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The family of Kody Brown on Wednesday answered Utah's appeal to reinstate a ban on polygamy, and the family's brief is notable for what's there now that wasn't before.
The Browns' attorney Jonathan Turley wages many of the same arguments that were successful in the lower court. But now Turley also cites recent rulings affirming same-sex marriage.
That includes the U.S. Supreme Court case of Obergefell v. Hodges, in which the court upheld the fundamental right of same-sex couples to marry, and Kitchen v. Herbert, the case that brought same-sex marriage to Utah. Turley also cites a Supreme Court case that decriminalized all gay sex as sodomy, Lawrence V. Texas.
"From the rejection of morality legislation in Lawrence to the expansion of the protections of liberty interests in Obergefell, it is clear that states can no longer use criminal codes to coerce or punish those who choose to live in consensual but unpopular unions," Turley wrote in his answer to Utah's appeal.
When U.S. District Court Judge Clark Waddoups overturned Utah's ban on polygamy in December 2013, same-sex marriage wasn't mentioned in the ruling.
The Browns, known for the television show "Sister Wives," want the U.S. 10th Circuit Court of Appeals to uphold Waddoups' ruling. Utah appealed to have it overturned. The state has argued that polygamy is inherently harmful to women and children and that the Browns have not suffered from the law, because they haven't been prosecuted.
The Browns lived in Lehi during the first season of their show then moved to Las Vegas after the Utah County attorney began a criminal investigation.
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The 10th Circuit has not scheduled oral arguments for the case.