SALT LAKE CITY -- A federal appeals court has rejected a lawsuit filed by reality TV polygamist Kody Brown and his four wives, declaring that the family did not actually face a threat of prosecution from Utah authorities.
In a ruling handed down Monday, the 10th U.S. Circuit Court of Appeals in Denver sent the case back to a lower court, essentially dismissing it. The effect means that, for now, polygamy once again is a felony in Utah.
The Brown family's lawyer said in a statement that they were considering their options -- including an appeal to the U.S. Supreme Court.
"The Brown family is obviously disappointed in the ruling but remains committed to this fight for the protections of religion, speech, and privacy in Utah. They respect the panel’s consideration of the appeal and the review process afforded their case," Jonathan Turley wrote.
"We respectfully disagree with the decision, which in our view departs from prior rulings on standing and mootness. We have the option of seeking the review of the entire Tenth Circuit or filing directly with the Supreme Court. We will be exploring those options in the coming days. However, it is our intention to appeal the decision of the panel."
Governor Gary Herbert indicated on Monday he was pleased with the appeals court decision.
"I'm a big believer in rule of law," he said when informed of the decision by FOX 13. "I'm a big believer in state rights, and I think when it comes to marriage, for example, it is a state right."
Kody Brown and his wives, Meri, Christine, Janelle and Robyn filed a lawsuit against the state challenging its historic ban on polygamy (Utah abandoned the practice of plural marriage as a condition of statehood). They argued that it violated their right to privacy and freedom of religion. The family found itself under investigation in 2011 by Lehi police when they began appearing on their TLC reality-TV show "Sister Wives." In 2012, the Utah County Attorney claimed he would not prosecute the Browns for polygamy alone -- unless there was evidence of other crimes like abuse or fraud.
Polygamist Kody Brown (center) and his wives (left to right) Janelle, Meri, Robyn and Christine. (Image courtesy TLC)
In 2014, a federal judge sided with the Browns and overturned part of the state's ban on polygamy. It was no longer illegal to "cohabitate" with multiple people, but it remained illegal to seek multiple marriage licenses. (Ironically, the ruling came a week before another federal judge in Utah struck down the state's ban on same-sex marriage.)
The state appealed.
The 10th U.S. Circuit Court of Appeals dismissed the Brown family's lawsuit, ruling they "do not face a credible threat of prosecution." They cite the Utah County Attorney's repeated declarations that he would not prosecute polygamy alone, unless it was in concert with other crimes.
"He declared under penalty of perjury that the Browns will not be prosecuted absent evidence of a collateral crime. And the dearth of prior UCAO prosecutions under the Statute—at least for bare violations unconnected to collateral crimes—indicates his position is not mere posturing," the court wrote.
Members of Utah's polygamous communities were not happy with the ruling, but vowed to no longer live in the shadows. Earlier this year, plural families staged a large-scale rally at the Utah State Capitol against anti-bigamy legislation.
"The merits of the case were not ruled upon because the merits are irrefutable. We will be silent no more," wrote Joe Darger in a Facebook post.
The Utah Attorney General's Office insisted that its policy would remain that it would not prosecute polygamy alone, but in concert with other crimes like child-bride marriages or fraud. Parker Douglas, the federal solicitor for the state, said in an interview with FOX 13 on Monday that they had no plans to begin prosecuting polygamists.
"We have to have reports. We have to have investigations and we don't comment on whether are investigations," he said. "We haven't received a report as far as I know."
The case has been sent back to the federal court in Salt Lake City where it is expected to be dismissed, unless the Browns appeal.
Read the ruling by the 10th U.S. Circuit Court of Appeals here:
