“Sister Wives” case moves slowly toward Supreme Court

National Constitution Center Supreme Court correspondent Lyle Denniston looks at the legal hurdles faced by reality TV star Kody Brown as he contests Utah’s anti-polygamy statute.

For more than five years, reality TV star Kody Brown and the four women to whom he is married, either legally or “spiritually,” have been trying to gain a constitutional right to that relationship.  Their lawyer plans to move the case on to the Supreme Court this fall but, on the path to the Justices, theirs has become a different cause.  Now the “plural family” is simply trying to keep their case alive.

Brown and his spouses gained considerable fame for the reality program, “Sister Wives,” on the TLC channel.  It showed what life is like day-to-day in such a family.  But the TV show itself, after its very first episode aired, got them into trouble in Utah.  They fled to Nevada to avoid prosecution under an anti-polygamy Utah law.

At one point more than two years ago, the family won a significant victory in a federal trial court in Salt Lake City.  The judge struck down part of the Utah law making it a crime to “cohabit with another person” if the partners are not legally married to each other.  The ruling recognized a novel legal concept: a right to religious cohabitation.  More broadly, it spoke of the idea of “consensual sexual privacy” – an idea that might well apply beyond the Browns’ own situation, and become a more widely practiced legal opportunity.

Even though the Utah attorney general and the county attorney in the area where the Browns had made their home had said publicly that they had adopted policies that would exempt the Brown family from the Utah law, the trial judge thought the switch – at least by the county attorney – was simply a way to try to make the case go away.  The judge ruled that the case was not “moot,” and then ruled decisively for the family.

Brown and his spouses still own the home they lived in, in Lehi, Utah.  And, although Brown and his attorneys insist that the plan is to move back to that home when there is no longer any threat of prosecution, that claim itself has been put in doubt by a higher federal court – the U.S. Court of Appeals for the Tenth Circuit.

In a multi-faceted ruling last April, the appeals court said the Brown case had become moot – legally, a dead letter.  There is no credible threat that they will be prosecuted, it concluded.  Also, it said, the family has put down roots in Nevada, raising doubts that they would go back to Lehi.  And, further, the appeals court said, even if they did go back, too much time has passed so the county could not prosecute them, anyway.

That was a ruling by a three-judge panel.  The Browns’ lawyers attempted to persuade the full Tenth Circuit Court to reconsider the panel ruling, but that failed in May.  The lawyers have now obtained a postponement until next month of the deadline for filing their case in the Supreme Court.  That, though, is a signal that they will attempt an appeal.

In seeking a new hearing, the attorneys for the family laid out the points they will be making when they do file in the Supreme Court.  One of the key points is whether a local prosecutor can be found to have actually abandoned any plan to file charges, if the prosecutor still thinks that the law under which someone formerly faced charges remains constitutional.

This relates to the broader point that the courts generally will not allow someone who has been sued to scuttle the case, just by changing a position while the case moves forward in court.  Only if there is absolutely no chance of future charges can such a switch end a case, the Browns’ attorneys are arguing.

On another point, the family has contended that prosecutors in Utah will continue to use the anti-polygamy law as a wedge to investigate “plural families.”   While prosecutors may have abandoned at least temporarily any plan to bring charges against the Browns, the county prosecutor in Utah does maintain a policy that the law will be enforced in any case of polygamy where there is evidence of fraud or of abuse.  That, according to the Browns, allows for intrusive monitoring of the lives of plural families, in a way that other, two-partner families won’t face.

The family will also attempt to get the Supreme Court to sort out when an appeals court is required to leave undisturbed the factual conclusions that the trial court judge had made.  That is important to their case, they told the appeals court, because the judges on that panel “used the family’s flight to avoid the very prosecution they sought relief from as evidence that they really did not want to be in Utah.”

It is “circular logic,” the lawyers complained, for the appeals court to have relied first upon the family’s move to Nevada and their temporary decision to remain there while their court case went forward as proof that they felt no threat of prosecution, but then to turn around and use the move across the state line as proof that there was no real threat from Utah prosecutors.   This, the lawyers argued, was a case of “using self-help measures by victims as evidence that they are really not harmed.”

With the anti-polygamy law still on the books in Utah, and with its validity still defended by prosecutors, the family has contended that they “and all cohabitating adults live under the continual threat of prosecution and remain labeled as felons under the law.”  This, they argued, keeps their case alive, because the threat is ongoing.

This case, having changed character from a major test of a new constitutional right into a dispute about the specific facts of what has or has not happened, may be a difficult one to get the Supreme Court to review.  The Justices tend to leave undisturbed lower court rulings that are so closely tied to specific facts.  Only if the Justices see the procedural issues the Browns will raise as intriguing is the case likely to be taken on for a decision.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.