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‘Sister Wives’ and Utah’s polygamy ban to hit the 10th Circuit Court

DENVER -- A federal appeals court will wade into Utah's historic ban on polygamy, and whether it violates constitutional rights of religion, association, and the privacy of consenting adults.

The 10th U.S. Circuit Court of Appeals will hear arguments Thursday over reality TV polygamist Kody Brown's lawsuit against Utah over its ban on plural marriage. The Utah Attorney General's Office is asking the appeals court to overturn a federal judge in Utah's ruling that struck down a provision of Utah's constitutional ban dealing with cohabitation.

Brown and his four wives, Meri, Janelle, Christine and Robyn, sued Utah after they fell under investigation by Lehi police when they began appearing on their TLC show "Sister Wives." They argued the state's ban on polygamy violated their First Amendment rights, including religious freedom and free exercise, their right to privacy as consenting adults, and their Fourteenth Amendment right to equal protection under the law.

Polygamist Kody Brown (center) and his wives (left to right) Janelle, Meri, Robyn and Christine. (Image courtesy TLC)

Polygamist Kody Brown (center) and his wives (left to right) Janelle, Meri, Robyn and Christine. (Image courtesy TLC)

In 2013, a week before another federal judge struck down Utah's ban on same-sex marriage, U.S. District Court Judge Clark Waddoups overturned part of the state's polygamy ban. Waddoups' ruling essentially decriminalized polygamy -- it's no longer illegal to "purport" to be married, but it remains a crime to seek multiple marriage licenses.

The "Sister Wives" case raises some big constitutional questions, said University of Utah law professor Amos Guiora, who has written extensively on polygamy and the law. He noted that Utah abandoned the practice of polygamy as a condition of statehood.

Polygamy in Utah around the time of the state's founding. (Image courtesy Utah Dept. of Heritage and Arts collection)

Polygamy in Utah around the time of the state's founding. (Image courtesy Utah Dept. of Heritage and Arts collection)

"The state of Utah made a promise, a solemn oath that there won't be polygamy," he told FOX 13. "In many ways, what this case suggests and raises is, once and for all, we're going to have to determine -- polygamy yes? Or polygamy no?"

The Utah Attorney General's Office is asking the 10th Circuit Court to uphold Utah's polygamy ban -- pointing to societal harms linked to plural marriage, including abuse and underage marriages. One of their court filings explicitly mentioned Fundamentalist LDS Church leader Warren Jeffs, who is serving a life sentence in Texas for child sex assault related to underage "marriages."

FLDS leader Warren Jeffs and some of his wives, in this image provided to FOX 13. (Faces blurred to protect any alleged sex crimes victims.)

FLDS leader Warren Jeffs and some of his wives, in this image provided to FOX 13. (Faces blurred to protect any alleged sex crimes victims.)

The Browns have objected to what they term the state criminalizing the right of consenting adults to maintain private relationships. They pointed to recent rulings involving same-sex marriage, and insist they don't want legal recognition of their plural marriages -- just decriminalization.

Guiora said it was his hope the polygamy ban would be upheld, pointing to abuses associated with it. He noted that Canada's Supreme Court had in recent years considered a constitutional question about the right to polygamy and upheld their ban.

There is a sign the 10th Circuit Court panel hearing the "Sister Wives" case may dismiss it -- they recently asked for briefings about whether the Brown family really faced the possibility of criminal charges from the Utah County Attorney. The state insists they did not, the Browns maintain they still face fear of prosecution.

Guiora said the case could go all the way to the U.S. Supreme Court, which hasn't considered a polygamy case in more than 100 years.

"The Supreme Court, I think, is going to have to recognize just like with same-sex marriage, there's going to have to be a need for a decision," he said. "Which will be the decision."

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