FEDERAL COURT RULES STATE OFFICIALS VIOLATED THE CONSTITUTIONAL RIGHTS OF THE BROWN FAMILY IN THE SISTER WIVES CASE

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It is with a great pleasure this evening that I can announce the final decision of United States District Court Judge Clarke Waddoups on the last remaining count in the Sister Wives case. Previously, Judge Waddoups handed down an historic ruling striking down key portions of the Utah polygamy law as unconstitutional. Only one count remained: the Section 1983 claim that state officials (notably prosecutor Jeffrey R. Buhman) violated the constitutional rights of the Brown family in years of criminal investigation and public accusations. This was a difficult legal question that Judge Waddoups asked for additional briefing and a hearing to address. He has now ruled for the Browns in what is now a clear sweep on all counts. I want to thank my friend and local counsel (and GW Alum) Adam Alba and all of the students who have worked so hard on this case over the years. I also want to thank the Browns for their courage and commitment in this case. It has been a great honor to serve (and continue to serve) as lead counsel in this case for the Brown family. Given the prior announcement that the Attorney General would appeal the case, we are prepared to defend this and the prior ruling in Denver, Colorado before the United States Court of Appeals for the Tenth Circuit.

The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. With the earlier decision, families like the Browns can now be both plural and legal in the state of Utah.  The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause.   The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists.

On December 13, 2013, the court technically granted in part Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and denied Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 55). The court left the last count in our complaint under 42 U.S.C. § 1983. This count sought to establish that state officials, and particularly Mr. Buhman, acted to deny protected constitutional rights ranging from free speech to free exercise to equal protection. The Utah Attorney General and his staff opposed the claim in the supplemental hearing and briefing. While the State claimed that we failed to make an adequate showing for Section 1983 liability, the Court found that we properly argued the count and that we are entitled to full recovery under the federal law, including attorneys fee and costs.

42 U.S.C. § 1983 (2006) states in relevant part that:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

On behalf of the Brown family and the legal team, I must thank Judge Waddoups who has shown incredible fairness and integrity throughout this case. His decision in this case required a singular act of courage and principle as the first court to strike down the criminalization of polygamy. In doing so, Judge Waddoups reaffirmed the independence of our courts and stood against open prejudice and hostility toward plural families.

In his first announcement after becoming Utah Attorney General, Sean Reyes pledged to appeal the earlier ruling. However, no appeal could be taken pending the final resolution of the Section 1983 count. Judge Waddoups ruled that this is indeed the final ruling in favor of the Browns:

JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Utah Code Ann. § 76-7-101 (2013) is facially unconstitutional in that the phrase “or cohabits with another person” is a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and is without a rational basis under the Due Process Clause of the Fourteenth Amendment; to preserve the integrity of the Statute, as enacted by the Utah State Legislature, the Court hereby severs the phrase “or cohabits with another person” from Utah Code § 76-7-101(1); . . . it is further

ORDERED, ADJUDGED, AND DECREED that the Plaintiffs, as prevailing parties in an action for enforcement of civil rights under 42 U.S.C. § 1983, are entitled to an award of attorney’s fees, costs, and expenses incurred in this action under 42 U.S.C. § 1988 upon further and proper application.

SO ORDERED this 27th day of August, 2014.

The state will now have to file a notice of appeal if it still intends to appeal this matter to the United States Court of Appeals for the Tenth Circuit. 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. This final judgment does precisely that.

It is my sincere hope that Attorney General Reyes will reconsider his position and see the wisdom in Judge Waddoups’ decision. After this decision, abuse of spouses and children will continue to be prosecuted regardless of whether they occur in monogamous or polygamous families. These protective services will only be strengthened now that many families can openly integrate into society and not fear prosecution merely because of their family structure. What remains of the statute was narrowly construed by the Court to limit future prosecutions to traditional bigamy, i.e. individuals with multiple marriage licenses. Neither the Attorney General nor the state of Utah should fight a ruling that reaffirmed freedom of religion and equal protection. Utah is a state that was founded by citizens seeking those very rights against government abuse. Utah is better place because of the courageous decision of Judge Waddoups and the commitment of the Brown family in defense of our Constitution.

