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The family at the center of the hit TLC reality show Sister Wives — which chronicles the lives of one Utah man and his four “plural wives” along with their combined 16 children — filed a lawsuit in federal court on July 13 challenging the constitutionality of Utah’s anti-bigamy law. The family is headed by Kody Brown, who is legally married to one woman but also lives with three others as his spiritual wives. Utah authorities began investigating the family after the show first aired in 2010. No charges have been filed against the family, which has since moved to Nevada, but it is illegal in Utah for unmarried people to cohabitate under the guise of marriage. The Browns are represented pro bono by George Washington University Law School professor Jonathan Turley and a team of students and recent graduates. Turley spoke with The National Law Journal about the lawsuit and the family’s motivation to go to court. His answers have been edited for length. National Law Journal: How did you get involved in this case? Jonathan Turley: For years I’ve written on the subject of criminalizing private conduct by consenting adults. In some of those writings, I’ve dealt with polygamy. Like others, I’ve questioned the treatment of polygamists, particularly in the aftermath of Lawrence v. Texas [the landmark U.S. Supreme Court ruling that in 2003 struck down the sodomy law in Texas]. Before I filed this lawsuit, I was representing the Brown family in the ongoing criminal investigation by Utah authorities. After the Sister Wives show aired, Utah prosecutors announced that they were opening a criminal investigation into the family. One of the prosecutors later said she believed the family was committing a felony every night on television. I’ve represented them for about a year and a half. There has yet been no indictment. NLJ: How is this case different from pervious legal challenges to polygamy laws? J.T.: While many of us have questioned the constitutionality of these polygamy laws for years, the only individuals challenging the laws have been accused of crimes ranging from child brides to rapes to welfare fraud. As a result, there hasn’t been a particularly strong challenge, particularly in federal court. The Brown family represents the strongest case for challenging the polygamy law that I’ve seen. The Brown family has been under investigation for over a year and prosecutors admit that they have not found any evidence of child abuse or any crime. Once you strip away those types of allegations, what you have left is a family that’s different from my family and most of the families in Utah. But it’s their family. NLJ: What is the thrust of your legal argument? J.T.: What we’re arguing is that they have a right to live their lives according to their own values and their own faith. Justice [Anthony] Kennedy’s decision in Lawrence v. Texas represented a milestone for privacy. Justice Kennedy gave voice to the principle that consenting adults cannot be prosecuted for their lifestyle. What he said what that the case, involving a homosexual couple, did not involve any request to recognize their marriage or any allegation of crime. That’s the same situation in the Brown case. The Brown family has not asked for the recognition of their plural marriage. They have never asked for multiple marriage licenses, and they have not committed any crime. Our lawsuit expressly states that we are not challenging the Utah Constitution and its provision barring the recognition of plural marriage. This case puts into sharp relief the contradiction of how we deal with citizens in this country with regard to their private lifestyle and choices. In Utah, an individual can have multiple lovers, even adulterous lovers. Individuals can have children by multiple partners. Yet the moment that individual expresses a spiritual bond with those partners, they can be charged with co-habitation. That contradiction is raised in this lawsuit. NLJ: No charges have been filed yet against the family, so why take legal action now? J.T.: It’s a question I’ve heard before, but I always thought that question was curious. How would other Americans like to live under the constant threat of criminal prosecutions? How would other Americans like to live in a state that defines them, in the criminal code, as presumptive felons because of their family? This is a family that has been under a very public investigation for over a year. They are defined by state law as presumptive felons simply because they have a plural family. We believe that is sufficient standing to challenge the statute. It’s a rather bizarre thing to allow a state to categorize tens of thousand of families as felons, but argue that they don’t have a right to gain review in federal court. I expect that the [Utah] attorney general may well challenge on standing grounds to avoid review of the merits because he knows the basis of this law is highly questionable. NLJ: What are your predictions for the case? J.T.: We have anticipated a long battle. We are prepared to take this all the way to the Supreme Court if necessary. I believe that if a court reviews the merits of this case, it should find a very clear constitutional violation. Whether the courts will do that is very hard to say. We have a long process here. I remain hopeful that at the end of that process, these families will enjoy the same rights afforded to other families in the United States. Karen Sloan can be contacted at [email protected].

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