of Utah can now expect a ruling on the power of the state to criminalize private relations among consenting adults. It is a day that the Browns and many plural families have waited a long time to see in Utah. They are profoundly thankful to Judge Waddoups for allowing that day to come.

Jonathan Turley

Here is the opinion: Order Denying Motion to Dismiss

119 thoughts on “Federal Court Rules In Favor Of Sister Wives Lawsuit; Denies Second Motion To Dismiss”

  1. “Polygamy, plural marriage harms no one, they are consenting adults, even fit within the goals post of natural procreation, yet still is illegal.”

    That is your contention to prove before the bar. There is evidence to the contrary regarding harm from plural marriages both to the individuals and to society. That is what will be decided here: is there a legitimate interest in prohibiting polygamy based upon the evidence surround polygamy (not by falsely equating it to something it is not).

  2. “It will eventually fail in toto when subject to proper scrutiny under the U.S. Constitution.”

    now your getting to the meat of the matter

    SCOTUS will use the simple Rational test

  3. You’re wrong to assume you know what you are talking about.

    The 10th Amendment does not give the States the ability to overrule the Federal Constitution. The Supremacy Clause is clear on that issue as is the subsequent precedent. Saying that the states cannot restrictively define marriage based on religious definitions – which is in effect what overturning DOMA is doing – is not in contravention to the 1st Amendment at all. You don’t think anyone but one man and one woman should get married? Then don’t marry someone of the same sex. No one is stopping you from practicing your religion in marrying only one person of the opposite sex and no one is forcing you into a homosexual marriage. Your 1st Amendment rights are protected. In fact, overruling DOMA bolsters the 1st Amendment’s Establishment Clause by not allowing states to impose the tenets and restrictions of Christianity on those who may not hold them. See, that Separation Doctrine works to protect everyone from having someone else’s religion imposed on them by the power of law, including those who would push Christian values on others.

    You’d understand that if you knew how the law actually operates instead of talking like a loon trying to impose theocracy by forcing everyone to accept your narrow Christian definition of marriage.

  4. By your account any one State that defines marriage should be recolonised by all the others, we know that is not so

    “In arguing that other states do not have to recognize same-sex marriages under the Constitution’s ’full faith and credit’ clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins, an uncle and a niece, and same gender siblings.”

    Polygamy is a far better utilization of resources than 1 man 1 woman marriage, plenty of observations in nature to show the alpha male in charge of the herd. But we do not live as animal do.

    Polygamy, plural marriage harms no one, they are consenting adults, even fit within the goals post of natural procreation, yet still is illegal.
    Not for the actions of the individuals but for the benefits afforded marriage. When a spouse of said marriage passes how would SSI distribute the surviving spouse benefits when more that 1 exist.

    1 man 1 woman laws solve all the issues with alternative marriage schemes

  5. Malisha,

    Federal courts do what they decide to do and then give their reasons. Plus ca change…
    ============
    Sometimes they don’t even give their reasons. They spout total incompetence, then deny the petition for rehearing.

  6. “DOMA is Federal taxing policy established prior to any State enacting form of alternative marriages.” Mischaracterization. DOMA is a United States federal law that intended to define marriage as the legal union of one man and one woman for federal and inter-state recognition purposes in the United States but it is failing in a piecemeal fashion for being unconstitutional.

    “Any harm done is at the State level and not the Feds” except for the violation of Federal anti-discrimination laws and civil rights due all citizens under the U.S. Constitution.

    Judge Vanessa Bryant ruled that the Section 3 of DOMA which prohibits the federal government from recognizing same-sex marriages, violates equal protection guarantees in Pedersen et al v. Office of Personnel Management et al. Now where is that equal protection clause located again? The 14th Amendment.

    Fight against the erosion DOMA all you like.

    It will eventually fail in toto when subject to proper scrutiny under the U.S. Constitution.

  7. You assume, wrongly that their is a right to receive federal benefits. There is not.

    States under the 10th can define marriage any old way they see fit, Federalism does not give the States the authority to rewrite federal policy.
    State can enact polygamy if they choose, same State cannot dictate to the other States or the Feds that definition.

    14th is not the avenue to force marriage definitions upon your neighbour. Violates the 10th and the 1st

  8. Now, do you have anything else to add to your false equivalence concerning plural marriage versus “traditional marriage”?

    Or do you just want to keep trying to steer away from the subject of polygamy.

    Because, again, your ignorance of how the law actually operates in terms of precedent and controlling authority is tiresomely trollish.

  9. As the SCOTUS ruling to the ACA made clear, the States have no authority over the federal taxing policy.

    DOMA is Federal taxing policy established prior to any State enacting form of alternative marriages. Any harm done is at the State level and not the Feds

  10. “States can define marriage” but not for purposes that conflict with Federal law or the United States Constitution. Again, the Supremacy Clause and the 14th Amendment.

    Argumentum verbosium using state court decisions isn’t going to hide that you don’t understand the hierarchy of authority inherent in Federalism and how it relates to state’s rights.

  11. One and all follow the natural procreation stance as the sole reason for supporting marriage

    First Circuit DOMA No. 10-2204

    English= States can define marriage
    Supreme Court interpretations of the Tenth Amendment have
    varied over the years but those in force today have struck down
    statutes only where Congress sought to commandeer state governments
    or otherwise directly dictate the internal operations of state
    government.
    Printz v. United States, 521 U.S. 898, 935 (1997); New
    York v. United States, 505 U.S. 144, 188 (1992).
    Whatever its spin-off effects, section 3 governs only federal programs and
    funding, and does not share these two vices of commandeering or
    direct command.

    Hawaii Federal Court Case 1:11-cv-00734-ACK-KSC
    “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

    Marriage Tax Benifits
    Case: 12-15388
    06/11/2012
    Marriage serves interests inextricably linked to the
    procreative nature of opposite-sex relationships
    Civil recognition of marriage historically has not been based on a
    state interest in adult relationships in the abstract. Marriage instead is
    predicated on the positive, important and concrete societal interests in
    the procreative nature of opposite-sex relationships. Only opposite-sex
    couples can naturally procreate, and the responsible begetting and
    rearing of new generations is of fundamental importance to civil society.
    It is no exaggeration to say that “[m]arriage and procreation are
    fundamental to the very existence and survival of the race.” Skinner v.
    Oklahoma, 316 U.S. 535, 541

    Baker v. Nelson
    The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/”
    Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
    We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
    Affirmed.

    Hernandez v. Robles, New York Court of Appeals (2004)
    The New York Court of Appeals (the state’s highest court) rejected claims by same-sex couples that the state’s marriage laws were offensive to the state constitution’s Due Process and Equal Protection clauses.[33] New York courts treat the state’s Equal Protection Clause interchangeably with its federal counterpart. [34]
    Plurality Opinion (Smith, R.S., J.)
    We find no inconsistency that is significant in this case between our due process and equal protection decisions and the Supreme Court’s. No precedent answers for us the question we face today; we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v Nelson bars us from considering plaintiffs’ equal protection claims.

    Morrison v. Sandler, Indiana Court of Appeals (2005)
    The Indiana Court of Appeals upheld the dismissal of a case brought by several same-sex couples who challenged Indiana’s marriage statutes. On appeal, the couples claimed that the statutes violated several provisions of the Indiana Constitution, principally the Equal Privileges and Immunities Clause (Article 1 § 23). The majority opinion (Barnes, J.) concluded its description of Baker with:
    Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case.[32]

  12. That’s some amazingly contorted logic there, Monte. And some fine cherry picking. Did you do that all on your own or did you have help? The speed of your reply tells me you are working from a sheet.

    The reason DOMA is going to be ruled unconstitutional (again) is based on civil rights as applied to the states via the 14th Amendment, not that traditional one man one woman marriage as a form is in itself unconstitutional.

    None of which has anything to do with a valid state interest in anti-polygamy laws. Apples and oranges. But you keep trying to distract from the subject at hand – whether polygamy is constitutionally protected or not – by trying to equate the issue to homosexual marriage. It’s a false equivalence when you started down this path and it is still a false equivalence.

  13. “been declared constitutional under the U.S. Constitution by a Federal Court or SCOTUS.”

