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Appeals court strikes down ruling that decriminalized polygamy in Utah

‘Sister Wives’ lose • An appellate court overturns the earlier federal judge decision deeming state bigamy law unconstitutional.

Scott Sommerdorf | The Salt Lake Tribune Meri Brown, left, from the TV program "Sister Wives," carries on a conversation with a friend near the starting line of the 5K run to benefit Holding Out Help, a group that helps people leaving polygamy. The run started at 9 a.m. from Draper City Park, Saturday, Sept. 22, 2012.

A federal appeals court Monday struck down a judge's ruling that decriminalized polygamy in Utah, saying the lawsuit brought by members of the "Sister Wives" reality TV family was moot because they faced no credible threat of prosecution.

The decision reinstates third-degree-felony penalties for the cohabitation prong of Utah's bigamy law, which had been deemed unconstitutional by a federal judge.

Kody Brown and his four wives — Meri, Janelle, Christine and Robyn — sued Utah and the Utah County attorney's office in Salt Lake City's U.S. District Court in 2011, alleging the state's bigamy law violated their constitutional right to privacy by prohibiting them from living together and criminalizing their sexual relationships.

Formerly of Lehi, the family, which practices polygamy for religious reasons, moved to Nevada to avoid prosecution after being investigated by the Utah County attorney's office and police.

Under Utah law, people are guilty of third-degree-felony bigamy if they hold multiple marriage licenses or if, when already married, they cohabit with another consenting adult in a marriagelike relationship.

In a landmark 2013 decision, U.S. District Judge Clark Waddoups struck down the cohabitation section of the law, saying it forced the Browns to leave Utah and violated their rights to privacy and religious freedom.

Such constitutional questions, however, were not considered by the Denver appeals court — nor should they have been by Waddoups — wrote a three-judge panel of the 10th U.S. Circuit Court of Appeals.

Instead, the judges said, the Browns' lawsuit should have been tossed out in 2012 after Utah County prosecutors office announced that it had adopted a policy only to target polygamists for bigamy when there is also evidence of other collateral crimes, such as fraud or abuse.

"The declaration rendered the threat of prosecution so speculative that a live controversy no longer existed," according to the appeals court ruling.

Therefore, the ruling states, the Browns had no right to sue.

The decision sends the case back to Utah and orders Waddoups to vacate his 2013 ruling and dismiss the lawsuit.

Utah Attorney General Sean Reyes said in a written statement that he was pleased with the ruling.

"Similar to our own office policy, Utah County only prosecutes bigamy crimes against those who induce marriage under false pretenses or if there is a collateral malfeasance, such as fraud, domestic abuse, child abuse, sex abuse or other abuse," Reyes said. "As a result of this policy, the 10th Circuit found that there is no harm to the Browns."

Reyes added that he understands "the desire to decriminalize cohabitation by those otherwise law-abiding citizens living in such households."

"We want them to come out of any shadows to report crimes, avoid abuse and continue to live peaceful and productive lives," Reyes said. "We have worked with them in the past to those ends. And we have not used our scarce resources to prosecute them unless there is evidence of violence, fraud or corruption."

The Browns are disappointed by the ruling and plan to appeal, either through a petition for a review by the full panel of judges on the Denver court or by filing directly to the U.S. Supreme Court, the family's Washington, D.C.-based attorney Jonathan Turley said.

"The underlying rights of religious freedom and free speech are too great to abandon," Turley said in a statement posted on his blog. "Utah is a state founded by courageous citizens seeking these very protections from government abuse and religious inequality. … The decision today only deepens [the Brown family's] resolve to fight for those same rights."

An estimated 38,000 polygamists live across the Intermountain West, according to Utah polygamy advocates. Plural marriage was an early tenet of The Church of Jesus Christ of Latter-day Saints. The mainstream church officially abandoned polygamy in the 1890s as a condition of Utah statehood.

jdobner@sltrib.com

Jerry Henkel | The Associated Press Kody Brown sits with his wives in July at one of their homes in Las Vegas. They are the polygamist family featured on TLC's "Sister Wives" program. Pictured are: top row, Janelle, left, and Christine; bottom row, Meri, left, Kody and Robyn.

| Tribune File Photo Left to right: Kody Brown and his four wives, Janelle Brown, top, Robyn Brown, Christine Brown and Meri Brown, pose for a portrait at the Downtown Mariott in Salt Lake City, on Friday, Sept. 24, 2010. The family are the main focus of a TLC reality show.

| Courtesy Janelle, from left, Christine, Kody Brown, Meri and Robyn, the Utah polygamist family in the new TLC series, "Sister Wives."

Joe Pugliese | TLC Kody Brown, right, with "sister wives" Christine, left, Meri, Robyn and Janelle. The Brown family says Utah's bigamy statute is unconstitutional and is suing the state.

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