ad611-sister-wives-season-4This afternoon, the United States Court of Appeals for the Tenth Circuit issued its decision in Brown v. Buhman, No. 14-4117, reversing the decision striking down the cohabitation provision of the Utah polygamy law. The opinion of the panel is attached below. The panel ruled entirely on standing grounds and did not address the merits of the constitutional violations committed in the case. As lead counsel in the case, I have been going over the opinion with our team including our local counsel, Adam Alba, as well as the Brown family. We respectfully disagree with the panel on its interpretation of the governing law and we will appeal the decision.

In 2014, United States District Court Judge Clark Waddoups handed down his final ruling in favor of my clients 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.

The panel did not reach any of the constitutional violations. Instead, it ruled that the district court should have dismissed the case after Buhman changed his policy and said that he had no further intention to prosecute the Browns.

Notably, in his appeal, Buhman did not challenge the facts or holdings in the prior standing and mootness decisions. Buhman did not contest that the appellate panel should reach the merits of the decision below and did not claim that the case was moot. He also did not challenge the factual findings below. He did not challenge prosecutors targeted the Brown family after their public discussions of their cohabitation, including television interviews and university presentations. Defense counsel admitted to “endless” condemnations by the Attorney General of polygamists and express public condemnations of plural family members as “criminals.” Buhman admitted that the law is a “means” to make it easier to investigate and perform searches or seizures on plural families (while other families do not face the same risk). It was also uncontested that the Brown family “fled from Utah to Nevada for fear that they would be criminally prosecuted for practicing bigamy.” The lower court found that past prosecutions discredited assertions that no “credible threat of prosecution exists.” Judge Waddoups also found that “Utah County expressly declined to disavow that Plaintiffs may be prosecuted for bigamy” during most of the pendency of the trial proceedings. The court found that Buhman’s belated issuance of a new “policy” only was made after losing key motions in court and facing a final decision. The trial court refused to yield to such a tactical move and questioned both the existence of a real policy and the guarantee that the Browns would not be prosecuted.

The panel said that it would not consider the motivation of Buhman in issuing his “policy” change and said that the trial must effectively take it on face value. It also said that it was not convinced that the Browns wanted or intended to return to Utah despite various uncontested and sworn declarations to that fact. Indeed, the Browns have never sold their home in Utah (over the course of this litigation) in the hope of returning to the state without the fear of prosecution or harassment.

The panel also rejected the factors used in prior cases that were relied upon by both the lower court and the Brown family. Specifically, the Browns argued that the so-called “Winsness factors” had been applied by the Tenth Circuit to reject the same type of mootness claims in prior cases. While acknowledging that it had cited and relied on these factors in rejecting past mootness claims, the panel ruled that it would not consider those factors as controlling in this case.

The Brown family is obviously disappointed in the ruling but remains committed to this fight for the protections of religion, speech, and privacy in Utah. They respect the panel’s consideration of the appeal and the review process afforded their case.

We respectfully disagree with the decision, which in our view departs from prior rulings on standing and mootness. We have the option of seeking the review of the entire Tenth Circuit or filing directly with the Supreme Court. We also have the ability to seek a rehearing from the panel. We will be exploring those options in the coming days. However, it is our intention to appeal the decision of the panel. While we respect the panel and its lengthy analysis, we believe that the opinion rests on a flawed understanding of both the facts and governing law in this case, including controlling Supreme Court cases.

This case will now go forward as both sides anticipated. The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case. Equally important is the right for plural families to be heard in federal court, a right sharply curtailed by this decision. Utah is a state that was founded by courageous citizens seeking these very protections from government abuse and religious inequality. This lawsuit is true to the original dream of those seeking freedom in Utah. As Judge Waddoups noted, the lower court decision put Utah in the same position of other states. It allowed the state to prosecute those claiming multiple marriage licenses and did not diminish the state’s ability to prosecute cases of abuse. What the decision prevented was the targeting of plural families simply because of their consensual religious practices or relationships.

This has been a long struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case. The decision today only deepens their resolve to fight for those same rights. It will be an honor to continue this fight with the Brown family in seeking the recognition of equal religious and speech rights for all families in Utah.

Jonathan Turley
Lead Counsel for the Brown Family

Documents of the panel’s decision: Brown Judgment and Brown Opinion


  1. BTW, where are all the moralists who were slamming Hillary the other day for defending a rapist when she was a 27 year-old court appointed assistant public defender? You notice they don’t have the same outrage about JT voluntarily representing a polygamist. Apparently representing that kind of immorality is okay. Hmmmmm, kind of makes me think that the high and mighty HC attacks were nothing more than cheap politics.

  2. Gary t….obugerfell can probably be contained…what they wanted was equal rights…and no state offered marriage to more than one plus one. The thing is the “benifits” allegedly that the state’s provide spouses. Not the coming home to an empty house. In a man’s monogomous lifetime he can have about 17 kids that qualify for benifits like ebt or chip….at one time. Five wives makes about a hundred. I don’t think as joe taxpayer i should have to support his “religion”. Sure this family with their tv deal might be self sufficient….but all pologomy isnt. And even other benificiaries aren’ t suppose to play the system married or not. So when the single mom of two shacks up her “household income” is suppose to include all ppl in the house. Hence the aca has disqualified ppl from a subsidy bc 25 yo tommy in the basement might have a job.
    Marriage meant one thing…we got where we are because of tax code and welfare. And optional use of wills and trusts. All the “benifits” of a spouse. These ppl should be no more afraid of a raid than other shaked up households. They could have taken the fifth not applying for multiple lisense…or going on tv. Simply put society doesn’t need to affirmatively endorse their life style. There is a reason on all the gang and drug tv shows….ppl hide their identity.

