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. Marriage as a state interest is a contractual relationship between two people and the state’s interests all lay in the nexus of their interrelation and their relationships with third parties.

    Have not yet read in any case presented by the State a defination of marriage as you describe

    Do see what the defenders of FOMA say
    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.

    have no idea where you get your info, surely not from what is presented before the courts

    The Nation historically has only recognized 1 man 1 woman marriage
    Loving v. Virginia 1 Man 1 Woman
    anti-polygamy laws prove the nations adherance to 1 Man 1 Woman

  2. Making a bet for someone they didn’t make? That’s par for your course, Monte. You want to restrict the rights of others to contract based on two concepts that aren’t valid state interests that force religious restrictions on their personal relationships.

    I don’t owe you anything Monte except incredulity at your ignorance of how the law operates in reality.

  3. “Natural procreation” is a religious concept, Monte. Procreation isn’t a valid state interest in marriage. A marriage license isn’t a contract with the state guaranteeing you’ll procreate. You can try to move that goalpost all you like, but it isn’t going to work. Marriage as a state interest is a contractual relationship between two people and the state’s interests all lay in the nexus of their interrelation and their relationships with third parties.

    Man, you are dense.

  4. Really? You adding “psychic” next to that “avid checkers player” on your resume, Monte?

    Yup, you will be owing me a box of doughnuts after SCOTUS agrees to hear the case

  5. ‘all rulings concerning DOMA are stayed pending SCOTUS”

    ROFL

    That is the most ridiculous thing you’ve said yet. The ruling of the Federal Court is final unless and until cert is granted and SCOTUS rules. The Federal Court of Appeals is the final court of appeals next to SCOTUS and SCOTUS review is discretionary. Their rulings are binding and final unless cert is granted. DOMA doesn’t get an exception to this just because the religious right theocratic fruit loops favor it.

    And lawyers don’t play checkers. They play chess. Which explains why you keep losing this game.

    “Is no question that SCOTUS will hear the case”

    Really? You adding “psychic” next to that “avid checkers player” on your resume, Monte?

  6. “Saying that the states cannot restrictively define marriage based on religious definitions ”

    again you say the only reason is religious, a biased opinion on your part. You assume that support for 1 man 1 woman marriage is solely a religious concept. Quite simple the State supporting marriage that is based upon natural procreation, to steer those that naturally procreated into marriage, and in doing so they receive State support

  7. “DOMA is unconstitutional on Equal Protection grounds. That’s how precedent and finality work.”

    all rulings concerning DOMA are stayed pending SCOTUS, both parties agreed to this with the understanding that should SCOTUS uphold DOMA the parties would not be stuck with a big tax bill to repay the Feds

    Guess you do not play checkers, the state is in the position now to approach SCOTUS, puts the other side on the defence.

    Is no question that SCOTUS will hear the case, it is after all a matter of national importance, a case the 1st punted through to SCOTUS

  8. “and that breaks the bond,”

    No it doesn’t, snapperhead. Again . . .

    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.

    DOMA is bad legislation and runs prime facie runs afoul of the 14th Amendment.

    Also, your fallacy of many questions tactic is not effective. Simply tedious.

    You go ahead and spin another tenuous argument based on legal principles you clearly don’t understand.

    I’m going to sit over here and snicker.

  9. “which is your opinion and not that of the defenders”

    No, it’s my opinion based upon the Constitutionally defined roles of the Legislative versus the Judiciary. The defender’s intent is irrelevant. Intent is irrelevant to legislation regarding its constitutionality and that constitutionality – absent a Constitutional amendment – is not up to the Congress to decide, but rather up to the courts. Again, 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., which has not been heard by SCOTUS yet if at all. Until it is, DOMA is unconstitutional on Equal Protection grounds. That’s how precedent and finality work.

  10. “You have to break that bond before alternative marriages can be given federal status. ”

    No, you don’t. You just have to rule DOMA unconstitutional.

    and that breaks the bond, no federal stated rational to support marriage ends the tax benefits, an increase to the treasury

  11. “Again, the intent of Congress in enacting DOMA is irrelevant to its (un)constitutionality.”

    which is your opinion and not that of the defenders, which is Congress itself.
    No State mat rewrite Federal Taxing Policy, its that simple.
    If you played checkers you’d be happy with the King you were played into receiving. While you rejoice in that minor, the board is cleared by your opponents next move.

    Course DOMA will be upheld
    “It is not our job to protect the people from the consequences of their political choices.”
    Justice Roberts. Both Obamacare and DOMA are duly-enacted federal laws, after all.

    First Circuit DOMA No. 10-2204
    In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.
    The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.

    See H.R. Rep. No. 104-664, at
    Preserving this institution is not the same as “mere moral disapproval of an excluded group,”
    Lawrence, 539 U.S. at 585
    (O’Connor, J., concurring), and that is singularly so in this case
    given the range of bipartisan support for the statute.