    Hawaii Federal Court Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12

    Feds argument on cert before SCOTUS

    DOMA on cert to SCOTUS
    “society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.” House Rep. 12, 13.

    And again only natural procreation is argued

    First Circuit DOMA No. 10-2204

    As the Supreme Court observed long ago,
    [t]he whole subject of the domestic relations
    of husband and wife, parent and child, belongs
    to the laws of the States and not to the laws
    of the United States.
    Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re
    Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia,
    388 U.S. 1, 7 (1967) (marriage).

    get SCOTUS to rule that traditional marriage is unconstitutional and so goes the benefits

  14. Too bad for you the Federal Constitution trumps State Constitutions, Monte.

    It’s that pesky Supremacy Clause (Article VI, Section 2) and the 14th Amendment.

    And the whole you not understanding how the law works thingy.

    Now seriously, you are simply tedious. Show where that definition has been declared constitutional under the U.S. Constitution by a Federal Court or SCOTUS. That’s where the rubber meets the road. Since that definition is essentially the same as DOMA and that has been held unconstitutional already by Federal Courts and is pending cert with SCOTUS?

    Good luck.

  15. This is the Constitutional basis for Traditional marriage and its benefits
    Hawaii
    Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 9 of 120
    2894

    It is undisputed opposite-sex couples can naturally procreate and same-
    sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.
    ^^^^^
    Each individual has the same rights as every other individual, to marry or not marry 1 and 1 only of the opposite gender. A position reinforced by the anti-polygamy laws.

    There is no fundamental right for couples to marry as some state allow first cousin marriage while others do not.

    The case of this article is only about decriminalization of the actions of consenting adults, using L v. T as support.

  16. Blah blah blah.

    ““The valid state interest in marriage laws” is what the state argues before the Court, not what you would like it to be.”

    No. The valid state interests in marriage laws are exactly as I listed them although that list was not all inclusive. The whole 1 man 1 woman theocratic nutjob definition is at the heart of DOMA. I’ve already told you your religious definition of marriage has been held unconstitutional in re DOMA’s tax and benefits provisions and that definition is facing more challenges on more fronts.

    You’re the one who says “Right now the state says natural procreation 1 man 1 woman” and right now, that kind of discriminatory definition has been held unconstitutional.

    If you want to prove it is Constitutional, “Monte”? That burden of proof rests on you. I’m not the one saying it’s Constitutional. You are. Shifting the burden of proof is a logical fallacy and a tool used by trolls world wide to try to make what they are saying sound legitimate when it is purely propaganda. The burden of proof rests with he who makes the claim.

    Get to work. Show you work too. Sourced and cited.

    Just admit you’re a homophobic theocrat who wishes to impose your Christian definition of marriage upon others using the force of law.

    It’s obvious that is your agenda.

    Or continue to dance around asking for proof from me that you are not due as claimant.

  17. Gene

    “The valid state interest in marriage laws ”
    is what the state argues before the Court, not what you would like it to be. In order for you to change it you will have to gain the political will to do so and have that change subject to legal review.
    Right now the state says natural procreation 1 man 1 woman
    That plan infringes not upon any established rights.

    “contradiction to the Establishment Clause.”
    As the Hawaii case showed, existing Traditional Marriage laws are Constitutional

    You need a compelling reason to show why the current laws are unconstitutional

    “What is the Constitutionality basis of the 1 man 1 woman marriage laws.”
    If you do not know, just say so

  18. So they’re not refusing to exercise jurisdiction based on mootness, huh?

    Capable of repetition yet evading review?

    Federal courts do what they decide to do and then give their reasons. Plus ca change…

    I wish other issues of life interests could get into and stay in the federal courts. Only come civil rights are more equal than others.

  19. I’ll keep it even simpler for you, Monte.

    The valid state interest in marriage laws like licensing is for the purpose of determining rights they have in relation to one another, third parties and the state regarding contracting, intestate devolution, surrogacy during incapacity, etc.

    I’m going to make this far simpler too.

    I’m not going to play your religiously loaded question game.

    You’ve grown tiresome in your zeal to define marriage narrowly and along religious terms in contradiction to the Establishment Clause.

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