Courts • Definition of a polygamous relationship discussed at lawsuit hearing.
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It was like the arguments over polygamy people have had in coffee shops, bars and on Internet message boards. And maybe like the arguments people had as Utah was seeking statehood.
But this argument happened Thursday in a federal courtroom, where lawyers for the state of Utah and for the Brown family from the reality show "Sister Wives" were both asking Judge Clark Waddoups to make a summary judgment in a lawsuit challenging Utah's polygamy ban.
The polygamous Brown family is suing to strike down the statute that makes bigamy a third-degree felony. A summary judgment would likely end procedures in the lower courts and ignite what promises to be a lengthy appeals process for both sides.
The Browns did not attend the hearing. Their attorney, George Washington University law professor Jonathan Turley, contends they are still at risk of being prosecuted in Utah.
As the hearing proceeded, Waddoups zeroed in on the definition of a polygamous relationship. Posing a hypothetical question he asked what the difference was between a polygamous relationship and an unmarried man who chooses to have intimate relationships with three women.
After a series of increasingly heated exchanges, Assistant Utah Attorney General Jerrold Jensen replied that a polygamous relationship is different. He said it was defined by people representing themselves as married.
"I think it's the representation that they make to the world," Jensen said.
Waddoups questioned whether the state had created an arbitrary standard for prosecuting relationships.
"The law has to draw a line somewhere," Jensen argued.
"They have to be rational lines," Waddoups shot back.
Waddoups also asked how society benefited by criminalizing polygamous relationships. Jensen claimed polygamy in Utah was "replete" with tales of abuse against women and children unique from what is seen in monogamous relationships in which the partners aren't married.
"Fourteen-year-old girls of illegitimate unions are not forced to marry," Jensen said. "Fifteen-year-old boys of illegitimate unions are not dumped on the streets of Salt Lake and Las Vegas and Phoenix to fend for themselves."
Both of those statements appeared to be references to practices of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. The Browns belong to the Apostolic United Brethren, a polygamous group found along the Wasatch Front.
Walter Bugden, an attorney for convicted FLDS leader Warren Jeffs, was among about 40 people who watched the arguments in the gallery. Some polygamists also watched, including Valerie and Vicki Darger, who have appeared with the Browns on "Sister Wives." Heidi Mattingly Foster, who fought a lengthy child custody battle with her husband, John Daniel Kingston, attended the hearing, too.
Waddoups said he wondered if Utah's bigamy statute was created to "stamp out a religious practice."
Jensen said that religion clearly was a part of past anti-polygamy laws, but also argued that every state has laws that ban polygamy.
Waddoups questioned Jensen for about 40 minutes. Waddoups questioned Turley for about half that.
Turley criticized the states' reliance on stories and anecdotal evidence to say polygamy fostered abuse.
"I can give stories in the tens of thousands in monogamous marriages where abuse has occurred," Turley said.
Turley went on to argue Utah has a unique bigamy statute because it makes it illegal for married people to cohabitate with adults who aren't their legal spouse.
"Other states focus on multiple marriage licenses," he said.
As the hearing closed, Waddoups called the afternoon's discussion "invigorating." He did not indicate when he would rule.
Prior to the hearing, Kristyn Decker, a former polygamous wife who is now an opponent of polygamy, said outside the courthouse that if polygamy is decriminalized "the human rights violations that have gone on for so long will just continue."