The Browns' attorney, George Washington University law professor Jonathan Turley, issued a statement last week.
"Regardless of the outcome, we have great respect for Judge Clark Waddoups and appreciate this opportunity finally to present our case on the merits of these claims," the statement said. "The [Browns] are not seeking public approval of their beliefs or state recognition of their plural relationship. They are asking for what all other citizens of Utah take for granted: the right to maintain their own family and faith without threat of prosecution.
"The state continues to declare those in plural relationships to be felons and their families to be criminal enterprises. We look forward to presenting our case that such criminalization violates the fundamental guarantees of our country."
Earlier arguments hinged on whether the Browns could file their lawsuit. Since the Browns have never been prosecuted for bigamy and both the Utah Attorney General's Office and the Utah County attorney have publicly declared they are not interested in prosecuting polygamists who otherwise follow the law, attorneys for the state argued the Browns were not suffering any injury and lacked standing to launch a legal challenge.
Turley argued there remains a threat of prosecution that infringes on his client's right to privacy. Waddoups sided with the Browns and let the lawsuit proceed.
Prior notable challenges to bigamy statutes have come from people convicted of the crime, including former Hildale marshal Rodney Holm, who in 2006 lost an appeal to the Utah Supreme Court to overturn his convictions for bigamy and unlawful sexual conduct. Holm was convicted of marrying and having sex with a 16-year-old girl.
But there's no such issue in the Brown case Kody Brown and his four wives are all consenting adults. Ken Driggs, a Georgia lawyer who has studied the issue of polygamy and the law, said a case of consenting adults being harmed by bigamy statutes is what polygamists need to force higher courts to examine the constitutionality of bigamy.
"The courts generally don't like to decide an issue unless it's ripe, meaning all the findings of fact have been made," Driggs said.
Turley has said the Browns are only asking for polygamy to be decriminalized, not for the state to recognize multiple marriages.
In written motions already filed with the court, lawyers from the Utah Attorney General's Office point to previous rulings upholding bigamy statutes and say marriage can be regulated by the government. The office also argues the law is fairly applied to both polygamists and people who commit fraud by marrying more than one unknowing person at a time.
Lawyers for the state also have warned Waddoups not to read too much into the 2003 U.S. Supreme Court ruling striking down sodomy laws for gay sex. The privacy rights given in that ruling should not necessarily be applied to the Browns, the state has argued.
"Plaintiffs try to equate private sexual conduct in the home with marriage," the Utah Attorney General's Office wrote in a court motion. "They are not the synonymous. (sic)"
Will "Sister Wives" show?
The hearing is 3:30 p.m. Thursday at the federal courthouse, 350 S. Main St. in Salt Lake City. It's not known whether the Brown family husband Kody and wives Meri, Janelle, Christine and Robyn will attend Thursday's hearing. None of them attended a hearing on July 13, 2011. The family moved to Nevada in 2010 after the Utah County attorney launched an investigation into whether the Browns were breaking the law. No charges were filed.