Federal Court Set To Hear Final Arguments In Sister Wives Case

On Thursday, the federal court in Salt Lake City is set to hear final arguments in the Sister Wives case. The hearing on the motions for summary judgment will be heard on Thursday, January 17th at the federal courthouse in Room 102 before Judge Clark Waddoups. The Brown family has challenged Utah Code Ann. § 76-7-101 (West 2010) under seven constitutional claims, including due process, equal protection, free speech, free association, free exercise, the establishment of religion, and 42 U.S.C. § 1983. As lead counsel, I am limited in what I can say about the case publicly beyond the statement below.

On behalf of the legal team (including our local counsel Adam Alba and our team of Geoff Turley, Matthew Radler and Gina D’Andrea), I want to express our gratitude to the court in bringing this case to the final argument of the merits. It has been an honor to argue this civil rights case on behalf of the Brown family and, by extension, the tens of thousands of other plural families in this state. They are seeking what most families take for granted: the ability to structure their families and their lives according to their own values and beliefs. The state has acknowledged that this family has neither committed any crime nor sought multiple marriage licenses. They have been declared to be felons under state law simply because they choose to live as one family. The Browns have not questioned the right of the state to limit its recognition of marriage and to prosecute those citizens who secure multiple marriage licenses from the state. Rather they are challenging the right of the state to declare either cohabitation or plural relationships between consenting adults to be a felony. We remain hopeful about the outcome of these trial proceedings and remain committed to continue this work on behalf of the Brown family and thousands of other families seeking to live according to their own values.

Jonathan Turley, Lead counsel for the Brown family

Kody Brown has made the following statement on behalf of the Brown family:

“On behalf of the entire Brown family, I want to thank Judge Waddoups for this opportunity to argue the merits of our case. We understand that this is a historic moment for all plural families and we are honored and humbled to serve as the plaintiffs in this action. We are especially grateful for the support of our counsel, Professor Jonathan Turley, Adam Alba, the students at George Washington University, and the many supporters who have stood by us over the course of this litigation. This has been a difficult road for us and we are relieved to see the case coming to the final arguments. We remained committed to this civil rights cause and the struggle of plural families, both religious and non-religious, in the state. We hope that Utahans can understand that our family – like tens of thousands in this state – are seeking only to be allowed to live according to our beliefs and not be declared felons simply because we are different.”

Here is the last filing in the case: Brown.Opposition.Summary Judgment.FinalMaster

45 thoughts on “Federal Court Set To Hear Final Arguments In Sister Wives Case

  1. Utah is so allergic to the idea of polygamy, they go totally overboard and say that people can’t even live together the way they want.
    The state’s only claim to control here is the issuance of marriage licenses. If persons or a family simply doesn’t want to play their game, and eschews the whole licensing of marriage, then really is a reach to tell people that they can’t live together and have sex with whomever they want to.
    This is a real civil libertarian issue, in many way related to the gay revolution. Gay people simply voluntarily associated with others they way they wanted, and that behavior was held immune from state control.
    The similar behavior of consenting heterosexual people should likewise be beyond the power of the state to control.

  2. It is intersting that the state is prosecuting people who are not married in the interests of protecting the institution of marriage.
    The core of the argument seems to be that these people are acting as if they were married – even if it is quite clear that they are not claiming to be legally married.

    If the state has an interest in protecting the instituion of marriage, they should logically prosecute married people who have sexual and/or emotional relationships outside of that marriage. It seems to me that such activity can be very damaging to the marriage, the partner and children.

    If the state is concerned with arrangements that are “rife with the physical and sexual abuse of women and children”, then I think it should take a long hard look at ‘normal’ marriages for that reason.
    I would be shocked to discover that that state were any less concerned about “physical and sexual abuse of women and children” where this took place within a ‘normal’ marriage.

    Surely Shirley, the problem is the abuse, and not the domestic arrangements in which it *might* take place.

  3. Interesting case. You are going up against the founding fathers’ Judeo-Christian belief of family values. If the state loses, be ready for either an appeal, legal retaliation (and this can come in many forms, i.e. a new charge\case filed against your clients), or a new state law, making it impossible for them to be ‘together’. As a Christian, I see it as a sin, and therefore, hope that they are not allowed to continue in this perversion. However, I don’t want to legally start telling people how to live their lives based upon what I believe.

  4. I think the Mormon Church probably has a strong hand in the law. One of the many knocks against the group has been polygamy. In an effort to reduce that avenue of attack the State stepped in and outlawed it while some number of believers still cling to it.

    I think the age of consent and that the partners involved are all capable of freely consenting as the dividing line. But there is a whole big ol can of worms waiting on the other side around divorce, inheritance, social security. That could be a full employment act for lawyers for a generation

  5. The state’s position, if one cares to cast it as such, goes against the grain of the life style of the wild west, which is sumarized as: pork em if ya gottem.
    The State of Utah is in essense trying to outlaw practices which the Mormons brought to Utah to evade prosecution for in other holier than thou states. So now Utah is trying to demonstrate that it is more holier than y’all.

    On a constitutional basis I would stick with, if you have pleaded it, the Nitnh Amendment. I would not characterize the right so much as right of privacy but as a right to be let alone where the state has no perogative to tell me how to live. “States Rights” on the other hand, has no place in the constitutional framework. People have rights. States have powers. States have no powers to intrude on people’s rights unless specifically so empowered by a provision of the constitution. Usually the States Rights mantra is heard when some mob has lynched a guy in Alabama and the federal government attempts to intercede in some fashion, for example with a federal police force or perhaps a criminal prosecution against the lynchers. In this case we will not hear States Rights! with an exclamation point. It will be a more subtle argument. Boiled down, who is hurt here when a guy lives with five women, is not married to any of them, or perphaps is married to one, and is porking all of them on separate occasions. This does not lead to a separate but equal argument. And, it is all not in one bed at one time with the kids watching.

    Some of the judges who are hearing this case have probably cheated on their spouses. They should not be too sanctimonious to the facts of this case.

  6. That spulling error above: its Ninth Amendment. These guys should be Taking The Ninth. Not the Fifth. Even if the number of wives is five.

  7. Should the clients be there? Or not be there? A nice guy seated there with five nice homely mormon women who are not sisters might all present well. Then it is not an abstraction. While you are at it court watchers, see if the judges have their eyes on any of the court clerks. Often there is some hanky panky going on in federal courthouses. Let em know that you approve. If the judge’s spouse is there in the audience you know that the ship is sunk– there is not going to be a right of privacy considered. The spouse is probably eyeing the judge eyeing the cute clerk and will get bi polar about the sister wives thing when they get home and he starts writing the opinion. The women judges will have a different point of view and will view the women wives, whether sisters or not, as chumps. Now, if they were hookers they would not be viewed as chumps. The male part of the equation, all things being equal, might be seen then as a chump for paying for something that should be free. Then, if you argue the free sex thing too long you might aggravate the hookers and that argument will get back to the judge if the judge is doing any hookers. So, it is a complicated case.

    I would argue that it is none of the business of the state of Utah to inquire what happens behind closed doors of a private home. It is not a cathouse. None dare call it a doghouse. Or treason.

  8. State has no compelling reason to make criminal the “committed” relationship of ‘Three’ while at the same time holding as honourable the identical “Committed” relationship of ‘two’.

  9. I’ve still got mixed feelings about this case. I used to be of the school of thought that polygamy was a bad idea for several reasons, but that it should be allowed on free exercise grounds and as a contractual matter as marriage is essentially a contract as a form of promise that comes with both benefits and obligations. However, Elaine (with the assistance of either Blouise or Smom, maybe both) made a pretty good case for their being some fairly hefty sociological problems the practice creates that changed my mind about it. While I wish success in the courtroom for the home team, I’m thinking all wins are not created equal.

  10. Marriage the described fundamental “Right” is not a positive liberty right such as Race. That being regulations and restrictions that can be reasonable taken as rational can be imposed upon the definition of marriage.
    The predominate rational qualifier is “One Man One Woman” coupled with implied Monogamy “in a life long union.” The former forbids plurality and the latter regulates fidelity.

  11. This is still on going? I thought this went to court forever ago. I’m not sure if I have a problem with it but it doesn’t feel right all the same.

  12. (Marriage the described fundamental “Right” is not a positive liberty right such as Race.)

    should of been “Negative Liberty” my error

  13. The courts are religious. Religious people worked to get Jesus arrested. Don’t people know scripture? The servant of the high priest is the one that had his ear cut off in Gethsemane. He was there because the high priest told him to be there.

  14. Gene H. 1, January 16, 2013 at 12:38 pm

    I’ve still got mixed feelings about this case. I used to be of the school of thought that polygamy was a bad idea for several reasons, but that it should be allowed on free exercise grounds and as a contractual matter as marriage is essentially a contract as a form of promise that comes with both benefits and obligations. However, Elaine (with the assistance of either Blouise or Smom, maybe both) made a pretty good case for their being some fairly hefty sociological problems the practice creates that changed my mind about it. While I wish success in the courtroom for the home team, I’m thinking all wins are not created equal.
    I can’t remember your religious persuasion, or lack thereof.

    Nevertheless, I think polygamy is an offence to athiests because all those forefathers and biggie fries in the Bible tendend to be polygamists.

    For example, Abraham (Islam, Judiaism, and Christian father figure), Jacob (a.k.a. Israel), Solomon (very wise guy), and many others were polygamists.

    I haven’t yet figured out why polygamists who are religious zealots who love Abraham, Israel, and Solomon do not like their matrimonial preferences.

  15. Dredd,

    My objections to polygamy are not religiously based. As I said above, they are based on sociological problems that polygamy creates that I had been unaware of until Elaine et al. brought them to my attention. Before that, as I view marriage and its proper relationship to the state as a matter of contractual relationships and attendant rights and enforcements thereof, I was for polygamy even though I personally think it’s a bad idea.

    As far as my religious persuasion? If I had to nail it down, I’d say non-denominational anti-organizational with a bent philosophically toward Stoicism, Soft Rule Utilitarianism, Buddhism, Gnostic Christianity, Confucianism, Zen, the teachings of Rabbi Hillel and Taoism with a healthy dose of scientific realism/objectivism (not to be confused with Randian Objectivism) who vacillates between agnostic Deism and atheism but I do not identify with any one system as my beliefs are very syncretic. I usually just say “complicated” when asked the question. It’s much easier.

    Or I say I’m a sun worshiper as stars are the ultimate engine of life.

  16. I’m pleased the family has such a winning team on their side. Their living arrangements are none of the state’s business to say it succinctly.

    My only worry is that there will be an automatic appeal and drag this on for half a decade or more. But if the family is willing to endure this it would be a good precident to become the law of the entire land, that is all districts. If it goes well that is.

  17. Gene, I remember that discussion well. It was Elaine, Blouise and I versus somebody named Scarecrow. We all seem to avoid the polygamy threads.:)

  18. If, however, I marry a man who then marries four more women, each of whom marries two more men, one of whom marries a woman I really can’t stand, can I divorce her? If I do divorce her, do my husbands have to divorce ME? How will we all make sure we don’t get a judge who can’t do the math?

  19. The only times I was in group sex with five woman I could not claim the Free Exercise Clause because I had to pay all five of them. Amsterdam, in my prior life as a human. But, I would like to explore the relevance of the Free Exercise Clause on this case. Someone explain its relevance.

  20. As one who has a difficult time dealing with just one wife, I could not imagine five of them itchinBay and griping all at once. Mark Twain has a nice little tidbit about his observations of Mormon wives in his book Roughing It. He makes the husband look so kindly and charitable to take in five homely looking things. I wish that he was around to chimne in on this topic.

  21. I think that each Prong of the First Amendment needs to be explored here for the plaintiffs in this case. Here is the text of the First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

    First of all it is applicable to the states through the 14th Amendment. Civil rights delineated under the First and Fourtheenth (or any constitutional provision) are protected and can be sued under the Civil Rights Act or 42 U.S.C. Section 1983.

    Here if the five wives thing is an element of the plaintiffs’ religion or faith then here the state has passed a law respecting the establishment of its own religion to the detriment of plaikntiffs. They have the right to “free exercise thereof” of their own religion. Group sex is one aspect. Then, overlooked by the Turley comment above is the right of all six of them to peaceably assemble. Then there is the right to petition the Government for the redress of their grievances. i.e. the squelling in the night. The free exercise prong can have some funny yet relevant permutations here. Group sex is exercise and it needs to be freely done. Even if the five wives, group sex thing is not part of the plaintiffs’ religion, you might allege that the denial of same is part of the governments establishment of its own verison of Christianity.

    A basic tenant of my religion is pork em if ya gottem. But I think here the Mormon thing needs to be invoked. That plaintiffs are origiinalists in that they preach the gospel of the Mormon church when five wives was the norm. We are not talking Norm Lasky here.

    Get a photo of the judge coming out of the cathosue in Vegas, in the sister state of Nevada, and the plaintiffs are home free.

    And, that is this dog’s advice.

  22. My question: If the Brown family wins its case (and assuming it isn’t appealed) does this mean a woman can then take multiple husbands? Or does the polygamous marriage have to have a religious basis? In which case, if I find written on one of my plates while washing the dishes one night instructions that women should marry more than one man, then that would be recognized? Just wondering….

  23. The article sewed some confusion as to the proceedings taking place. The case is on for a Motion For Summary Judgment filed by one party or the other. The district court judge can decide the motion, or cross motion if there is one, and the case could be determined wholly or partially. Then it would go to the Court of Appeals for that Circuit Court of Appeals under which it falls into. So today wont be fhe Final argument or the last word on these sisters. Usually that term is employed for the final argument after a jury trial has been conducted and each side gets up and gives their spiel, also known as Closing Argument. When the case gets to the Court of Appeals for the ____ Circuit, it will draw a panel of three judges and perhaps the Court En Banc meaning the entire bench of that Circuit. So as many as six brothers and five sisters could end up hearing the case. Then a losing party may try to get the United States Supreme Court to hear the case. The Oral Argument there would be the “final” say on behalf of the five sisters.

    If this group sex case goes up on religious grounds, that poligamy ain’t bigamy because its Mormani, then things will get dicey and not necesssarily spicy. If the five wives look like the wives described by Mark Twain in Roughing It then perhaps the husband who shepards them into the courtroom will get some sympathy. They will get a more sympathetic ear if the evidence is that they have individual sexual encounters, if at all, rather than group sex. If some affidavits come into the hearing today as to the nature of the sex then that could get interesting. Since it is a Summary Judgment proceeding there will not be a trial with live testimony– only sworn testimony from depositions or statements under oath in the form of affidavits. After all is said and done there will likely be some swearing about this situation in Utah. All things would be simpler if they were just a band of hippies “doin their ting” Sometimes religiousity knows no bounds or in this case “outer limits”. Maybe five is the limit. Six wives might be considered “ostentatious” in those parts. This is Utah, not Vegas. And things that play in Utah dont stay in Utah. That is why this case has national attention. Had this happened in Vegas you would not have heard a peap. Unless you lived next door or on the floor below. Then, dog only knows what you would hear.
    Anyway, what is coming up in court is an oral argument on a Motion For Summary Judgment for which there has been no trial, just submission of motions and affidavits, depositions and exhibits. The judge did NOT get to hear from the five wives in person.
    Ok, nuff said. This dog has to go back to the dogpac and see what opportunities might arise in the way of dog sex. You humans are something else– five at once. Jeso.

  24. BD,

    If I recall the government wanted to dismiss. If Federal Rules of Procedure are still the same, it takes the other party to agree. They said is essence that they would no longer prosecute thus case. If I recall further the Defense then file it’s dispositive motion to make what the prosecution said part of the laws of that circuit… In which they are binding unless overturned on appeal…

  25. Maybe the” nice ” ( that’s a horribly insipid adjective ) is spoken as a perjorative .because the nice husband brother doesnt even think the word homely when he is in his various bedrooms. I think most average looking women are more likely to land a gorgeous man (N.B actors . Joanne Woodward and Paul Newman ) than most people admit . To hide in a weird polygamist cult, whose homely wives have other issues than their facial imperfection is not emotionally honest. Though people get married for the wrong reasons, I feel sorry for the polygamist husband brother who seems to think as you do Barkin Dog has to placate his numerous loves with “you know I think you less homely than the others ” . Some men have a Infantile need to dominate , including the need to be Bert Parks every evening!

  26. I think many comments here miss the point here. This case will not change legal recognized marriage. It will simple allow people the freedom to live as they wish without government abuse. It should not be against the law to call the woman that you are with a wife instead of a girlfriend.

    Best wishes Prof. Turley and Brown family. I hope you strike a blow for freedom and the pursuit of happiness without undue government interference.

  27. A better wording of what I intended to say would be : ” I think more average looking women are just as likely to land a gorgeous man as their prettier sisters are than their prettier sisters would like to admit . ” Linda McCartney was vilified by girls who couldn’t believe the cutest Beatle would be attracted to a plain Jane .

    The sentence “Though ..” should read ” Though some people get married or become engaged without thinking about it in practical terms . ”

    The remarks by all the doggie writers are very compassinate for the odd cultural dynamic . Although these families think their lifestyles natural , the polygamist parents seem to me like very conservative hippies .

  28. RWL and judeo-christian society formers,

    “But there is a whole big ol can of worms waiting on the other side around divorce, inheritance, social security. That could be a full employment act for lawyers for a generation”

    Thanks for letting folks associate without your religious beliefs determine by law if it allowed or not. Seriously appreciated.

    And my reply is short: Those who built the system so that it infringed on Constitutional guarantees, shall take their responsibility and fix the can of worms problems resulting. They could have been solved by a police state or perhaps a laissez-faire state attitude, ie what you do is up to you to solve
    Result: Tort claims will abound. And is that bad in times of unemployment.

    Polices state? Yes if rights to law structures, inheritance, child support upon divorce is to be governed by law and justly, then the facts must be recorded for the whole association as its composition changes, whenever that occurs.

    Or more pithily: You phucked it up, so fix it.

    Did you interfere when the Taos collectives began? No! Who each screws with, and how and why they live was their problem. As far as I know????

    The rest of the comments, I will maybe get around to later—-if they are as good as the first ones.

  29. Idealist707

    I have to use my children’s reponse on your comment: You are soooooo late that I am not even going to go there.

  30. RWL,

    As a non-colloqual non-idiomatic user of AmeriEnglish, I’m forced to leaving interpretation of your kids’ reply to you or them. 44 years in Sweden leaves one impaired. Not the least as to the many new jargons, etc.

    The 20-year olds here speak better than I can. And write better too, I presume. A result of the Americanization of the world.

    Note however we have a Swedish band in the top ten (3) of Billboard (?).
    I don’t follow it but the newshungry TV channels do and keep me informed.

    Let us say that I did not expect “d’accord” from you.
    Nor a reply at all. Just selected you, having read so far in the pile, as a launching pad for my views. Yours was a worthy summary of the “let’em do what they want, but not in my backyard”–attitude. Curious in a believer in Judeo-Christian morés.

    Thanks again for the loan.

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