Late Monday, the Brown family filed their appeal in the United States Court of Appeals for the Tenth Circuit in Brown v. Buhman, No. 14-4117. The Sisters Wives case raises core issues of free speech and free exercise — constitutional violations found by the trial court in striking down the Utah cohabitation law. This “en banc” petition is to the entire Tenth Circuit in seeking review of the recent panel decision vacating the earlier decision on standing grounds.
The petition below raises conflicts in controlling case law and the panel decision on the standard for mootness in pre-enforcement cases. The petition also challenges the panel’s rejections of factual findings made by the trial court, including facts that were not contested by the state.
While we remain hopeful of a review of the entire court, we stand committed to continuing this long fight for free speech and the free exercise of religion. As we have previously maintained, these rights too great to abandon after prevailing below in this case. Moreover, this appeal fights for the right for plural families to be heard in federal court, a right sharply curtailed by this decision.
The filing below states:
The panel ruling is chilling in its implications for families abused by unconstitutional laws and actions. It means that a family can be targeted by a prosecutor for years and publicly denounced as felons under state law for their consensual private relationships. The family can suffer professional and social injuries that are not contested by the defendant. The family can relocate across the border to escape such harassment and targeting while maintaining their Utah home and their religious and family commitments in Utah. Yet, according to the panel, none of those injuries warrant a review of the merits of their claims in a federal court. To use standing law to extinguish such constitutional claims (including at least one major violation already conceded by the defendant) is to decouple the doctrine from its original purposes in our system. This is particularly the case where core free amendment rights have been abridged and a prosecutor has expressly maintains the law is both constitutional and essential for future investigations. If the panel decision stands, this Circuit will become a minority jurisdiction of one and will insulate knowing, unconstitutional acts from judicial review.
If the court declines to rehear the case, the Browns are committed to pursuing the case to the Supreme Court. However, we believe that the Tenth Circuit should consider the important issues in this case as a whole before any further appeal is taken.
I want to thank our local counsel Adam Alba as well as Thomas Huff for their excellent work on the petition.
Lead Counsel for the Brown Family
Here is the filing: Brown.Rehearing.Brief.Master.Final