This has been a long struggle, and this may not be the end of that struggle, but it is a great day not just for the Browns, but for everyone in Utah who believe in the rule of law.

Jonathan Turley

Lead Counsel

Here is the opinion: Memorandum Decision and Judgment

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

The entire Brown family is gratified and thankful for this final ruling from Judge Waddoups. The decision brings closure for our family and further reaffirms the right of all families to be free from government abuse. While we know that many people do not approve of plural families, it is our family and based on our religious beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs. We hope that Attorney General Reyes will see this as a victory of us all in defending the freedom of religion and other rights in our precious Constitution. We want to particularly thank our lead counsel Professor Jonathan Turley who represented us through the criminal investigation and then led the fight against this law to reach this historic decision. We also want to thank the team of lawyers and students from George Washington, including our local counsel Adam Alba. We are so honored and blessed to have been able to serve as the vehicle for this milestone ruling. Professor Turley has pledged to defend this decision on appeal and we are equally committed to fight to preserve this now final and complete victory.

57 thoughts on “FEDERAL COURT RULES STATE OFFICIALS VIOLATED THE CONSTITUTIONAL RIGHTS OF THE BROWN FAMILY IN THE SISTER WIVES CASE

  1. There are many legal blogs by law professors. One of the aspects of this blog is that you work cases. You have real world experience. That is what is important. Your real world experience is a big bonus to your students and us. Complimenti!

  2. Looks good. What exactly in laymen’s terms does it mean? Do I understand that a man cohabiting with more than one woman in a household, even if only married to one or none, was previously being criminalized? (and now cannot be)

  3. The cohabitation law was a bad way to make polygamy illegal. But, making polygamy,or polyandry legal is not a good thing and will play heck with domestic relations law if applied to other states. For example, what happens if Mr. Brown dies, then the Brown sister wives hit 65 and are ready to draw social security? Do they get their husband’s social security, each and every one of them, or do they have to split it? How would you draft a QUADRO if one of the wives want’s to divorce? What if one or more of the wives wants some extra husbands??? What if Mr. Brown and one of the wives divorce? Is the whole polygamous marriage also dissolved? Or, if it just applies to one of the sister wives, how do you figure child support?

    Perhaps, we can go back in history and expand marriages to include some more outdated stuff, like concubinage?

    Squeeky Fromm
    Girl Reporter

  4. Nice job. This dog is going to pull up the opinion off the tab here and also get the briefs off of Pacer. We dogs can give some guidance in the notion of seven wives. To me six is enough. itchinBay dog here at the marina may be in disagreement with the decision.

  5. Congratulations on the win.

    Squeeky, I don’t see the difficulty. There is only one marriage license, or none. Most of the what-if aspects of the relationships can be worked out by contracts. If there is a marriage license, there is only one, there can be only one divorce, one SS check, etc. It allows consenting adults to determine their own relationships. Someone other than the traditionally married couple “divorces” by leaving the relationship. For child custody and child support there are still biological parents and standing law to help determine what’s in the best interest of the child. It’s kind of like two people just living together, only it’s more than two and they have formalized their relationship without marriage.

  6. Congratulations and keep fighting the good fight Professor Turley! It’s legal freedom fighters like you who work tirelessly against the continual overreach at all levels of government to keep our country running a little bit closer to the dream and vision of the Founding Fathers.

  7. Congratulations, Prof. Turley, on a job well done and an excellent outcome for your clients. There is nothing more rewarding as an attorney than achieving their client’s objective(s) ( in a way that cuts square corners). Especially when the position you take in the litigation is not the most popular position amongst society. Sometimes achieving your client’s objective requires you to litigate to a final judicial resolution of the case, unfortunately.

    Having to litigate a case to its conclusion is rare. Litigating as case to its conclusion and winning all issues which could have gone either way is even more rare, and worthy of a curtain call. Especially litigating against the government. I understand from personal experience all too well the unique aspects of litigating against the government.

    So take a bow, have a cold beer, get a good night’s rest, and take another bow tomorrow. Hopefully they will have second thoughts about an appeal.

  8. Congrats Professor. I have a feeling this isn’t the end. There are many people with short, very short, attention spans.

