Sister Wives and the Law

Jenn Henry

Sister Wives is a reality television show following the Brown family. The Browns, as members of the Apostolic United Brethren, believe in and practice polygamy.

Kody Brown has four wives. Only his first, Meri, is legally married to him; the remaining three–Janelle, Christine, and Robyn–are “spiritual wives.” The family has seventeen children.

The show raises interesting questions about equality, feminism, and the reach of the law into private relationships. On the one hand, these are consenting adults in the privacy of their own homes. On the other, polygamy here is synonymous with polygyny. In a particularly memorable episode following Kody and Meri on their 20th anniversary dinner, Meri tries to explain her jealousy to Kody using polyandry as an analogy–instead of using his imagination to empathize, Kody expresses disgust.

But these ethical questions are not always front and center in your mind as you watch the show. Something about being invited in to the Brown home is comforting. The Browns appear kind and loving. Theirs is a bustling, gigantic family explaining the details of their daily lives and struggles.

The law entered the Browns’ story in a big way during the last episodes of Season Two. In October 2010, the Brown family learned that the Utah County Attorney has launched a bigamy investigation against them in the wake of their family’s openness about their lifestyle on the show (which premiered in September 2010). The Utah Attorney General announced it was launching a separate investigation. The Browns uprooted right around Christmastime in 2010 to escape the law of their jurisdiction, moving from Lehi, Utah, to Las Vegas, Nevada.

While polygamy is rare, an estimated 50,000 Americans still practice it. Most American polygamous families live in Utah, Colorado, or Arizona. It is a misconception that the Church of Jesus Christ of Latter-Day Saints, or “LDS” Mormons, believe in or practice polygamy today. In
1890, Utah’s statehood was conditioned on the state banning polygamy in its constitution (to the tune of “No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.” Emphasis added because wow, that semicolon is doing a lot of work in that sentence to connect two seemingly unconnected statements in a place where religion and polygamy have such a history. (Utah Constitution, Article III, Section 1).

Today, Utah has one of the nation’s strictest anti-bigamy laws. Utah Code section 76-7-101 does not only criminalize legally marrying more than one person, it criminalizes cohabitating or even purporting to marry another person while married. Under Utah law, bigamy is a felony offense. So the Browns moved to Nevada to change the body of law that will apply to them and the enforcement agency with authority to press charges against them.

Utah Attorney General’s spokesperson Paul Murphy explains, “[Bigamy] is not protected under religious freedom because states have the right to regulate marriage” (quoted in the Huffington Post). But where religious freedom–at least as defined under the Constitution’s First Amendment–and state law conflict, religious freedom wins; the Constitution trumps state law. This conflict may explain why the prosecutors have dropped the charges against the Browns. The Browns, with their lawyer Jonathan Turley of George Washington University, filed a lawsuit challenging the constitutionality of Utah’s bigamy law under the First and Fourteenth Amendments and 42 U.S.C. § 1983. A handful of cases have challenged Utah’s anti-bigamy law before, but none successfully.

The Browns’ lawsuit came before District Judge Clark Waddoups of the Utah District Court. A quirk of our system is that challengers to a law must have standing–that is, they must be able to show injury, or that they have been harmed by a particular law, or else their case is moot. Utah
County Attorney Jeff Buhman recently adopted a formal policy that his office will only enforce Utah’s anti-bigamy law if it occurs in conjunction with another crime or if a party to the marriage or relationship is under 18. This change means that charges will be dropped against the Brown family, rendering their case moot because they have no standing–they cannot show they have been harmed by the law. As Judge Waddoups recently asked, “Is the act of the Utah County attorney [in adopting this policy] simply an attempt to avoid the issue of what consenting adults can do constitutionally?”

Note (disclaimer?): Sister Wives will always hold a special place in my heart because it is the only thing I wanted to watch while studying for the bar exam. It somehow made it bearable to be cramming corporations law in that hotel of fear and trembling near the bar exam convention center.

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Image courtesy Royal Claddagh

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