This afternoon, the Brown family filed its appeal with the United States Supreme Court in the “Sister Wives” case. The case is Brown v. Buhman, No. 14-4117. As lead counsel for the Browns, I am joined on the petition by co-counsel Thomas Huff and we benefited from the input of our long-time co-counsel in Utah, Adam Alba. The petition asks the Court to resolve a longstanding conflict among the courts of appeals concerning the extent to which the government can strategically moot a constitutional challenge to a statute by announcing a new non-enforcement policy during the pendency of litigation. The petition is attached below.
Last April, 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 mootness grounds and did not address the merits of the constitutional violations committed in the case.
In 2014, United States District Court Judge Clark Waddoups handed down his final ruling in favor of the Browns on the last remaining count. Previously, Judge Waddoups handed down an historic ruling striking down key portions of the Utah polygamy law as unconstitutional.
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 Tenth Circuit did not reach any of the constitutional violations of religious freedom, equal protection, due process, or free speech. Instead, it ruled that the district court should have dismissed the case after Buhman announced, in the middle of litigation, that he no longer intended to prosecute the Browns and others similarly situated. Even though Buhman continued to defend the statute’s constitutionality, the panel said that it would not consider his timing and motives in issuing this new “policy” change, expressly concluding that “it does not matter [if] the prosecutor ruled out prosecution because he wished to prevent adjudication of the federal claim on the merits.” The panel acknowledged that a future County Attorney could change this policy at will, but ruled that this possibility too was insufficient to defeat mootness.
This case has now moved from the appellate court to the Supreme Court, 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 the Tenth Circuit 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 striking down the cohabitation language 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 of Judge Waddoups prevented was the targeting of plural families simply because of their consensual religious practices or relationships.
The writ petition points out that the Tenth Circuit applies a standard very different from other circuits in determining whether a case is moot due to “voluntary cessation.” It also challenges the Tenth Circuit’s practice of using a de novo standard of review to make its own findings of fact, which in this case allowed the panel to set aside several findings of fact that were not only established by Judge Waddoups, but virtually unchallenged by the government. These issues have divided the courts of appeals for many years now and warrant the Court’s review, according to the Brown petition.argues that the Tenth Circuit applied a standard different from other circuits in declaring the case moot due to “voluntary cessation.” It also challenges the decision of the Tenth Circuit to ignore the findings of fact that were not only established by Judge Waddoups but virtually unchallenged by the government. Those and other errors warrant review, according to the Brown petition.
This is a legal battle that began six years ago with the airing of the first episode of the Sister Wives and the announcement of a criminal investigation by Mr. Buhman. We have now reached the final stage in this long legal saga that has taken us from Salt Lake City to Denver to Washington, D.C. This has been a extended and difficult struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case. We will now wait for decision of our highest court.
Jonathan Turley
Lead Counsel for the Brown Family
Here is the Brown Petition: sisters-wives-petition
I feel the Brown Family went public with their plural marriage because of the money they are making. How many Americans can take their whole family to a vacation in Hawaii? For a family of 4 to fly and vacation in Hawaii its roughly eight thousand dollars. The Browns took everyone in their 4 familes to Hawaii. Like a total of 24 people! In the same year they took their whole family on a cruise to Alaska. They have multiple children in colleges and more are getting ready to go! A college education is very expensive for the normal family. I can’t imagine how much money college educations will cost for all those children. The Browns going public and doing their reality show, is just a way to make as much money as they possibly can. Its making Mr. Brown and his wives Rich! Do you ever see Mr. Brown working, or any of his wives? Do any of them have jobs? Do they work outside of the home?
In 2014, United States District Court Judge Clark Waddoups handed down his final ruling in favor of the Browns on the last remaining count. Previously, Judge Waddoups handed down an historic ruling striking down key portions of the Utah polygamy law as unconstitutional.
If you want to understand the conduct of the appellate judiciary, conjoin in your mind the pleasures of the adolescent vandal with social pretension (which adolescents aren’t bad at either).
In a more just world, Judge Waddups and the plaintiff’s attorneys would be stripped naked, coated with tar and feathers, and mailed to Argentina.
Oh my gosh, can you imagine if you were one of the 4 wives who worked, and the husband worked, but the other 3 wives stayed home to take care of the billion kids. And then you finally got tired of your husband having sex with other women in your house. If polygamy was legally recognized, you would have to pay child support and spousal support to the guy AND the other 3 women! You’d be trapped and unable to ever escape the situation, because you couldn’t afford the divorce.
Plus, statistically, plural marriage wouldn’t work for the whole of the population unless there were massive wars or some other reason why most of the men died off. Otherwise, with a distribution of approximately 50/50, you would have a few males gathering up all the females for themselves. Typically, these would be older more established males getting access to all the younger females.
This is why there were the Lost Boys of Yearning for Zion. The young men were kicked out so that they would not object to the fact that all the young women were being given to older men, who didn’t want to compete for mates with men the women might actually be attracted to.
But, again, as long as it’s voluntary, and there is no legal recognition with benefits, of polygamy, it’s none of my beeswax who people live and sleep with.
The 50/50 thing is pure myth. In nearly every society, males are born at slightly higher rates than females (due to gender selection and female infanticide), but females soon pull ahead and remain in the majority thereafter. In the US (source: US census data), depending on how one defines “marriageable age”, the ratio is roughly 53% female, 47% male. Under monogamy, millions of women are forbidden the benefits and protections of marriage, merely because they didn’t grab a husband before the pool was exhausted. Polygamy makes marriage available to them again. Yes, it comes at the price of sharing a husband, but shouldn’t that be a choice they get to make for themselves? Otherwise, we imply that we think women are too stupid to be allowed to choose their own husbands and home situations, and that society must step in and decide this for them. I prefer the assumption that women are smart enough to be trusted to act in their own best interest, even when I don’t always agree with the choices they make.
The Lost Boys problem deserves a closer look. Under monogamy, we have a large pool of women who cannot find husbands, because all the men are taken, and sharing is forbidden. However, nobody refers to this group as Lost Girls. In fact, monogamy guarantees you will have this large pool of unmarried females, and yet I never hear anyone saying we must ban monogamy because of it. Only under a system of “mostly monogamy with occasional polygamy”, wherein a small number of families take an extra wife, are we able to minimize both pools of unmarrieds.
The fact that certain groups encourage all their males to take extra wives is a separate problem. They can get away with it on a very small scale, because the surrounding society can absorb the excess males, but it isn’t sustainable on any kind of larger scale. But to be fair, once the Lost Boys move into the surrounding culture and encounter the Lost Girls, there is no shortage of women for them to marry.
People have the right of free association.
As long as polygamous relationships do not have the government benefits of legally recognized spouses, they can sleep with and live with whomever they want.
Studies have shown that polygamous wives are less happy than monogamous ones. That seems to make sense. If you actually loved your husband, who’d want to rotate him on a calendar with other women? Especially if it’s down the hall. 4 wives means each wife has 25% of the time with her husband, and even then he would be on the phone checking in with his other kids by all the other women.
I think the only time this would work is if you really didn’t care for the guy. If you just had friend feelings for him and wasn’t all that interested in him, or if you couldn’t stand him and felt some kind of relief when he was with other women.
I know the vast majority of men would be outraged, violently so, at the thought of 3 other guys living with them and having sex with his wife, on a schedule, down the hall.
If it’s not OK if your spouse does it, maybe, just possibly, it’s not OK if you do it. Golden Rule and all that.
Wow, the vitriol and misogyny runs deep here. Interestingly, unless I missed it, there hasn’t been reference to the rulings which opened up the legality of same sex marriage. SCOTUS ruled on the basis of one’s desires. Anyone with half a brain saw the handwriting on the wall. There are more than this case working their way through the judicial process. Right after the ruling, a Montana man (it gets cold up there) filed for the right to marry more than one woman…now, no sheep jokes here. Funny though, I don’t know of any woman seeking legal coverage for polygamy.
Note the derogatory words associated with such a female’s predilection but none for a man with several women. Hmm, seems like one man needs several women to take care of him. But, one woman can take care of herself.
As for Mark Twain, does anyone with any sense of ethics actually credit that male (in this case I refuse to call him a man) with a sense of decency? Although, he was a man of his time…a time which served very few of those who were female, non-Whites, and the outcome of Manifest Destiny.
Although, he was a man of his time…a time which served very few of those who were female, non-Whites, and the outcome of Manifest Destiny.
What’s wrong with the ‘outcome of Manifest Destiny’? A fictional Mexican sovereignty was converted to an actual American sovereignty. The territory was very sparsely populated – mostly by aboriginals who had scarcely any more affinity for the Mexicans than they did the Americans.
Not sure why you think it’s anything but stupid to view the lives of the 19th farm population through lenses lent to you by Betty Friedan and Gloria Steinem.
The federal government and even state level governments should not be involved with marriage period. The Brown’s aren’t hurting one or taking anyone’s stuff. Government has no business in a contract between consenting adults. I don’t like the notion of “plural marriages”, but that would be none of my business.
In the spring of 2015, my state decriminalized family marriages for the population of specific religious groups. Again, I don’t like the notion of marrying one’s uncle, but that would be none of my business.
Both are religious in origin and both have no victims.
….and the pearl clutching commences…..”oh but the children….”
Inbreeding is known to create lower IQ’s and violence. This is job security for those dependent of the public purse. There is no evidence that this is true with polygamy.
Still, that would be none of my business.
When Donald Trump is elected president this will not be a problem. People will be able to merry whoever they want to merry. Also, Donald will have the Mexicans build a wall between church and the Secretary of State, so that Hillary has to cure her new Moneya at Department of Health & Human Services. That will take a long time if the cure is in Donald’s tax returns. Bill can cure his bacon wherever. Just not the same place as Donald. Unless they have a parrot named Polly Andry
Be careful for what you wish, Mr. Brown.
Several years ago no one except the persons whom you knew personally cared one whit whether you had four common law wives or four hundred. Then you and yours agreed to move your lifestyle into the public realm via TV and the legal system.
