sister wivesKody Brown poses with his wives at one of their homes in Las Vegas.
Photograph: Guardian/Jerry Henkel /AP


The Mormon stronghold of Utah is trying to defend its laws on marriage on two fronts, same-sex marriage and polygamy, but courts are not on the state’s side. Last week federal judge Clark Waddoups finalised an order striking down part of Utah’s law against bigamy in a drawn out lawsuit by Kody Brown and his four “sister wives” against the state.

The Browns are part of a sect with Mormon roots who feature in the television show “Sister Wives”. It was after this show first went to air four years ago that the state began its investigation of the polygamist family. They are framing the issue as one of religious freedom.

Utah’s Attorney General Sean Reyes says he will appeal Waddoups’ ruling, but the Browns’ lawyer has asked him to reconsider, reports the Salt Lake Tribune:

“Attorney General Reyes takes an oath to protect the Constitution and that is exactly what this decision does,” Turley said in an interview Wednesday. “For the state of Utah to appeal this case, it will have to go to [the appeals court in] Denver and argue against the freedom of religion.”

Waddoups ruling has come in three parts:

* In December he struck the section of Utah’s bigamy statute that can be applied when someone “cohabits with another person” to whom they are not legally married. Utah law made such a union a felony punishable by up to five years in prison. Waddoups said the ban violated the First and 14th amendments to the Constitution.

* He let stand the part of the law that prevents someone having more than one active marriage license.

* Last week he found the Utah County Attorney violated the Browns’ constitutional rights when he oversaw a 2010 investigation into whether the Brown family was committing bigamy. At the time the Browns lived in Lehi. They have since moved to Nevada. Buhman eventually decided not to file criminal charges, but Waddoups said the investigation stifled the Browns’ rights to free speech, religion and equal protection.

The Tribune reports:

In court filings and oral arguments before Waddoups, attorneys for Utah have argued polygamy is inherently harmful to women and children and the state had an interest in deterring it.

This may be a difficult case to make, given testimonies from women like Brown’s wives (and children?). The state is also up against decisions relating to same-sex relationships:

The Browns filed their lawsuit in July 2011, arguing Utah’s law violated their right to privacy. The family’s argument relied primarily on the 2003 U.S. Supreme Court decision that struck down the Texas law banning sodomy, which was celebrated by gay rights advocates.

Reyes’ office is already appealing a marriage ruling that came days after the bigamy ruling. That second ruling struck down Utah’s ban on same-sex marriage.

Arguably, there’s never been a better time in the US to make a bid for the right to polygamy.

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet