SALT LAKE CITY -- Reality TV polygamist Kody Brown and his wives are asking the U.S. Supreme Court to consider a challenge to Utah's anti-polygamy laws.
Brown and his four wives, Meri, Christine, Janelle and Robyn, plan to file a petition for certiorari with the nation's top court, challenging the state's ban on polygamy. The petition, filed Monday, basically focuses on whether the Browns really faced a threat of prosecution from Utah County Attorney Jeff Buhman.
Brown family attorney Jonathan Turley argued they do.
"Mr. Buhman and his colleagues appear to value the law precisely because it can be used pre-prosecution for in- vestigations and corresponding searches, which may only last hours or days," Turley wrote. "However, plural families and cohabitating adults must live under the constant threat of being subject to a different and easier thresh- old for searches since their very family structure is all that is needed to justify investigations."
Reality TV polygamists (left to right) Meri, Janelle, Robyn, Kody and Christine Brown.
The Browns found themselves under investigation by Lehi police when they began appearing on their cable TV show "Sister Wives," documenting their lives as polygamists. The investigation forced them to leave Utah for Nevada, their attorneys claim.
Brown and his wives sued the state of Utah over its historic ban on polygamy -- a condition of statehood -- arguing that it violated their constitutional rights to religious freedom and privacy. In 2013 -- a week before Utah's same-sex marriage ban was overturned -- a federal judge in Utah struck down a portion of the state's polygamy ban. The Utah Attorney General's Office appealed the ruling, and the 10th U.S. Circuit Court of Appeals reversed that in a decision earlier this year, declaring the Browns did not face a credible threat of prosecution.
It is that ruling that Turley is working with in his appeal, arguing that the 10th Circuit's decision was incorrect. The Utah Attorney General's Office declined to comment Monday on the petition, but is expected to respond and ask the U.S. Supreme Court to decline to hear the case.
If the U.S. Supreme Court grants the Brown family's petition, it would be the first time the court has heard a polygamy case since Reynolds v. United States in 1878. In that decision involving early Mormon church official George Reynolds and his wives, the court upheld polygamy bans.
George Reynolds, who was prosecuted for polygamy in a case that went to the U.S. Supreme Court. (Image via Utah State Historical Archives)
"It needs to change. It's beyond time for it to change," said Vicki Darger, a polygamous wife living in Utah with her husband and two sister-wives.
Since the 10th Circuit Court ruling, the Dargers have been effectively reclassified as "felons." Joe Darger said he cannot legally purport to call Vicki as his "wife," even though he lives with her and has children with her.
"If we're going to prosecute it? Arrest us!" Joe Darger told FOX 13. "If not, treat us like every other citizen."
Darger has been pushing the Utah State Legislature to consider decriminalizing polygamy in the aftermath of the "Sister Wives" case.
Polygamists Alina, Valerie, Joe and Vicki Darger. (Image courtesy the Darger Family)
University of Utah law professor Amos Guiora said the time may be right for the U.S. Supreme Court to take up the "Sister Wives" case, especially after last year's ruling that allowed for same-sex marriage nationwide.
"The court may feel the time has come to address this," he told FOX 13. "At least in contemporary society, changing morays, changing norms and the court may feel this is an appropriate case to take."
However, Guiora argued that the U.S. Supreme Court should examine polygamy broadly, including a look at underage marriages and abuses often associated with Fundamentalist LDS Church leader Warren Jeffs and his followers. He pointed out Canada's Supreme Court took up polygamy in recent years, ruling to uphold its ban on plural marriage.
A photo provided to FOX 13 of FLDS leader Warren Jeffs and some of his wives. Faces have been blurred to protect the identities of any alleged crime victims.
Unlike the convictions of Jeffs and other FLDS Church members, Brown and his wives are all consenting adults. Guiora said the U.S Supreme Court could certainly restrict their consideration of the case to plural marriage among consenting adults -- but opponents of polygamy would remind the court of harms associated with it.
Read the petition to the U.S. Supreme Court by the Brown family here:
