Constitution Daily

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Reality TV star may get his day in front of the Supreme Court

December 17, 2013 by Scott Bomboy


Kody Brown, the star of the TV series Sister Wives, has won a key legal battle in his constitutional fight to Utah’s bigamy statute. The question now is if Brown’s case will make it to the highest court in the land.

Sister WivesLast week, Brown and his four sister wives gained a huge win in the United States District Court in Utah, in a case we first covered in June 2012, in the wake of the Supreme Court’s same-sex marriage decisions.

The Windsor and Hollinsworth decisions led to a theoretical question:  If courts could force individual states to accept same-same marriage by repealing the Defense of Marriage Act , might they also have to accept polygamy?

At the time, the Alliance Defense Fund (ADF), raised the issue.

“Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the right to step in against polygamy at one time in our nation’s history, and it has the right to step in against this attempt at marriage redefinition as well,” said Dale Schowengerdt, an ADF attorney.

Last Friday, Judge Clark Waddoups ruled that Brown and his sister wives had the right to “religious cohabitation.”

“The State of Utah has no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue here; thus, the cohabitation prong of the Statute is facially unconstitutional, though the broader Statute survives in prohibiting bigamy,” said Waddoups.

Legally, Brown is married to just one of the four “sister wives.”

Brown belongs to a sect that is not connected to the Church of Jesus Christ of Latter-day Saints, but his group still practices polygamy. The Latter-day Saints have barred polygamy as part of their belief system since 1890.

Utah County prosecutors started investigating Brown and his extended family after Sister Wives debuted on TV in 2010. He soon moved from Utah to Nevada as part of the legal fight over the charges.

Brown and his domestic partners sued in federal court in 2011, claiming Utah's ban on having multiple marriage partners violates the U.S. Constitution.

In the 1878 case of Reynolds v. United States, the Supreme Court ruled thata party's religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.”

Plural marriage had been made illegal through various laws at the time, and the court refused to intervene to overturn those laws, based on claims of First Amendment protection.

Since then, the issue has rarely been in front of the Supreme Court. In 2007, the Court declined to hear a high-profile case on the matter.

But with Judge Waddoups’s ruling, the door has been opened for an appeal at one more federal court, before it possibly gets to the Supreme Court.

"Many people do not approve of plural families," the Browns said in a statement, but "we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs."

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