More notes from the ‘Sister Wives’ court hearing
Published: January 18, 2013 02:00PM
Updated: January 18, 2013 02:57PM
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Francisco Kjolseth | The Salt Lake Tribune Heidi Mattingly Foster, formerly of the Kingston family, enters Federal court in Salt Lake City where a hearing was being held for arguments in the "Sister Wives" lawsuit challenging Utah's bigamy laws.

As we wrote in yesterday’s article, the latest court hearing over the “Sister Wives” lawsuit was surprisingly lively, even conversational.

And it was heated. Afterward Utah Assistant Attorney General Jerrold Jensen stood on the courtroom steps and said it probably didn’t go very well. He was apparently referring to Judge Clark Waddoups’ many questions about his case; for nearly 40 minutes Jensen and Waddoups butted heads over what exactly made polygamous relationships more dangerous than, say, a man having affairs with multiple women.

The conversation began as Waddoups grilled Jensen over fundamental rights. After several questions, Jensen said he believed marriage was a fundamental right but that polygamy was not.

“There is no court in this country that has held polygamy is a fundamental right,” Jensen said.

Waddoups countered by asking about a person’s private sexual behaviors, saying that Jensen seemed to lump those behaviors among fundamental rights as well. What then, Waddoups asked, was the difference between polygamy, which is illegal, and having multiple affairs, which is not.

“I don’t think there’s a fundamental right to have an adulterous relationship,” Jensen replied.

Waddoups then asked about the rational basis for criminalizing polygamy, to which Jensen said he could produce “thousands” of stories about the damage it had done in people’s lives. After the hearing, Jensen reiterated that point, saying the destructive consequences of polygamy in Utah were reason enough for it to be illegal.

One of the odder moments of the hearing happened later when Waddoups asked Jensen why the documents he filed were so brief. Evidently he only filed 11 pages, while attorneys for the Brown family filed more than 70. Jensen replied that he thought there was a limit on how many pages he could file, though Waddoups sternly said there was no limit on the pages.

George Washington University law professor Jonathan Turley — who is representing the Brown family in the lawsuit — spent considerably less time at the podium. He criticized Jensen’s reliance on stories of abuse by polygamists of women and children, saying he could come up with “tens of thousands” of stories of people who suffered but weren’t the product of polygamous relationships.

Turley added that his clients are evidence that there are “plural families where this type of abuse does not occur.”

Turley also hammered Jensen for relying on Reynolds v. United States. The Supreme Court case was issued in 1878 and determined that religion doesn’t get someone off the hook for criminal behavior like polygamy.

Turley accused the state of trying to “throw the ball all the way back to the 19th century” in order to rely on one of “the most vile and prejudicial cases the court has ever handed down.”

The Reynolds decision came at the height of the 19th century uproar over Mormon polygamy. The majority opinion made reference to “evil consequences that were supposed to flow from plural marriages.”

After Turley, Waddoups called Jensen back to the podium for a few more questions. Even though the Browns have already won the issue of whether they had standing to sue at all, Waddoups and Jensen again discussed whether the Browns could claim to be an injured party since they have never been prosecuted for bigamy.

“They were clearly threatened” with prosecution, Waddoups said.

“Well, kind of,” Jensen replied.

Waddoups closed the hearing by thanking both parties and saying, “It has been invigorating, and mostly helpful.”

ncarlisle@sltrib.com

Twitter: @natecarlisle

jdalrymple@sltrib.com

Twitter: @jimmycdii