SALT LAKE CITY (AP) — Kody Brown and his four wives want what any family wants, to live in the privacy of their own home free from government intrusion, and out from under the threat of criminal prosecution for — as they see it — just loving each other.
The polygamous family, stars of the TLC show “Sister Wives,” has sued Utah and the county they fled from, hoping to persuade a federal judge to overturn the state’s bigamy law as unconstitutional.
The case could potentially decriminalize a way of life for tens of thousands of self-described Mormon fundamentalists, most of whom live in Utah where bigamy is a third-degree felony punishable by up to five years in prison.
The state, meanwhile, has publicly said it won’t prosecute consenting adult polygamists unless there are other crimes involved, but insists the law doesn’t overreach.
“It is not protected under religious freedom because states have the right to regulate marriage,” said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff.
A hearing was set for Wednesday on a motion to dismiss the case after prosecutors in Utah County, where the family had been living until last year, announced no criminal charges would be filed against the Browns under the state’s bigamy statute.
The move came after Shurtleff assured the Browns they wouldn’t be prosecuted by the state under his policy that consenting adult polygamists won’t be charged as long as they’re not committing other crimes.
U.S. District Judge Clark Waddoups then dismissed Shurtleff and Gov. Gary Herbert from the lawsuit, but allowed it to continue against the county since, at the time, prosecutors there hadn’t officially adopted the same policy. That changed in May when Utah County Attorney Jeff Buhman announced the closing of his criminal investigation into the Brown’s lifestyle, simultaneously adopting the state policy.
Buhman, who didn’t return a call from The Associated Press, is seeking to have the lawsuit dismissed outright. He claims the Browns have no standing since they are no longer subject to prosecution.
No matter, claims their attorney, Washington, D.C., constitutional law professor Jonathan Turley.
Brown and his wives — Meri, Janelle, Christine and Robyn — remain victims and continue to live under the stigma of being considered felons, Turley said, noting they fled to Nevada last year.
It’s no longer just about being prosecuted, Turley argued. “The underlying statute is facially unconstitutional.”
Like most polygamists, Brown only has a valid marriage license with his first wife, Meri. He married the other three in religious ceremonies. They consider themselves “spiritually married.”