'Sister Wives' family sues to prevent prosecution for polygamy

The US Supreme Court in 1879 ruled that polygamy is "an offense against society," holding that it is not protected by religious freedom, just as "human sacrifice" is not protected. One hundred-thirty-two years later, a lawsuit brought by an openly polygamous family – stars of TLC's reality show "Sister Wives" – asks whether their personal behavior should be exempt from prosecution under Utah's antibigamy law, just as individuals are not prosecuted for having multiple lovers or sex partners.

Advertising salesman Kody Brown and his family of four wives and 16 children filed suit in federal court Wednesday, asking a US judge to issue an injunction against Utah's law. Bigamy is a third-degree felony there, and police in Lehi, Utah, began investigating the Browns the day after "Sister Wives" made its television debut in September. Though no charges have been filed against them, the Brown family moved to Nevada in January to escape possible criminal prosecution.

Utah's law states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

The case has the potential to force another reexamination of laws governing individuals' sexual choices and lifestyles. It comes after the US Surpeme Court in 2003 struck down a Texas antisodomy law as an unconstitutional intrusion into private conduct, and at a time when views about marriage are in flux.

Legal analysts say it is important for the public to understand what this latest lawsuit is not about.

“This is not about the Browns' attempt to get Utah to recognize polygamous marriage, but rather to ask the federal courts to tell them they cannot punish intimate conduct,” says Melissa Murray, assistant professor of law at the UC Berkeley School of Law. The Browns will argue that the 2003 Supreme Court ruling in Lawrence v. Texas should extend to the practice of having multiple wives, she says.

Adds Herma Hill Kay, a US Berkeley law professor: “They are not seeking to have their relationship validated as a marriage. They’re just trying to avoid criminal prosecution.”

Jessica Levinson, a professor at Loyola Law School in Los Angeles, says the Browns will argue that criminalizing polygamy violates the 14th Amendment’s guarantees of due process and equal protection, as well as the First Amendment’s clauses guaranteeing the free exercise of religion, free speech, and freedom of association.

“Kody Brown is saying it all boils down to holding that if you can’t criminalize private, same-sex conduct, then why can you criminalize polygamists?” says Ms. Levinson.

The issue surfaced in September, when American TV audiences were presented with the unscripted, reality TV narrative of the Browns' unconventional lifestyle. Seven episodes of “Sister Wives” ran from Sept. 26 to Oct. 17, and its ratings were strong enough for the show to be renewed for a second season, which began in March. The second season chronicled the Browns' reaction to being investigated.

"Right now we live in a bizarre situation where everyone agrees that you can have multiple lovers, you can have children by those lovers, you can even have adulterous lovers, and you're protected as a citizen of the United States," the Browns' lawyer, George Washington University law professor Jonathan Turley told ABC News. "But the minute you tell them privately that you view them as your spiritual spouses, the state comes in and prosecutes you."

The state of Utah is accustomed to defending its law against bigamy – and winning. Two cases in the past five years have challenged the law – one in state court and the other in federal court – and each time the state's right to regulate marriage and to regulate bigamy was upheld, says Paul Murphy, spokesman for the Utah Attorney General's Office.

“There doesn’t seem to be anything new here,” he says. “This is just another challenge, and we expect the courts to uphold the over 100 years of tradition with family law.”

The case may yet be a test of whether rulings are affected by changing social mores, say constitutional scholars. They also are interested to see how the state of Utah defends its compelling interest in prohibiting bigamy and polygamy.

“Long ago, the Supreme Court upheld the law against polygamy. It will be interesting whether courts see subsequent developments as calling the earlier decision into question,” says Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “Social attitudes have changed enormously about homosexuality and marriage equality for gays and lesbians. But they have not changed about polygamy. Will that matter? From a legal perspective, the crucial question will be what the state identifies as its interest and whether the courts accept this as adequate to justify the law.”

One key element that may receive clarification is whether a behavior is acceptable simply because it is not hurting anyone else, say analysts. Other high-profile cases involving polygamy – such as the case of Warren Jeffs, leader of a polygamous sect who is awaiting trial in Texas – have included charges of rape and issues of domestic violence and child abuse.

“This lawsuit is very specific in terms of saying that as long as you don’t do harm to anyone such as abusing a child or your wife, that polygamy should be held constitutional,” says Loyola's Ms. Levinson.