Incoming Utah Attorney General Announces That He Will Appeal Sister Wives Ruling

ad611-sister-wives-season-4Incoming Utah Attorney General Sean Reyes has announced that his office intends to appeal the ruling striking down the criminalization of cohabitation in the Sister Wives case. The decision will ultimately send the case to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado. However, the trial court has not yet issued a final order due to a couple outstanding issues. Once that order is issued, the Attorney General’s office will have 30 days to file a notice of appeal. In a surprising decision, the Attorney General also indicated that he will no longer have his office defend the Utah ban on same-sex marriage (struck down by Judge Robert Shelby) and possibly the cohabitation law (struck down by Judge Clark Waddoups). That will require the hiring of outside counsel and an outside firm to defend these laws as opposed to the Office of the Attorney General itself.

As lead counsel to the Brown family, I am confident that the rights secured in Judge Waddoups decision will be ultimately upheld. While we encouraged the state not to appeal this historic decision, we are prepared for this appeal and eager to present our arguments to the United States Court of Appeals for the Tenth Circuit.

It is particularly disappointing to hear that the incoming Attorney General of Utah, Sean Reyes, would make his first public announcement a challenge to a decision affirming the freedom of religion as well as privacy. His appeal will necessarily argue that the free exercise of religion under the first amendment should be more narrowly construed in favor of the government. He will also have to oppose the principle that consenting adults have a right to live according to their own values so long as they do not harm others.

Let us be clear. This is a discretionary appeal and nothing compels the state or Mr. Reyes to try to reverse the District Court of Utah. Mr. Reyes takes an oath to uphold the Constitution. Fighting to strip citizens of core rights of religious freedom and privacy is hardly a necessary or a redeeming act for any public official. Nevertheless, these are not Utahan rights but American rights. It will be an honor to defend this decision, and the rights of the Brown family, in Denver.

Jonathan Turley
Lead Counsel to the Brown family
December 26, 2013

Kody Brown issued the following statement on behalf of the Brown family:

We are obviously disappointed by news that the incoming Attorney General has decided to appeal the decision to strike down the criminalization of polygamy. We left Utah after being subject to two years of investigation by prosecutors who called us felons because we chose to live as a plural family. We were told by our lead counsel, Professor Jonathan Turley, that we will now go to Colorado to defend this decision protecting our religious and privacy rights. While we regret the decision of the incoming Attorney General to try to strip our family of these rights, we look forward to arguing the case before the federal court of appeals and have absolute confidence in our cause and our counsel. Out of respect to the court, we intend to continue to limit our public discussion of this case. We want to let the legal process run its course and for the focus to be on the important legal issues of this case. Those issues go beyond our family and, with this appeal, will now hopefully benefit families beyond Utah.

38 thoughts on “Incoming Utah Attorney General Announces That He Will Appeal Sister Wives Ruling

  1. “And who decides whether it’s a cult or a religion?”
    ~+~
    Cult is a new minor religion the majority finds objectionable. Unfortunately that is the de facto standard.

  2. firefly,

    I do agree that the establishment clause has been over played. The “evolution” in meaning from 1790 to 2013 amazes me. Historically governments have established religion, a single religion, excluding all others. Henry VIII established a religion that he could control, at least in part, to permit him to divorce. Funny how marriage as been at the roots of establishment from nearly the beginning, isn’t it. And even the Pilgrims established one faith for their settlement. It’s a way to keep society well ordered and disciplined.

    Now in the name of being anti-establishment, we argue that all sorts of things are religious. But where the Browns practice polygamy as a part of their faith and hale from a group of ancestors who pretty much did the same, I’d say that arguing on establishment grounds here is well justified.

  3. The Mormon Church has forbidden polygamy for quite a few years now, so the current polygamists are doing their thing outside the rules of the traditional, historic Mormon Church. The current polygamists have formed their own religious groups, and I would ask what determines if a group is part of a cult or a religion?

    Ten guys (or one hundred guys) get together and decide they’d like to have more “freedom” than their traditional church permits, so they form a “new religion.” Is that really a religion or just a bunch of guys who would like more “freedom”?

    I do not think our courts should be involved in picking “winners” and “losers” among religions or deciding that some religious groups can do certain things but other religious groups cannot.

    If we say any religious group can do whatever it wants in the name of “religious freedom,” how can we say flogging and/or stoning are not to be legalized? Certain Muslims believe their faith not only permits flogging and stoning but requires it. How can you say “yes” to one religious group and “no” to other religious groups if what they claim is not only permitted but is required by their religion?

    Our government and our courts should not be picking “winners” and “losers” among religions.

    That’s my point.

  4. firefly,

    I do not disagree with you. Here in the US we interpret “establishment’ to prohibit government from infringing on individuals’ rights to practice their faith as they choose. And we require some basis for deciding whether a particular topic is religious or is not. Since the 1830’s polygamy has been a part of some people’s religious practices, a very deep part. You do not necessarily see it as such. But then have you really studied it? I would bet not. Flogging and stoning are not religious practices, but rather are punishments meeted out for the failure of some to adhere to religious practices. And as you point out, in some locals, that punishment is mandated. But it is not a religious practice, per se.

  5. The Mormon Church officially terminated the practice of polygamy in 1890, so it has not been a part of accepted Mormon religious practice for more than 120 years.

    Stoning and flogging are as much a part of the religious faith and practice of some Muslims as excommunication is a part of Roman Catholic Church practice and faith. (A list of people excommunicated by the Roman Catholic Church can be found here: http://tinyurl.com/hdxfj) What is similar about those practices is that the religionists perform those functions because they feel their religious belief requires it.

    The Saudi Ambassador to London, Ghazi al-Qusaibi, says that stoning may seem irrational to the western mind, but it is “at the core of the Islamic faith.” http://tinyurl.com/kopqbtd

    The point is that our government and our courts should not be in the business of deciding what is actual religious practice and what is not.

  6. firefly,

    But from 1890 [and before] until now, a significant segment of those who accept much of the LDS faith have declined to follow that 1890 declaration and instead have rejected it. Following Martin Luther’s criticism of the workings of the Roman Catholic Church, today’s Lutherans reject much of what Catholics once practiced/taught. Following the criticisms of the 1890 declaration, some who tie themselves to LDS ideas decline to step in line and reject polygamy. So what’s the difference? Clearly the Browns characterized their life style as being religious marriage, not state sanctioned traditional marriage. 1843 to 2013, 170 years and the practice of polygamy by some who base it on faith is still religion.

    And thank you for recognizing that the majority of Muslims do not sanction flogging and stoning. Just remember that the Jewish zealot Saul, who became Paul, was first mentioned holding the coats of those who stoned Stephen to death.

  7. P.S. Saudis practice a form of Sunni Islam called Wahhabism, a modern day movement to return to what they view as former practices. Stoning and other parts of Shria Law, are not catching on very fast. Wahhabi thought starting about 200 years ago.

  8. But I agree that “our government and our courts should not be in the business of deciding what is actual religious practice and what is not.” But where we have an “establishment” clause, we have to take sides. And here deciding that people practice polygamy as a form of religion is clearly a “no brainer.” Would you do away with the establishment clause so that government did not have to take sides? Where so, establishing a religion is right around the corner. Just ask Henry the VIII !

  9. Ross 1, December 27, 2013 at 11:54 am

    Indeed.

    The recent two decisions in two seperate Federal District Courts also illustrate opposing results on the same facts.

    The federal district court in D.C. issued an injunction against the NSA while the federal district court of equal rank in New York said what NSA was doing is fine and not unconstitutional.

    Two appeals court will now look at those decisions, D.C. Circuit and 2nd Circuit, and may reach opposite positions as well.

    The Supremes will then decide whether mass spying on Americans without a 4th Amendment warrant is constitutional.

    The way I read the text of the Constitution is that this military NSA spying is the most blatant and largest violation of the 4th Amendment in history.

    But the Constitution says what the Supreme Court says it says, so we await their decision in due time.

