The "chilling effect" of an open investigation into the polygamous stars of a reality TV show should allow them to challenge Utah's bigamy law, their attorney argued Friday in Salt Lake City's federal court.
"Not only has the state defined them as a criminal association, you have prosecutors coming out and saying they are committing a crime every night on television," said Washington, D.C.-based constitutional law attorney Jonathan Turley. "If this doesn't get them to come to federal court, what does, short of a federal indictment?"
U.S. District Judge Clark Waddoups took Friday's arguments under advisement and is expected to rule in about a month.
Kody Brown and his four wives Meri, Janelle, Christine and Robyn sued to strike down the bigamy law in July, nearly a year after police in their former hometown of Lehi opened an investigation following the debut of their TLC show "Sister Wives."
Though the case remains open, no charges have been filed, and without criminal charges the state says the Browns don't have legal standing to challenge the law.
Assistant Attorney General Jerrold Jensen countered Turley's arguments Friday with a new revelation: The investigation wasn't only about polygamy.
"Officials in the state of Utah do not prosecute for just bigamy. It is brought up in conjunction with another crime. That other crime is being investigated by the Utah County Attorney," Jensen said, though he declined to specify. Chief deputy Utah County Attorney Timothy Taylor confirmed the additional investigation, and said it should be wrapped up in about two months, though he declined to comment further due to the ongoing investigation.
Jensen argued that the injuries claimed by the Browns including spending their savings moving to Nevada and loss of entertainment-related income were the result not of the county's investigation but by their choice to publicize their lifestyle on cable television.
"The Browns have manufactured a case that doesn't exist," Jensen said.
But Turley countered that the Browns have been careful to keep any mention of the lawsuit off the show.
"This family was singled out. Yeah, they were on TV. They have a right to be on TV. What are these statements [by prosecutors] about if not a chilling effect?" Turley said.
He said the Browns did not attend Friday's hearing due to a fear of prosecution.
Waddoups closely questioned Turley on how his clients could have legal standing. If Waddoups decides to let the case go forward, the Browns will argue the bigamy law is unconstitutional because it violates their right to privacy, while the state plans to counter that the harms caused by plural marriage justify keeping the law on the books.
The legal-standing issue sunk a 2004 challenge of the state's bigamy law when a judge dismissed claims that a woman was wrongly barred from getting a marriage licence to be a second wife. The Brown suit, by contrast, calls for decriminalization rather than legalization of polygamy.
"The Brown family hopes they will have a chance to be heard on the merits of this," Turley said. "They miss Utah."
On Friday, Jensen said the attorney general's office policy is to only file bigamy charges against a polygamist in connection with other crimes, such as underage marriages, child abuse or welfare fraud. The Utah County Attorney has no stated policy. A straight bigamy prosecution hasn't been filed in Utah for more than 50 years, Jensen said.
A check of state court records by The Associated Press, however, found at least two cases.
Bob Foster had three wives when he was arrested and charged with bigamy in 1974. He pleaded no contest and was sentenced to six months in jail. He was released after 21 days and ordered to serve five years of probation. A judge also said Foster was not allowed to live with his families. Foster died from cancer in 2008. He was still married to all three women.
Mark Easterday was arrested and charged with bigamy in 1999. Authorities were alerted to Easterday's multiple marriage as part of a custody battle during his divorce from his first wife. He ultimately pleaded no contest to adultery because the divorce was finalized before the bigamy case went to trial. Easterday was sentenced to probation.
Easterday, who left Utah and is currently married to two women, told The Associated Press he believes the Browns are right to fear a bigamy prosecution.
"I know from experience that they do prosecute," Easterday said. "I think they should change the law over the entire country. Why it is that in some places a woman and a woman can be married, but a man can't have another wife?"
The Polygamy Blog: www.sltrib.com/blogs/polygblog