  12. And I’ll save myself the trouble: the rest of what you say is blather and legal gibberish, Monte.

    Carry on.

  13. “You have to break that bond before alternative marriages can be given federal status. ”

    No, you don’t. You just have to rule DOMA unconstitutional.

    “Of course the federal position is 1 man 1 woman, break the bond and their is no reason for the feds to recognise any marriages at all”

    Actually, no, it’s not. The DOJ isn’t defending DOMA so the Federal position is that the lower courts ruling that it is unconstitutional isn’t going to be challenged by the Federal government. That bodes ill for the rest of it being upheld.

    And the secret to comedy is repetition:

    ““the law as written does not target the polygamous practising sect of Mormonism, but rather prohibits plural marriage under any circumstance.”

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious.”

    Duh.

    “That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.”

    Again, the intent of Congress in enacting DOMA is irrelevant to its (un)constitutionality. They can intend to make Christianity the official religion of the United States but it would be prime facie unconstitutional.

    I liked you better at you old job: riding around on a pirate’s shoulder.

  14. Now you bring another issue
    yet sec 2 of DOMA is not before the courts, yet
    If DOMA tips the scale then so does the RMA
    The RMA tips the scale giving 1 State the power to dictate to the others what the definition of marriage is

    First Circuit DOMA No. 10-2204
    English= Say bye bye to RMA
    These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the
    justifications are assessed.

    This RMA section unconstitutional
    Section 1738C of title 28, United States Code, is repealed

    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

  15. See we do agree the law targets not a group, it is applied equally across all.
    the law reaffirms 1 man 1 woman marriage, no more, no less
    when discrimination is applied equally across all, its become neutral.
    You may question the validity of that discrimination, in this case it holds 1 man 1 woman marriage as the reason. You have to break that bond before alternative marriages can be given federal status. Of course the federal position is 1 man 1 woman, break the bond and their is no reason for the feds to recognise any marriages at all

    “the law as written does not target the polygamous practising sect of Mormonism, but rather prohibits plural marriage under any circumstance.”

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

  16. “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 –

    that is an assumption on your part”

    Actually, no it’s not an assumption. That is in effect what holding DOMA unconstitutional does when extended through to the states via the 14th Amendment.

    “actually have no problem with the polygamy laws for they support
    1 man 1 woman”

    Apparently you don’t understand the prefix “poly”.

    “anti-polygamy laws were — and are — facially neutral. They apply equally to secular and religious.”

    Good. Then they don’t violate anyone’s 1st Amendment rights despite your previous contention that they do.

    “That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman”

    Circular logic. Congresses intent in enacting DOMA is irrelevant to its unconstitutionality – which is the determination of the judiciary branch to make, not the legislative branch.

    Your argument isn’t “[r]eally quite simple in its complexity”.

    It’s simply wrong as a matter of Constitutional construction and interpretation. You seek to create the wrongful impression that polygamy being constitutional is a foregone conclusion when it is anything but as a matter of law. Settling that matter is the core of the case at bar and as much as I like and admire Jonathan, a win for the polygamists is not a slam dunk and in fact it has quite a bit of precedent and sociology and psychology working to against it to provide a more than sufficient state interest in preventing polygamy.

  17. Matt J, you’re right. I guess I have gotten much more verbose federal judges than you have. One of them wrote 12 pages on why he did not have jurisdiction to hear a habeas corpus ON REMAND FROM THE FOURTH CIRCUIT COURT OF APPEALS, and concluded with a section he called “supplemental reasons” in which he opined that people who had hearings therefore had the opportunity to PROVE their innocence!

    And he’s a respected jurist! So are they all, all respected jurists.

  18. Also note that Free Exercise is not an absolute right either. Even under the narrowed compelling interest standard from Employment Division v. Smith, 494 U.S. 872 (1990) and the general applicability requirement from Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the law as written does not target the polygamous practicing sect of Mormonism, but rather prohibits plural marriage under any circumstance.

  19. “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. ”

    actually have no problem with the polygamy laws for they support
    1 man 1 woman

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

    Really quite simple in its complexity

    The harmful behaviour of an act to society is weighed against the Citizens right to choose. 1 man 1 woman has balanced behaviour against choice and does not violate the 14th

  20. 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 –

    that is an assumption on your part

    State-endorsed exemptions to same-sex marriage recognition raise serious equal protection concerns.

    The exemptions seek to immunize discriminatory conduct by individuals, officials and market-based entities on the grounds that the discrimination is motivated by sincerely held religious beliefs. Such a privileging of otherwise prohibited conduct on the basis of its religious origin constitutes the sort of government endorsement of religion that the Court has previously found to violate the Establishment Clause.

    Once the state recognizes same-sex marriage, it should not be able to dilute that recognition by differentiating among marriages or by allowing private individuals or entities to do so.

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