I regret to report that a few minutes ago, the United States Supreme Court denied the petition for review filed in the “Sister Wives” case. The case is Brown v. Buhman, No. 14-4117. As lead counsel for the Browns, I was joined on the petition by co-counsel Thomas Huff and Adam Alba. My prior assistants, including my current assistant Seth Tate, and law students worked countless hours into many late nights to maintain this litigation. We are greatly in their debt for their pro bono work on this case. The attorneys and law students who worked on this case came from different religions and held different values. Many disagreed morally with plural families. However, we all believed strongly that every family has a fundamental right to follow their own faiths so long as they did not harm others. We all believed that the Browns were denied those rights when they are singled out for public condemnation and criminal investigation due entirely to their public support for plural marriage. It is particularly difficult to prevail on the merits in establishing constitutional violations only to be reversed on standing issues on appeal. However, our victory in Salt Lake City will remain as a cautionary decision for legislators who wish to marginalize or sanction this community in the future.
I also wanted to extend my deepest gratitude and respect to the Brown family which allowed us to represent them in this historic action. The Browns remained steadfast in their commitment to equal rights and have become the voice for not just plural families but many families which do not meet the strict definition of monogamy practiced by the majority of citizens. The Browns have kept their show and this litigation largely separate to allow the courts to fully consider the merits of our case without interference or aggrandizement. They continue to have faith in our country and our legal system despite this decision. More importantly, they have faith in the right of all families to enjoy the protections of our Constitution and will continue to fight to make that promise a reality for plural families throughout the country.
The petition asked 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. 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.
The team is obviously disappointed by the denial but not surprised. It is often difficult to secure review with the Supreme Court and those odds have gotten worse during the period with only eight members (due to the passing of Associate Justice Antonin Scalia). The decision will obviously not end the struggle for equal protection and due process under the law. The Browns have remained committed to that cause and will continue to advocate on behalf of religious freedom and plural families.
The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing on the trial level in this case. Judge Waddoups’ opinion remains a passionate and profound defense of religious liberty in this country.
This is a legal battle that began seven years ago with the airing of the first episode of the Sister Wives and the announcement of a criminal investigation by Mr. Buhman. It has been a long road for all of us and it is not the end of the road. Plural and unconventional families will continue to strive for equal status and treatment under the law. They will continue to seek the promise that led to the formation of this Republic: the right of every family to live according to their own faith and values. The refusal of the Supreme Court to hear their case will not make tens of thousands of families disappear or resolve the underlying claims of discrimination and harassment. These families will remain (as will their demand for freedom of religion and equal protection). All civil rights movements have faced such disappointments and setbacks. Yet, having just celebrated Martin Luther King Day, it is important to consider his assurance that “The arc of the moral universe is long, but it bends towards justice.”
Lead Counsel for the Brown Family