You made your bed, now I hope you enjoy sleeping in it, even if it ends up being in prison. If someone promised you’d win this case, I suggest you check the warranty. Me thinks that promise is not worth the paper on which it’s not written.
If a mug shot is in the future for you and yours Mr. Brown, should we expect similar smirks?
I’ll change my opinion in favor of Brown the day Turley protests w/as much zeal as this case Obama’s extra-judicial Kill List (and enforcement of same at least twice, one of them 16 year old) and Obama’s Justice Department nullification of Banking Law endorsing those who perpetrated the 2008 Depression under which most Americans (not Turley) still suffer and shall for generations. (Americans now consider our current $600B/annual deficit “success.” If you divide Obama’s $10T debt increase by the number of jobs created the cost per job is in the millions not counting potential future increase in interest rates.)
This website publishing an image advertising a Cable TV Network is in poor taste, IMO.
http://s2.quickmeme.com/img/b7/b796e9b83d01bad317016db8c5cc7853c95a5e20fad84b999dd5275c5cb6741c.jpg
Maybe someone will get this marriage thing right.
Why is money considered protected speech but number of spouses based on one’s religion is not?
Do you realize how fked up that is?
Actually, Islam is more progressive than the polygamists. The Koran limits a man to four wives, although Allah recommends that he only have one. Brigham Young (AKA, “Bring ’em Young”) reportedly had 60 wives. Many polygamists in Utah have a dozen or so “”wives.”
Polygamy => Islam => Caliphate.
What could possibly go wrong?
KC have you ever heard of the term “Catastrophizing”?
Muslims aren’t the largest group in the US practicing PM. Neither are the FLDS, such as the Browns. It is urbanized African-Americans concentrated near Philadelphia. They just don’t attract the attention of the media the way other groups do.
As for what could possibly go wrong, how about nothing, except to get it out from the shadows and into the open, where we can handle any problems the same way we handle the problems of monogamy.
But the 10th Circuit has already made it clear we aren’t supposed to be dragging facts into this, so perhaps I should just stop now.
Quote from Roughing It, by Mark Twain:
“Our stay in Salt Lake City amounted to only two days, and therefore we had no time to make the customary inquisition into the workings of polygamy and get up the usual statistics and deductions preparatory to calling the attention of the nation at large once more to the matter.
I had the will to do it. With the gushing self-sufficiency of youth I was feverish to plunge in headlong and achieve a great reform here””until I saw the Mormon women. Then I was touched. My heart was wiser than my head. It warmed toward these poor, ungainly and pathetically “homely” creatures, and as I turned to hide the generous moisture in my eyes, I said, “”the man that marries one of them has done an act of Christian charity which entitles him to the kindly applause of mankind, not their harsh censure””and the man that marries sixty of them has done a deed of open-handed generosity so sublime that the nations should stand uncovered in his presence and worship in silence.”
That kind of thinking got US military trained contract killers.
But the bong down.
Your point is what? That a professional humorist mocked someone? (And wasn’t playful with the pieties of someone who could do him real damage?).
Just about the time that I despair of the judiciary, along comes a judge like Clark Waddoups who reminds us that there are a few good judges who uphold the constitution.
Reminds us how important this presidential election is.
Nice bit of deadpan.
I suggest that the readers of the blog look up Mark Twain’s nice description of Mormon husbands who married a collection of homely wives. It is in his book: Roughing It.
Marriage is a legal contract.
Marriage is a religious institution, usurped by government and manipulated into contractual law.
‘Marriage’ is a type of Incorporation.
Two (or more) persons come together to create the corporation. They are the Incorporators and Trustees of the corporation. They are also members of the corporation, so it is a member-type corporation (some corporations have no members). The Trustees sign the incorporation paper(s) (‘Marriage Certificate’, etc.). The Trustees can acquire and discharge assets (property, children, etc), and debts (mortgage, CC, etc), on behalf of the corporation. If the Trustees decide to, they can dissolve the corporation (divorce). A Prenuptial Agreement or other documents can dictate terms of the dissolution. Otherwise or in addition to, the Trustees can apply to the courts for relief and distribution of the corporation’s assets/debts. Some terms of the dissolution are already specified in state/federal laws or case law.
Prohibiting any one, or any number, of persons from forming a corporation, when no other persons face such limitation, is unequal treatment under law.
(PS. This should not necessarily be considered legal advice. I am not an attorney-at-law, but properly regarded as an attorney-in-fact)
The point of analogies is to explicate matters, not confuse them.
The supreme court already decided this case in Reynolds, right? The decision was based on the definition of religious freedom and the intent of it. The court looked into the writing of Jefferson/Madison and found where they defined it as existing in thought and belief, but not all actions. You can believe what you want, but you can’t act on that belief if it’s against civil law.
But civil law must have some justification, some expectation of harm it seeks to avoid or violation of rights it seeks to redress. It cannot ban an action simply because the majority find it distasteful, or because some believe it has a potential for harm.
Lacking an actual causal relation between PM and harm, the government’s ban is arbitrary.