  9. @ Squeeky Your said: “For example, what happens if Mr. Brown dies, then the Brown sister wives hit 65 and are ready to draw social security? Do they get their husband’s social security, each and every one of them, or do they have to split it? ”

    This situation already exists in the social security system with serial wives. I suppose it could be husbands too. If the EX-wife(s) were married for more than 10 years, even though there are other current and ex wives can also collect if the marriage was of similar duration…AND the ex wives didn’t get married again.

    http://www.socialsecurity.gov/policy/docs/ssb/v67n4/67n4p1.pdf

    So theoretically, some guy who had a good income, and a nice lifespan, could be married to three or even four women over his lifetime, divorce them all and they ALL get to collect his social security benefits for the rest of their lives. Just don’t get married again. Talk about double/triple/quadruple dipping:-)

    I have no problem with plural marriages. More than one wife at a time…More than one husband at a time. Who cares? When I was working, I would maybe appreciate a wife too. If gays can legally marry, then why can’t any one of any configuration have a legal marriage relationship? We opened that barn door some time ago.

    What I DO have an issue with is double dipping from the benefit system, be it Social Security or the Welfare/Food stamp programs. If you are a plural marriage you get only ONE dip at the trough. One marriage…one set of benefits. Don’t be double dipping into my tax pocket!

  10. Congratulations for you and the Brown family.

    As long as we only give government benefits for one spouse, it’s not any of our business how people live. I agree that I would not want government benefits supporting polygamy, but other than that, government should stay out of private lives.

    I don’t agree with their lifestyle, but I’ve seen several episodes. The Brown family seem very nice and close knit.

  11. DBQ, As I understand it, the laws about bigamy are still valid, so there is only one traditional marriage, so only one person is eligible for SS benefits as a widow.

    A divorced spouse can collect after remarriage, but only if the remarriage is after age 60. However, a divorced spouse who was a stay-at-home mom and didn’t work outside the house enough to be eligible on her own, gets no SS benefits until her former spouse dies. One reason she may end up getting medicaid, food stamps, and other forms of welfare.

  12. For those of you who may read this far in the future when such rights are obvious and rarely discussed, please understand that it was efforts and moments like this that made your world the far better place that we wanted to live in. Be well.

  13. From a Biblical point of view, this is actually MORE consevative than the “one man, one woman” argument used to discriminate against same-sex marriage. So now so-called conservatives complain it’s too conservative?

  14. DBQ, You are a font of economic knowledge. I didn’t know the social security info on serial wives. That needs to change.

  15. Dust Bunny Queen wrote: “If gays can legally marry, then why can’t any one of any configuration have a legal marriage relationship? We opened that barn door some time ago.”

    Logically stated, which is exactly why the barn door on gay marriage needs to be shut. It is a return to barbarism. Traditional marriage based upon gender diversity is the proper foundation for civilized society.

  16. Barbarism would be what ISIS is doing. I don’t quite see how plural marriage and gay marriage rises to the term of barbarism.

  17. squeeky – the same legal thinking that made same sex marriage legal in several states will make plural marriages legal.

  18. @ bettykath

    DId you “read” the link. I didn’t think so.

    Here; “Divorcees may be
    eligible for a divorced spouse benefit based on their
    previous spouse’s lifetime earnings provided that they
    had a 10-year (120
    months) marriage. If a woman
    qualifies for benefits based on her own work record
    and her spouse’s work record, she will receive the
    higher amount of the two (her own PIA or 50
    percent
    of her husband’s PIA). Qualifying spouse beneficiaries
    must be married to the retiring spouse for at least one
    continuous year prior to applying for benefits, with
    certain exceptions.”

    So…… a divorced spouse can collect on her ex-husband’s Social Security. So can the existing married spouse or widowed spouse. If a person marries young, does well in life, has multiple divorced ex-spouses and the person (man or woman) has the higher SS payout (at 50%) there can be multiple people collecting on ONE person’s benefit. This was written when men usually worked and women were mostly if not completely stay at home with no significant SS benefits accrued. It was meant to protect the occasional divorced women who would be destitute without it. Note the rule says spouse….not wife….so I am pretty sure that the same double dipping would apply to male spouses. No wonder the system is unsustainable.

