Appeals court reverses decision striking down part of Utah polygamy law

I’d thought that the case of the Brown family polygamy trials in Utah was well in our rear view mirror, but some appeals have been making their way through the courts and at least one portion of the original law is back up for debate yet again. You may recall the case from two years ago, when the stars of the reality show Sister Wives were charged on various counts under laws dealing with bigamy and polygamy. They eventually prevailed in court (mostly) with the court finding that one section of the law in particular – dealing with the group living together and calling each of the women wives while Mr. Brown was only technically married to one of them – was unconstitutional.


The case was taken to the next level and this week the 10th Circuit Court reversed that portion of the decision, though not on the grounds of declaring the law constitutional. The family’s attorney, Jonathan Turley, explains in detail.

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 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.

That article is very long, dry and full of legalese as one might expect from an attorney. As such, it can be hard to follow. The bottom line here is that the court vacated one portion of the decision based on the assumption that the Browns were no longer in any danger of being prosecuted because the prosecutor had changed the local policy. Politico explains it a bit better for the layman.

Some legal experts said the Supreme Court’s decision last year finding a constitutional right to same-sex marriage would inexorably lead to a ruling striking down anti-polygamy laws. However, the 10th Circuit Court of Appeals issued a decision Monday that left that question for another day by ruling that the case before them was moot since the plaintiffs no longer faced a credible threat of prosecution under the law…

A district court judge had ruled that part of the anti-polygamy law was unconstitutional, but the three-judge appeals court panel ruled in a unanimous opinion Monday that the case was no longer viable once the prosecutor involved, Jeff Buhman, issued a new policy limiting prosecution to cases of deception or involving polygamy and some other crime, such as abuse.


Much as with the original finding in 2014, this decision really settles nothing in terms of the overarching questions surrounding laws banning polygamy. The argument being made here by the 10th Circuit is particularly frustrating because they freely admit that it’s not a solution at all. The fact that the prosecutor, Mr. Buhman, has essentially “promised” not to prosecute anyone else solely on polygamy charges may remove the Browns from immediate peril, but as the court noted in the decision, this doesn’t mean that the policy couldn’t be changed yet again later or perhaps by Mr. Buhman’s successor, leaving us right back where we started.

Much like gay marriage laws, I run afoul of most social conservatives on this issue because these questions all seem far beyond what should be the normal constraints of government in terms of people’s private lives. Back in 2014 I wrote the following:

But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible. The fears that some are expressing over the Brown decision, however, aren’t really related to this question and appear to be unfounded. The court didn’t strike down rules against actual polygamy – the practice of being licensed and married to more than one spouse – but rather laws prohibiting one from saying they are married to additional people. You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.


Frankly, now that the gay marriage question was taken all the way to the Supreme Court, it might be time to air out the rest of these issues. I still maintain that the true conservative position on these subjects is to say that it is outrageous for the government – at any level – to demand a permission slip (or license) and charge a tax (in the form of a fee) in order for people to obtain Big Brother’s blessing over a private ceremony where they pledge their commitment to each other, either in private or in front of friends and family. Now, I freely admit that the whole idea of polygamy kind of creeps me out, personally. (Good Lord, man! I have enough trouble taking care of and sharing my space with one woman for decades on end. You want to do it with four?) But if I’m willing to keep Big Brother away from the marriage alter for two, I suppose it would be hypocritical to invite them in for four.

Knowing full well that I’m nearly alone in this opinion in the conservative community, I put on my asbestos undies before hitting the publish button, so have at it.


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