  10. jqhiggins 1, December 27, 2013 at 11:18 am

    The rulings thuus far could be certified as “final” for direct appeal purposes under Rule 54 (b).
    ===========================
    The court wrote in its decision:

    Plaintiffs filed their Motion for Summary Judgment presenting detailed arguments on seven constitutional claims including due
    process, equal protection, free speech, free association, free exercise, the Establishment Clause, and 42 U.S.C. § 1983. (Dkt. No. 49.) [page 3]”

    The court does not at this time consider Plaintiffs’ claim under 42 U.S.C. § 1983. Accordingly, the court GRANTS IN PART Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant’s Cross Motion for Summary Judgment (Dkt. No. 55).

    The court also terminates as moot Plaintiffs’ Motion to Strike Defendant’s Cross-Motion for Summary Judgment. (Dkt. No. 60.)” [page 91]

    (MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, emphasis added). There is a straight-forward discussion of that rule, which is most often invoked by a motion from the losing party.

    That would apply to the state officials in this case, since JT is not going to appeal the favorable decision.

    There is risk to the state in asking for and in being granted a 54(b) certification:

    Frequently, parties wish to appeal from adverse rulings before the entire case has concluded, and Rule 54(b) provides a useful means of doing so where the adverse ruling decides a distinct claim that is sufficiently unrelated to the claims that remain pending in the case. But just as a properly entered Rule 54(b) order can provide a much-needed shortcut to appellate review, an improperly entered Rule 54(b) order may require the parties to waste time and incur large expenses pursuing an appeal that a federal appellate court may ultimately decide is not yet ready to be decided in the absence of a final judgment in the entire case.

    (A Look at Federal Rule of Civil Procedure 54(b), emphasis added). In this case the material facts involved in the unresolved § 1983 claim are the same as those involved in the now resolved constitutional violations claims.

    The district court has discretion to grant a Rule 54(b) motion, however, sometimes appellate courts do not agree with the district court and reverse the certified order then remand for further proceedings.

    My guess is that the state will wait for resolution of the remaining § 1983 claim, and perhaps even do more briefing this time in light of the court’s criticism:

    The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” (Pls.’ Reply Mot. Summ. J. 2 [Dkt. No. 71].) Finally, outside of the briefing schedule ordered by the court, Defendant filed a Reply (Dkt. No. 73) in which he, for the first time, provided academic discussion about “social harms” arising from religious cohabitation in Utah, though no admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013.

    [Footnote 1 goes on to say] “Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims.”

    (ibid, page 3 & fn. 1). It would be a mistake IMO for the defendants to hot trot up to the appellate level without having built a base of evidence as required by Rule 56 when defending against a motion for summary judgment.

    They would do better to brief the remaining claim so they don’t look bad on appeal.

  11. The Kody Brown family practice the Apostolic United Brethren faith, which has been around since the late 1800s.

    The Apostolic United Brethren (AUB) is a polygamous Mormon fundamentalist church within the Latter Day Saint movement. The AUB is not affiliated with The Church of Jesus Christ of Latter-day Saints (LDS Church).

    The AUB has about 7,000 to 10,000 members in the United States and Mexico.

    Muslims practice the Islamic faith. Nearly one quarter of the world’s population (about1.6 billion Muslims) follow the religion that was revealed to the Prophet Mohammed and subsequently transcribed into the Quran.

    So, merely in terms of how many members practice the Islamic faith or the Apostolic United Brethren faith, the Muslims certainly should win respect for their religion and its practices.

    In terms of how long a specific religion has existed, the Muslims’ Islamic faith (since the 600s) wins again over the Apostolic United Brethren faith (the late 1800s).

    So, we need to do a better job of understanding and respecting the tenets and practices of Muslims’ Islamic faith.

    One of the practices within Islam is the early marriage of girls, generally as early as puberty, although some Muslims allow younger girls (who have not reached puberty) to live with their husbands. The young girls generally have no say in the marriage, which is often arranged by their parents.

    Are you prepared to argue in American courts that we should allow the arranged “marriage” of prepubescent little girls to adult males? And, if not, why not?

    Flogging, stoning, polygamy and marriages of prepubescent little girls to adult males have all been around for a very long time. Our laws have permitted some of those practices but forbidden others. During the centuries, some groups have maintained that a specific practice is part of their religion; how do we determine which religious practice we will allow and which we won’t?

    Some Native-American Indian tribes maintain that the killing of bald eagles is part of their religious ritual and, recently, one state has permitted one tribe to kill two bald eagles for their ceremonies. Shouldn’t we permit every Native-American Indian tribe that wishes to to resume that ritual now that one court has allowed one tribe to do so?

  12. There is no proof on Earth regarding which, if any, religion is correct about God or Heaven or Hell; it is all a matter of FAITH.

    Therefore, I say again that we should tread carefully when we legislate or have judges decide which religions’ practices to respect and which religions’ practices to legislate or decide against.

    I believe there are other arguments than “religious freedom” to make in the Brown family case; perhaps Professor Turley is making those arguments (privacy, natural rights, etc,)

  13. firefly,

    Watch out. Fireflies are easily burned. And you are getting warm. The key is to understand the judicial process. When we have a generally if not quite universally accepted practice like monogamy coming up against an arguably religious practice like polygamy [and both Mormons and Muslims have practiced polygamy], the courts require a showing a harm to the general public by the religious practice. It was that failure to show harm which defeated Proposition 8 [same sex marriage] as well as the Brown case in Utah [and a week later in Utah, same sex marriage! An exciting week in the Beehive State!]

    Now, Professor Turley has explained how the case law supporting the 1873 [?] Utah case has changed over the ensuing years. Current new case law, when applied to polygamy could not defeat a religious practice, but could defeat any challenged to what some see as polygamy’s first cousin, bigamy. We can forbid taking out multiple marriage licenses, especially when the harm is keeping some of the spouses in the dark, but not taking on multiple wives who know very well what they are getting themselves into. The Brown wives live together in the same neighborhood and are sisters, genetic sisters. And to date, in no court of law has anyone opposing polygamy, or for that matter, same sex marriage, been able to show that either society at large, or the practitioners or their offspring in specific, have sustained any harm flowing from the relationships in question.

    I suggest you read the Proposition 8 trial decision [where the evidence was laughable] as well as the Brown decision [a trial court decision on cross motions for summary judgement where the facts were not disputed]. The attempts to show harm were laughable in not non-existent. The judicial decisions were quite easy to make. Once you’ve examined them, I speculate that your concerns will have evaporated.

  14. It matters not to me that the Browns choose to treat their relationships as spiritual or religious marriages. I say that because I believe that the paramount interest requiring protection is freedom of association.

  15. If I understand correctly Utah since at least 1898 doesn’t recognize common law marriages. The reason why they don’t is in the case of Kody Brown after a certain period of time all of Kody Brown’s wife’s would have become legally married to the same man Kody Brown based on a common law marriage. Thus Polygamous marriages would then have the same legal rights as any couple who have a marriage license.

    What is to prevent the state of Utah from enacting laws recognizing common law marriages but only in the case of two adults of legal consent? This would allow for same gender marriages and would allow the state to prosecute couples who enter into a second marriage with or without a marriage license while still “married” under state laws regulating legal or common law marriages to another person With such laws any couples who have entered into a common law marriage, spiritual marriage, or a marriage with a state issued license could be prosecuted for being married to more than one person at a time regardless if it is with a marriage license or is legally recognized common law marriage.

    They only reasons as I understand them laws against polygamous marriages were enacted by both Federal and State statutes is in the erroneous belief that such marriages were somehow barbaric and sinful according to Christian beliefs. Since polygamous life styles haven’t been show to be anymore “sinful” or “barbaric” Than any other type of marriage it seems only logical that the only laws we should have regulating marriages in this country is they must be between adults of legal age and consent and not between adults closely related to each other. “period” Nothing about the gender, race, religion, or number of adults that can be in a marriage. This would then be a legal system in which each individual would be guaranteed equal rights and protection under marriage laws.

  16. Any update on this case? It has been over seven months since they said they would appeal and the last I heard reported was they were only waiting to see what fees Jonathan Turley would be asking for.

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