Same-sex marriage decision might not impact Utah’s polygamy appeal because of one word

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SALT LAKE CITY -- The U.S. Supreme Court's historic ruling on same-sex marriage is most certainly expected to be cited as Utah appeals a decision overturning part of the state's polygamy ban.

However, its impact may not be as big as people would think.

In his dissent in Obergefell v. Hodges, Chief Justice John Roberts made reference to polygamy and even cited Brown v. Buhman, Utah's appeal of a lawsuit filed by reality TV polygamist Kody Brown and his four wives, challenging the state's ban on plural marriage.

"It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage," Roberts wrote in the dissent to same-sex marriage.

But the Utah Attorney General's Office said it may not be so -- because of how the Supreme Court's majority opinion worded its ruling on gay and lesbian unions.

"I don't think in the majority opinion I saw anything but 'two' and 'couple' throughout," Parker Douglas, the Utah Attorney General's Federal Solicitor, said in a recent interview with FOX 13.

Kody Brown and his wives, Meri, Christine, Janelle and Robyn, sued the state of Utah in 2011 after finding themselves under investigation for bigamy after they began appearing on their cable TV reality show "Sister Wives." In 2013, a week before a federal judge overturned Utah's same-sex marriage ban, another judge essentially decriminalized polygamy in Utah by issuing a ruling that struck down the cohabitation prong of Utah's anti-bigamy statutes.

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)

For now, Utah cannot prosecute polygamy alone because there are constitutional questions about religious freedom and personal privacy laws (it remains illegal to seek multiple marriage licenses). In its own filings, the state has argued it has an interest in protecting marriage and there is already an 1879 U.S. Supreme Court ruling that declares polygamy illegal.

Jonathan Turley, the attorney for the Brown family, said in an email to FOX 13 that their case is about "criminalization of cohabitation and not the recognition of plural marriage."

"In that sense, Brown is closer to the ruling over ten years ago in Lawrence v. Texas," he wrote, referencing the U.S. Supreme Court decision that struck down laws criminalizing gay sex.

"Nevertheless, there is language and analysis in the opinion that certainly amplifies our arguments on challenging the criminalization of these relationships. This includes the harm to families in being excluded from society and the injury associated with such stigmatization.  However, we have not asked for recognition of plural marriages. There has only been one marriage license in the Brown family. The rest of the marriages are "spiritual."  The case deals with whether a state can criminalize the consensual cohabitation of adults.  I expect that the case will be cited in our upcoming argument in Denver."

Douglas believes the U.S. Supreme Court justices chose their words carefully.

"I'll take them at their word to say that the right they're talking about is for two people to enter into a union they find sacred between themselves," he said.

Meanwhile, groups are lining up to side with the state's position that the ban on plural marriage should be upheld. The anti-polygamy group Sound Choices Coalition has given notice it will be jumping into the case. In a "friend of the court" brief filed Wednesday, the conservative Eagle Forum argued that there was no First Amendment right to polygamy and if the court were talking about human sacrifices, there would be no argument.

"Here, the harms that Utah and the United States seek to avert are harms to humans in polygamous relationships, and there is no suggestion of a double standard pitting the mistreatment of some humans (or religions) against that of others. While it might feel to Plaintiffs – or seem to the district judge – that Utah or the United States intends to persecute Plaintiffs’ religion, Utah is merely prohibiting a harmful practice, without regard to religion," the group said.

Read the filing here: