July 19, 2011
Sister Wives is a reality TV show that documents the life of a polygamist family living in Utah.
The family consists of patriarch 43-year-old Kody Brown, his wives Meri (39), Janelle (40), Christine (37), and Robyn (31), and their sixteen children (Kody is legally married only to Meri).
Unfortunately for the family, polygamy is a felony in Utah (contrary to a widely-held public belief).
The family knew this before agreeing to do the show, but both the family and TLC were under the impression that the state probably wouldn’t prosecute.
That didn’t really pan out, though: almost immediately after the first episode aired, Utah prosecutors commenced an official investigation for possible criminal prosecution.
Because of the prosecution, the family has fled to neighboring Nevada, but fears being extradited back to Utah for prosecution.
Now, the family is suing in federal court to have the Utah criminal provision stricken as unconstitutional.
The complaint lists several constitutional grounds, most of which could be successful independently.
It’s important to note why the provision is probably unconstitutional, though.
It’s not because an outright ban on multiple marriages is unconstitutional (the history and constitutionality of bigamy bans is discussed in an earlier post).
It’s because the Utah statute criminally sanctions those who engage in polygamy.
Lawrence, the landmark Supreme Court case ruling state criminal provisions against sodomy unconstitutional, is very pertinent here.
Relying on the fundamental right to privacy under the Due Process Clause of the Fourteenth Amendment, the Supreme Court found that the state couldn’t make private sexual conduct a crime where no minors or any lack of consent is involved.
That seems to fit Brown’s case almost perfectly, and a federal court will probably base its ruling on primarily this argument.
The complaint also includes Equal Protection, Free Exercise, Free Speech, Freedom of Association, and Establishment Clause arguments.
However, it doesn’t have any vagueness or overbroad constitutional arguments, which I find odd because either are better than any of the former arguments, considering the same law criminalizes all forms of cohabitation.
In any case, the law is clearly unconstitutional. And a constitutional challenge would almost certainly arise from attempts to enforce it.
So why did Utah choose to enforce it?
It could be because of increased pressure brought by the national attention of the show; or because the state wanted to capitalize on the show’s popularity; or simply because Utah wanted to enforce its laws.
Whatever the reason, the effects from a decision will reach far beyond Utah.
Since all 50 states have some form of criminal sanctions against polygamy, the overturning of Utah’s laws will lead to the invalidation of all other similar state laws.
While this will by no means recognize multiple marriages as valid, it will be another nail in the coffin of states’ ability to regulate morality with criminal sanctions.