SALT LAKE CITY—Fans of the U.S. Supreme Court's decision in Lawrence v. Texas, which decriminalized consensual sodomy by overruling its previous decision in Bowers v. Hardwick, may remember Justice Antonin Scalia's paranoid dissent, wherein he stated this: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."
Of course, Scalia didn't mention polygamy, which we're sure was just an oversight ... but certainly the Justice must be feeling a little irked to find that on May 31, Utah County Attorney Jeffrey Buhman decided to discontinue his office's investigation, which has been ongoing for several years, into the living arrangements of Kody Brown, Meri Brown, Janelle Brown, Christine Brown and Robyn Sullivan, a self-described "plural family" (though only Kody and Meri are legally married) featured on the The Learning Channel TV show Sister Wives.
"After the show aired, the Lehi City Police Department began receiving a number of calls inquiring what the department intended to do," recapped U.S. District Court Judge Clark Waddoups in a decision dismissing Utah's governor and attorney general from the case. "The day after the first episode aired, the Lehi City Police Department publicly announced that it was investigating Plaintiffs for bigamy. Similarly, the Utah County Attorney's office stated that the Browns were placed under investigation after its attorneys saw the Sister Wives promotional trailer and commented that the Browns have made it easier for prosecutors because they admitted to felonies on national television."
Those "felonies," according to the complaint filed by George Washington Law School Professor Jonathan Turley (a frequent guest on the late, lamented Countdown with Keith Olbermann), were violations of Utah Code Ann. §76-7-101(1), which makes it a crime when a person, "knowing he [sic] has a husband or wife or knowing the other person has a husband or wife ... purports to marry another person or cohabits with another person." And if there's one thing the Brown family has been doing, it's cohabiting.
But Turley, in his suit papers, argued that although it "routinely" deals with them, the state should have little if any interest in "adults living together in intimate relationships without marriage licenses, including individuals who produce children out of wedlock or through adulterous affairs ... so long as they do not commit a collateral crime" like acquiring multiple marriage licenses, which the Browns have never done.
However, "While all other adults are allowed to live and have children in unamrried or adulterous relationships, those adults who live in such households pursuant to religious, as opposed to non-religious, reasons are subject to prosecution in Utah," the Browns' complaint stated. "Despite the fact that the Browns have not obtained multiple marriage licenses, they are subject to criminal prosecution (and have been threatened with such prosecution) solely because they call themselves a family in the eyes of their church."
Did we mention that the Browns are Mormon—well, actually, members of the Apostolic United Brethren, a Mormon offshoot—which religion affirmed the right—nay, the duty—of plural marriage right up until 1890, when the then-church president, Willford Woodruff, ordered Mormon families to obey the 1862 Morrill Act, a federal law which prohibited plural marriage in the U.S. territories, including Utah?
Turley's lawsuit sought to have the court declare §76-7-101, as well as any application of Article III of the Utah Constitution to them, unconstitutional under the substantive due process privacy and equal protection rights of the Fourteenth Amendment, as well as establishment and free association clauses of the First Amendment—and one of Turley's argument was that the Utah law violates later Supreme Court decisions, including Lawrence v. Texas.
"The present case does not involve minors," Turley quoted Lawrence as holding. "It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." [Citation omitted]
(Astute readers may have noticed that this paragraph is also an excellent argument why state laws concerning the making of sexually explicit movies in non-public settings should also be considered unconstitutional.)
Apparently, Utah County Attorney Jeffrey Buhman took the Browns' lawsuit seriously, because on May 31, his office filed a declaration with the district court in which they promised not to prosecute the Brown family for polygamy, to end any further investigation of them, and to adopt a new policy where the county would not prosecute any plural fimily absent the commission of a collateral crime like child abuse.
In light of those statements, Turley and co-counsel Adam Alba filed a Motion for Summary Judgment in the case, but even if that succeeds, as it is expected to, the Browns don't intend to let the matter rest there.
"We are committed to seeking a final review of this law before the federal court," the Brown family said in a written statement. "While our fight will continue for equal rights for plural families in this case, the termination of this investigation is the answer to our prayers to live without fear of prosecution because of our faith."