  3. Some dog was on the blog here arguing about this case and “standing” and later related that one dog had married a human and that the case was going to be a court case about the right of a dog to marry a human or vice versa. Four legs good, two legs bad! was his mantra. Standing. I have read the opinion here and wonder about “standing”. We need to discuss this more– not some dogs but the friggin Mormons et al.

  4. Just askin’.

    What’s the difference between marriage, serial marriage, cohabitation, serial cohabitation. frIends with benefits. one night stands and a time with an escort?

    6 are legal..

  5. Were it just a case of consenting adults, and I do mean adults, this wouldn’t be much of a slope, slippery or otherwise. The problem is that the history of these Mormons and other radical cults like them, is that they are into child brides (i.e. rape), cheating the welfare and food stamp systems, kicking young men out of the community to leave more child brides for the elder men and so on. I don’t know how you would go about separating these things so that the consenting adults could do as they please without dragging all their abusive behaviors into it.

    As for the pedophile and bestiality posters, you’ll have to try another tack. It’s still about consent, and little kids and donkeys and toasters can’t consent. Please go try somewhere else.

  6. why are a very small minority of sexually deviant people dominating news the last few weeks? I don’t care what they do behind their closed doors, but I do not want to hear about it. short of abusing children, do what you want, but don’t parade your perversions.

  7. There is a case pending in NY state, I believe, where a dyke sought permission to marry multiple women as her “wives.” I hope if JT’s case goes to the SCOTUS, that the cases are combined. It should make for an entertaining freak show.

  8. The Tenth Circuit decided the the lower court should never have taken the case because the Browns lacked standing to sue since the prosecutor had not indicted them and the likelihood of prosecution was too remote to give them standing. The Tenth Circuit appeared to ignore the “chilling effect” of the statute. It vacated the lower court decision, restoring the status quo prior to the lawsuit. Judge Waddoup’s original decision has no precedential value in law, but his logic was legally correct: under the First Amendment, individuals have a right to cohabit as they wish if they do not infringe upon the rights of others. That principle is well established in law and has application far beyond the consensual practice of polygamy, and the consensual practice of plural marriage has application far beyond the borders of Utah. If the Browns appeal and if they can convince the US Supreme Court that they have standing since the law is likely to be applied to them, it is likely, given the logic of Obergefell v Hodges (the gay marriage case), that the Utah statute will be found unconstitutional. Even non-polygamists ought to applaud the principle that the State has no business criminalizing consensual cohabitations, in any form. The 10th Circuit decision is not going to make the legal issue go away.

  9. Thinking strategically…

    If UT had lost, the state might not have appealed, and the decision would only apply to the 10th circuit. But because the Browns lost, they can choose to appeal to the Supreme Court, and thus have a chance to have the law struck nationwide.

  10. So the Browns who parade their kids out on T.V. want the right to privacy. They want free speech but they have been less than honest about the sex abuse/incest allegations in the AUB CULT they hark from.For pete’s sake their own prophet is one of the accused.I watched “Sisterwives food stamps to fame” on youtube and see they think society has the right to fund their brood.All rights but no responsibility.

  11. Maybe the Al Swearingen method of dealing w/ crooked lawyers in Deadwood.

  12. Prosecutors too often abuse their position.

    We need an effective means to sanction abusive prosecutors.

  13. Can`t they just live together without the “legal”written binders  — or have  the courts stopped cohabitation also? Jim Kuden

    From: JONATHAN TURLEY To: jimkuden@sbcglobal.net Sent: Monday, April 11, 2016 10:39 AM Subject: [New post] TENTH CIRCUIT REVERSES SISTER WIVES DECISION #yiv6816441012 a:hover {color:red;}#yiv6816441012 a {text-decoration:none;color:#0088cc;}#yiv6816441012 a.yiv6816441012primaryactionlink:link, #yiv6816441012 a.yiv6816441012primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv6816441012 a.yiv6816441012primaryactionlink:hover, #yiv6816441012 a.yiv6816441012primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv6816441012 WordPress.com | jonathanturley posted: “This afternoon, the United States Court of Appeals for the Tenth Circuit issued its decision in Brown v. Buhman, No. 14-4117, reversing the decision striking down the cohabitation provision of the Utah polygamy law. The opinion of the panel is attached b” | |

  14. Good luck. I could think of few attorneys I would want fighting for me other than JT.

  15. I agree with Joseph Jones and Tin, once the SCOTUS ruled that equal protection demanded that same sex couples be allowed the equal rights to marry, this country hit a slippery slope where any sort of abberant, degenerate behavior in the eyes of those who would curtail freedom of association, could not be illegally prohibited or subject to discrimination.

    Now that Supreme Court decision is in place, there no reason to infringe upon other adults; voluntary decision to cohabit with each other, guaranteed by the Constitutionally protected right to associate with anyone else, association including the right to cohabit with anyone you want to without government interference.

  16. The fact you think two men marrying to be morally above a man with multiple wives shows your level of indoctrination.

    It’s okay for little Jimmy to have two dads, or two moms, but not a dad and two moms?

  17. The Browns are concerned about their privacy? After hosting a t.v. show touting their creepy lifestyle? I would have paid good money to see Antonin Scalia shred JT on that half-baked argument!

  18. Agree with Joseph J……Since SCOTUS says it’s perfectly normal for two men to be “man and wife,” this country hit a slippery slope where any sort of abberant, degenerate behavior is okay. Today it’s multiple spouses, tomorrow it will be some illegal wanting to marry her donkey.

  19. Once SCOTUS mandated marriage means whatever they say it means, it seemed only a matter of time before polygamy becomes as legal as homosexual nuptials.

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