Sister Wives: Polygamy case gets major setback
(KUTV) The "Sister Wives" polygamy case, heard by United States Court of Appeals for the 10th Circuit, was dealt a serious blow Monday.
Tenth Circuit Judges Matheson, Baldock and Moritz ruled the case to be "moot" in light of the fact that the family is no longer being prosecuted for polygamy in Utah County where the case began.
The case was brought to court when the Brown family, living in Utah County, was investigated after neighbors saw their show "Sister Wives" debut on cable TV -- outing the family for their lifestyle.
Utah county prosecutors ultimately decided not to prosecute -- and because of that decision -- the appellate court says the Brown's don't have a case if the state isn't going after them.
Kody Brown and his four wives live in Las Vegas, they moved out of fear they'd end up in jail if they stayed in Utah.
Connor Boyak, of Utah's Liberatas Institute, fought for families like the Brown's in the last Utah Legislative session.
"Individuals are presumed innocent until guilty, we must presume that consent exists," Boyak says of polygamist relationships.
"Where you have consenting adults and mutually loving supportive relationship" there "should not be a felony" said Boyack.
Parker Douglas, the state prosecutor on the Brown's case, says the concept of "consent" is the heart of the issue.
Douglas reacted to Boyack's comments.
"He has a point on consenting adults but I don't think he has done his homework on what consent means inside those communities."
Douglas has seen what can go wrong in polygamous communities including Hilldale and Colorado City where Warren Jeffs presides.
"It sounds very nice to say, 'oh yes, they are all consenting adults. When you get into the weeds and bushes and poke around consent is a very complicated issue."
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Adult women in marriages in some polygamist communities, he says, are there out of force or coercion; it's not just child brides the state has to worry about.
Douglas admits, there are some polygamist relationships that fit the category of consent, but after dealing with Jeffs, and the gross sex abuse and coercion inside the FLDS, the state wants to keep the door open to prosecute those who do harm.
As for polygamy in Utah, after today's ruling "it is still against the law, still a felony."
"There is a prosecutorial practice throughout the state not to prosecute bigamy cases unless there are other ancillary harms."
Douglas says those harms include "domestic abuse, child abuse, fraud of some kind."
Currently the Kingston polygamist class and followers of Warren Jeffs are under federal investigation for fraud.
Otherwise law abiding polygamists will still be left alone because of "sheer numbers," said Douglas.
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The Brown's attorney says "the underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case. Equally important is the right for plural families to be heard in federal court, a right sharply curtailed by this decision."
The appellate judges did not rule whether or not polygamy should be legal, only said the Brown's don't have a case, because the state is not going after them.
The Brown's family attorney, Jonathon Turley, said today in a written statement, "They will appeal to have the issue of polygamy heard."
The options include going straight to the U.S. Supreme Court or back to the Tenth Circuit Court of Appeals where the entire circuit of judges would have to hear the case.
"Either way this is not the end," said Turley, "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."
Turley says he will be exploring their options in the coming days.
"We believe that the opinion rests on a flawed understanding of both the facts and governing law in this case."
The bottom line for Turley and his clients?
"The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case. Equally important is the right for plural families to be heard in federal court, a right sharply curtailed by this decision."
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