Tenth circuit reverses the bigamy-law win

Utah's bigamy statute, Utah Code Annotated § 76-7-101 has recently been constitutionally challenged. The statute provides that (1) a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person, (2) bigamy is a felony of the third degree, (3) it shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry. Brown v. Buhman, 14-4117, 2016 U.S. App. LEXIS 6571 (April 11, 2016).

Kody Brown, a former resident of Lehi, Utah, was legally married to Meri Brown. He was also "spiritually married"—but not legally married—to Janelle Brown, Christine Brown, and Robyn Sullivan, who too considered themselves committed to him as 'sister wives.' The association was in due respect to the Apostolic United Brethren Church (AUB), which views polygamy as "a core religious practice."

This plural family was aired in a reality television show that explored the daily issues and realities of a plural family. Subsequently, the Lehi Police Department publicly announced it was investigating the Browns for violations of the statute, following which the Utah County attorney’s office (“UCAO”) opened a case file on the family. The Brown then moved to Nevada in January 2011 in fear of being criminally prosecuted.

The Brown finally filed a suit in the U.S. District Court for the District of Utah alleging that the statute violated (1) their substantive due process right; (2) the Equal Protection Clause; (3) their right to the free exercise of religion; (4) their right of free speech; (5) their freedom of association; and (6) the Establishment Clause of the First Amendment.

Although the UCAO subsequently closed its file, thus adopting a policy, wherein a collateral crime essentially would be required to proceed in a bigamy case, the district court mistakenly granted a summary judgment in the family’s favor. The Tenth Circuit held that assuming the plaintiffs had standing initially to file the suit, the case became moot when the county attorney announced a policy that it would prosecute the crime of bigamy only if a victim was induced to marry through fraud or when there was also some type of abuse, violence, or fraud. The policy eliminated any credible threat that the plaintiffs would be prosecuted, and thus, the threat of a prosecution was so speculative that a live controversy no longer existed for the U.S. Const. art. III jurisdiction.

Also, the voluntary cessation exception to mootness did not apply because the county attorney's policy declaration was made under penalty of perjury, and thus, the risk that the county attorney would revoke or ignore the policy was insufficient to sustain a live case or controversy.

However, attorney for the family, Jonathan Turley is likely to appeal the decision, either by seeking en banc review by the full Tenth Circuit or to the Supreme Court.

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