The polygamous family featured on cable television's "Sister Wives" has filed a federal challenge to the Utah bigamy law that makes their lifestyle illegal.
Attorney Jonathan Turley filed the lawsuit in Salt Lake City's U.S. District Court on Wednesday on behalf of Kody Brown and his four wives — Meri, Janelle, Christine and Robyn. Kody Brown is only legally married to Meri Brown.
The lawsuit asks a federal judge to declare Utah's bigamy statute, unconstitutional. Under the law, it is illegal for unmarried persons to cohabitate, or "purport" to be married. A person is also guilty of bigamy if they hold multiple legal marriage licenses.
The third-degree felony is punishable by up to five years in state prison. Both men and women can be prosecuted under the law, which also applies to unmarried, monogamous couples that live together.
Like most polygamists in Utah, Brown married the other three women only in religious ceremonies and the couples consider themselves "spiritually married."
Formerly, of Lehi, the Browns belong to the Apostolic United Bretheran, a fundamentalist church that practices polygamy as part of its faith.
The Browns and their 16 children moved to Nevada in January after Utah authorities launched a bigamy investigation. No charges were ever filed, but Tuesday, Utah County Attorney Jeff Buhman said the investigation is ongoing.
Turley, a law professor at George Washington University in Washington D.C., said the lawsuit doesn't aim to challenge Utah's right to refuse to recognize plural marriage, nor are the Browns seeking multiple marriage licenses.
"What they are asking for is the right to structure their own lives, their own family, according to their faith and their beliefs," he said at a news conference outside the federal courthouse.
Turley said the focus of the lawsuit is really privacy — not polygamy — and follows the principles of lawsuits like Lawrence v. Texas, the landmark 2003 U.S. Supreme Court case that struck down Texas' sodomy law and held that private intimate relationships between consenting adults was constitutionally protected.
The lawsuit contends Utah law violates an array of constitutional rights, including freedom of religion, free speech, due process and equal protection.
"There's a host of constitutional problems when a state goes into a family and says your family has to look like ours. You have to live your life according to our values and our morals," Turley said.
Turley said the Browns and other polygamous families shouldn't have to live under the threat of a law that makes them "presumptive criminals" simply because of their family structure.
"The question is, in this country is whether you can have a family that's different," he said. "We're going to try to see if we can secure the same rights for the Browns as other families enjoy."
In the past, Utah Attorney General Mark Shurtleff had said his office would not prosecute polygamy between consenting adults, because it was focused on polygamy-related crimes like child abuse and underage marriage.
On Tuesday, however, his spokesman, Paul Murphy said the state is prepared to defend its bigamy law.
Utah has not prosecuted a polygamist for bigamy since 2003, when former Hildale police officer Rodney Holm was convicted of bigamy and unlawful sexual conduct with a minor for entering a religious marriage with a 16-year-old girl when he was already married to her sister. Holm was 32.
He served a year in jail and probation.
Holm, a member of the southern-Utah based Fundamentalist Church of Jesus Christ of Latter-day Saints, argued that a ban on polygamy violated his constitutional right to practice his religion.
The Utah Supreme Court upheld the conviction in 2006, although in a dissenting opinion, the state's chief justice said the state unfairly applied the law to polygamists and "oversteps the lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults."
The U.S. Supreme Court also denied an appeal from Holm in 2007. The high court banned the practice of polygamy, even in the context of religion, in 1879.
Polygamy in Utah and across the Intermountain West is a legacy of the early teachings of Joseph Smith, founder of The Church of Jesus Christ of Latter-day Saints. Mormons abandoned the practice of plural marriage in the 1890s as a condition of Utah's statehood.
An estimated 38,000 self-described Mormon fundamentalists continue the practice, believing it brings exaltation in heaven. Most keep their way of life a secret out of fear of prosecution, although over the past 10 years an advocacy group made up mostly of polygamous women has worked to educate the public and state agencies in Utah and Arizona about the culture.
"This is a good time for the lawsuit, we've tried to set that stage for this for 10 years," said Anne Wilde, co-founder of the advocacy group Principle Voices. "We've really tried to help people understand that this not a criminal lifestyle among consenting adults."
Jennifer Dobner can be reached at www.twitter.com/JenniferDobner