The Browns—the polygamist family at the center of TLC’s reality show “Sister Wives”—found a legal happy ending when a federal judge in Utah struck down portions of the state’s anti-bigamy law.
The Browns sued in 2011 with pro bono assistance from George Washington University Law School professor and civil liberties attorney Jonathan Turley. Heading the family is Kody Brown, who is legally married to one woman but also lives with three additional women as his spiritual wives. Together, the family has 17 children.
Utah authorities began investigating the Browns in 2010 after the television show first aired. The Browns subsequently moved to Nevada, although no charges ever were filed. Barring an appeal, the chances for charges appeared precluded on Dec. 13, when U.S. District Judge Clark Waddoups struck down a provision of Utah’s law banning cohabitation.
The National Law Journal spoke with Turley about the case and what it means for the Browns and other families. His answers have been edited for length.
NLJ: How long have you been working on this case? Do you know how many hours you’ve spent on it?
Jonathan Turley: I don’t know how many hours it has been, but I’ve been representing the Browns for the past three years. After the show went on air on TLC, prosecutors publicly opened a criminal investigation and stated that the Browns were committing felonies every week on TV. What followed was a rather intense two years, where the state was desperately looking for any possible criminal act or evidence of abuse.
They couldn’t find any. The police found they [the Browns] are as they appear on TV—an otherwise well-adjusted family. They simply have a different family structure than most in the country. The prosecutors continued to assert that the family itself was a criminal enterprise because it was a plural family. I decided to file in federal court challenging the underlying statute.
NLJ: How would you describe the litigation process?
Turley: It was two years of rather intense litigation. The government tried three times to have the case dismissed. It challenged first on standing, which has been the most common reason for denying past challenges. It failed. The government then tried on mootness. It came into court with an affidavit promising not to prosecute the Browns. That also failed. Finally, its move for summary judgment was denied in the same opinion our summary judgment was granted. It’s been a long and hard road.
NLJ: In a nutshell, what does this ruling mean?
Turley: There are a lot of misconceptions about that. In fact, the court did exactly what we requested. From the outset, we argued that we were not asking for the recognition of plural marriage. Rather, we were asking for the decriminalization of cohabitation. The cohabitation provision affects a much broader array of relationships than the type of plural family like the Browns. It actually covers everything from adulterous relationships and group homes to polyandrists [women who have multiple husbands] to polyamorists. There’s a great variety of plural relationships in the country, most of which would be presumptively criminal under this law.
We challenged the law under nine different grounds. The judge only needed two. He ruled that the law violated the freedom of religion as well as the due process clause. By striking the language of the law, the court decriminalized polygamy as well as, more generally, cohabitation in Utah. To put it simply, polygamy is now lawful in Utah. That doesn’t mean it’s a recognized form of marriage, but it is lawful like any other relationship between consenting adults.
NLJ: What does this mean for the Browns?
Turley: Obviously, it means a great deal. Very few Americans can imagine what it’s like to have the government declare their family to be a criminal enterprise. Very few Americans have to fear that they will be prosecuted or have their children taken away simply because of how they choose to live as a plural family. This law has dangled over the heads of plural families like a Damocles sword for decades. For the Browns, it obviously was a much more imminent threat, given the statements of the prosecutors after their show aired. The Browns were very emotional when I told them on Friday night that they had prevailed.
It also will have other effects. There are tens of thousands of plural families in Utah and outside the state. Those families in Utah will now be able to walk openly in their communities as a plural family. They will be able to publicly be what they are in private. They won’t have to live two lives.
NLJ: Do you think the state will appeal?
Turley: I hope the state will reconsider [threats to appeal] and seriously read this opinion. It’s a 91-page opinion and a magnificent decision. In my view, it’s a true profile in courage by Judge Waddoups. He talks about how difficult this was and how he spent months considering the implications of striking down the cohabitation law.
He ultimately said it would have been easy to turn the Browns down, but that it would not be the legal or moral thing to do. I don’t know how anyone could read this opinion and not be persuaded by his logic. The whole point of this case is that we can’t have freedom of religion and due process if we want to exempt disfavored groups. Privacy is not some spectrum that applies differently to different people. … The state will be on the wrong side of the law if they take this case to the [U.S. Court of Appeals for the Tenth Circuit].
NLJ: You actually had some of your George Washington law students involved, right?
Turley: My local counsel is actually one of my former students, Adam Alba, and he is a public defender in Salt Lake City. I haven’t had other attorneys—when I do civil liberties litigation, I assemble volunteer teams at the law school. That’s what we did in the “Sister Wives” case. We had about four law students involved.
NLJ: Polygamy is obviously a controversial subject. Did you receive personal criticism or attacks from people who opposed your representation of the Browns?
Turley: I’ve received a lot of angry calls and letters, but that comes with doing civil liberties litigation. I view being a law professor as giving me a great responsibility to take cases that may be unpopular. I try to speak with people who call or write in these irate messages. It’s always funny when I actually call them back. They’re often surprised. I’ve found that if you speak with them, some will actually reconsider.