    Of course the unexpected consequences of longer lives, higher frequency of divorce were never foreseen. Unexpected consequences are never foreseen because people just don’t bother to look or think about them. This is the same issue with the economic ramifications of plural marriages on society and the benefit and welfare structure that we have. Unforeseen!!!

  19. Would this work? It has probably already been done, but the way all the wives can collect SS is for the husband to swap the legal wife, through divorce, every 10 years. In other words, the legal wife becomes a sister wife, and another sister wife becomes a legal wife, every 10 years, and so on. After four decades, each wife qualifies for the husband’s SS. He would probably qualify for the maximum SS, which I think is around $24,000 annually. Assuming they are all the same age, when they turn 65, the family’s SS income is almost 125,000 dollars annually (assuming 4 wives). It would be interesting to see the SS stats on individuals already double, triple, and quadruple dipping on a single breadwinner’s SS

  20. […] our family and further reaffirms the right of all families to be free from government abuse,” Brown said in a statement on his lawyer’s website. “While we know that many people do not approve of plural families, it is our family and based on […]

  21. Dust Bunny Queen, “@ bettykath, DId you “read” the link. I didn’t think so.”

    It’s not necessary to be condescending. My sister and I both recently went through the process of getting SS based on deceased husband (my sister) and deceased former husband (me). I did check out the link and noticed it was the same as the brochure SS sent me when it sent me notification of its review of my application.

    I was pointing out that a divorcee can get SS based on a former spouse even if remarried, IF the remarriage happened after age 60. A minor point that you overlooked.

    Since you seemed to be suggesting that all of the sister wives would be eligible for his SS benefits, I pointed out that only one of the women was married to him according the rules of the IRS. The others are co-inhibitors. As Samantha points out, if the sister wives take turns, with each spending 10 years as the legal spouse, then a divorcee, each of them would qualify for SS benefits at his death.

  22. When did God ( as you believe God to be) die & leave all these self righteous people in charge? Like gay people, there born with a over abundance of the opposite hormone & that’s why their attracted to their own gender. What about babies that are born with a penis and also a vagina????. look at how they crucify them. LIVE & LET LIVE. Remember what they used to believe and say about Black people & Women. Mind your own damn business & help each other. Why don’t all you GOODIE TWO SHOES stop pornography. DEMAND they take it out of public view so our kids DON’T have to look at this denigration. Take a stand against the stuff that matters not who is sleeping with who… How many of you Men & Women are out breaking there marriage vows & & in bed with someones eases spouse. Is that the same as polygamy??? Is that A MARRIAGE IS BETWEEN ONE MAN & ONE WOMAN, WHILE YOUR CHEATING WITH AS MANY PEOPLE AS YOU CAN DROP YOUR DRAWERS FOR???? Quit being holier then thou, There not fighting, breaking the law, stealing, cheating, killing others, There choosing this life because they feel it’s right for them. They take care of each other, communicate & seem to have a good life. Do you see there kids in jail, pregnent, or living in the streets experiencing theose horrors. Nothing is perfect. Stop the drugs, drunk driving, throwing babies in dumpsters. Help each other & the earth. Maryalyce Sager

  23. They believe their rights were violated , well, what about them taking advantage if the very government they are accusing of that by claiming welfare benefits and food stams fraudulently. The “wives” were claiming to be single parents while at the same time fighting to make their living situation legal. Hypocritical to say the least. They basically proved you can in fact have your cake and eat it too. Scammers!!!!!

  24. Polygamy does result in people & I have no problem with polygamy per se though I do think marriage should be between 1 man & 1 woman only as it relates to what the law should recognize. But if a man wants to live with let’s say 4 women & father children with all of them & all of them know what they are doing & are willing, then I have no problem with it though I wouldn’t legally recognize that as marriage. Polygamous or polyamorous relationships can create problems with jealousy, taking care of kids, etc. but I have no problem with polygamy per se since that results in people. Of course if a man has an affair with a woman while married or makes love to 2 or more women, then the man would be doing a polyamorous relationship.

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