The state of Utah is asking the U.S. Supreme Court to uphold its historic ban on polygamy, citing the ban on plural marriage as a condition of statehood.
The brief filed Tuesday is Utah’s response to a petition by reality TV polygamist Kody Brown and his four wives, who sued the state over its polygamy ban. The U.S. Supreme Court signaled its interest in the case by asking the Utah Attorney General’s Office to reply.
In its filing, the state asks the Court to not consider the “Sister Wives” case and argues Utah was required to abandon polygamy in 1894 as a condition of statehood.
“The Enabling Act’s polygamy ban, which Petitioners have not challenged in this case, was to be ‘irrevocable without the consent of the United States and the people of’ Utah,” Solicitor General Tyler Green wrote. “Utah’s founders complied and adopted the ban, which remains part of Utah’s constitution.”
Green argued that prosecutors have only gone after polygamy itself when in concert with other crimes (such as abuse, child-bride marriages or fraud), intended to prevent targeting people for religious beliefs.
Kody Brown and his wives, Meri, Janelle, Christine and Robyn found themselves under investigation by Lehi police shortly after they began appearing on their TLC show “Sister Wives.” They sued the state, challenging the ban on polygamy arguing that it violates their First Amendment religious freedom rights as well as their right to privacy.
A federal judge in Utah struck down a portion of the state’s ban on polygamy, ruling that it was no longer a crime to “purport” to be married to someone and cohabitate with them. However, the 10th U.S. Circuit Court of Appeals in Denver sided with the state, ruling that the Brown family did not face a credible threat of prosecution from Utah County Attorney Jeff Buhman.
The Brown family has petitioned the U.S. Supreme Court to take up the case. If the court grants the petition, it would be the first case it has decided on plural marriage since Reynolds v. United States, more than 100 years ago.
Asking the U.S. Supreme Court to reject the case, the Utah Attorney General’s Office revealed that lawmakers were making tweaks to the state’s bigamy laws. If House Bill 99 passes, it would no longer ban the mere practice of cohabitation among people.
“Instead, the amended Statute plainly would ban a married defendant’s cohabitating with another person only if that married defendant also purported to marry the person with whom he or she cohabitated,” Green wrote.
HB99, sponsored by Rep. Mike Noel, R-Kanab, was filed in the Utah State Legislature days ago and will be considered in the 2017 legislative session. Similar legislation Rep. Noel proposed last year failed in the final minutes of the session after protests by members of Utah’s polygamous communities.
The U.S. Supreme Court has not given a timeline of when — or if — it will take up the “Sister Wives” case.
Read the filing by the Utah Attorney General’s Office here: Brown v. Buhman Opposition brief by Ben Winslow on Scribd