Polygamy remains a crime as U.S. Supreme Court won’t hear case from ‘Sister Wives’

The U.S. Supreme Court on Monday declined to hear arguments from the husband and four wives who star in the television show "Sister Wives," letting stand a lower court ruling that kept polygamy a crime in Utah.

The appeal by Kody, Meri, Janelle, Christine and Robyn Brown sought to remove the penalties for a practice that has caused consternation in Utah since the first Mormon settlers arrived. Some of the state's politically active polygamists vowed Monday to continue efforts to decriminalize plural marriage.

Salt Lake County's Darger family — husband Joe and wives Vicki, Valerie and Alina — on Twitter turned their attention to trying to remove the criminal penalties through the political process.

"Today is an Injustice to not be heard by SCOTUS," the family tweeted on its account. "We suspect there will be many people everywhere demanding to be heard for Liberty."

Kristyn Decker, a former plural wife who runs an anti-polygamy group called Sound Choices Coalition, said she was grateful the Supreme Court won't hear the case.

"Research (especially that done by Canada's Supreme Court), proves that polygamy is inherently harmful to women, children and to Society as a whole," Decker wrote in a statement. "We hope those who've been raised to believe they must live polygamy to attain their salvation, or because of family tradition, will soon awaken to that nonsense and find genuine freedom and happiness."

After the Supreme Court's 2015 rulings that legalized gay marriage, some polygamists and libertarians believed polygamy was the next step in marriage rights. Some lawyers also thought the Browns represented the best chance in decades for polygamy to win in the courts because all five spouses were consenting adults with no taint of crimes such as sexual abuse or fraud.

But the Browns' case was hampered by one problem — the Browns have never been prosecuted for bigamy.

They contended the law on the books and a 2010 investigation by Lehi police were enough to constitute discrimination. The bigamy statute, when read broadly, could be used to prosecute unmarried couples who live together. Yet the statute, which makes polygamy a felony punishable by up to five years in prison, has been used only to prosecute polygamists.

The Utah attorney general's office argued polygamy is inherently harmful to women and children and that the state has an interest in keeping it a crime if only as a way to help it prosecute more serious crimes within polygamous communities.

In December 2013, federal Judge Clark Waddoups sided with the Browns and struck down the portion of Utah's bigamy statute focused on polygamy. (A portion dealing with having active, multiple marriage licenses remained.)

Last April, an appeals court in Denver overturned that ruling. In finding the Browns lacked standing to file a legal challenge, a three-judge panel considered a policy by the Utah County attorney's office limiting polygamy prosecutions to cases which also include offenses like sexual abuse, fraud and underage marriage. Other county prosecutors and the Utah attorney general's office have similar policies.

Ken Driggs, an Atlanta criminal defense attorney and legal historian who has written about fundamentalist Mormonism, said the best chance for the Supreme Court to take up polygamy is for prosecutors to charge consenting adults, and for the polygamists to show harm from that prosecution. However, Driggs said, it's unlikely any prosecutor will file charges against polygamists like the Browns for fear of an appeal.

"I'm not going to say that no prosecutor would think about doing it," Driggs said. "I'm saying they would not be successful in the long run."

The Browns' attorney was George Washington University law professor Jonathan Turley. On his blog Monday, he again contended his clients had a "fundamental right to follow their own faiths so long as they did not harm others."

Turley also suggested Waddoups' ruling might yet have an impact.

"Our victory in Salt Lake City will remain as a cautionary decision for legislators who wish to marginalize or sanction this community in the future," Turley wrote.

Janet Bennion, a professor of anthropology at Lyndon State College in Vermont who studies forms of marriage and supports the decriminalization of polygamy, framed the Supreme Court's decision in a broader political context. There is a populist movement in the United States and many countries to expand the definition of marriage, and that movement will eventually succeed. But it is slowed, Bennion said, by governments that enforce the concept of a nuclear family.

"The reality is we are going to see an expansion of marriage," Bennion said, "but not the protections they deserve."

The discussion of whether polygamy should be a crime in Utah still has an immediate focus. A bill filed in the Utah Legislature, where the 2017 session began Monday, clarifies polygamy is a felony. HB99, filed by Rep. Mike Noel, R-Kanab, amends the Utah bigamy statute to address concerns in Waddoups' ruling.

A coalition of polygamists from across Utah have made plans to oppose it. Like the Browns' lawsuit, the Principle Rights Coalition is not seeking legal recognition of polygamy — just that the criminal penalties be removed.

Kody Brown belongs to the Bluffdale-based church called the Apostolic United Brethren (AUB). Members believe in polygamy as a tenet.

The family lived in Lehi and came to the attention of police there in 2010, when the TLC network launched a reality show that follows the family, called "Sister Wives." At the time, Kody Brown was legally married to only his first wife, Meri. They later divorced, though their spiritual marriage remains and they continue living as husband and wife, and Kody legally married his fourth wife, Robyn.

The Browns moved to Nevada after Lehi police began their investigation.

Recent tabloid reports said Kody Brown had split with the AUB. Brady Williams, another polygamist and friend of Kody Brown, recently told The Salt Lake Tribune in a text that Kody "is still a member of the AUB with no intention of leaving."

The legal case was named "Brown v. Buhman" for Kody Brown and Utah County Attorney Jeff Buhman.

ncarlisle@sltrib.com

Twitter: @natecarlisle