'Sister Wives' family challenges Utah bigamy law
FILE - In this undated file photo provided by TLC, Kody Brown, center, poses with his wives, from left, Janelle, Christine, Meri, and Robyn in a promotional photo for TLC's reality TV show, "Sister Wives." A Utah county attorney says he will not pursue criminal charges against this polygamous family made famous by a reality TV show. A federal judge is set to decide whether to allow a lawsuit to move forward that challenges the constitutionality of Utah's bigamy law. (AP Photo/TLC, Bryant Livingston, File)
SALT LAKE CITY (AP) — Kody Brown and his four wives just want to live like any other family — free from the threat of being tossed in prison.
But in Utah, just claiming to have more than one wife is a third-degree felony punishable by a sentence of up to five years.
The polygamous family, stars of the TLC show "Sister Wives," has sued Utah and the county they fled from, hoping to persuade a federal judge to overturn the state's bigamy law as unconstitutional.
The case could potentially decriminalize a way of life for tens of thousands of Mormon fundamentalists practicing polygamy, most of whom live in Utah.
The state, meanwhile, has publicly said it won't prosecute consenting adult polygamists unless there are other crimes involved, but insists the law doesn't overreach.
"It is not protected under religious freedom because states have the right to regulate marriage," said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff.
Utah County Attorney Jeff Buhman in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, claiming the Browns no longer have standing since they aren't subject to prosecution.
During a hearing Wednesday in federal court in Salt Lake City, a judge repeatedly asked state prosecutors why he shouldn't allow the case to move forward.
U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was "simply a ruse to avoid having the issue reviewed."
"What's the policy reason behind this ... that would give assurances that similar prosecutions will not be pursued in the future?" Waddoups asked. "What about the next couple?"
Assistant Attorney General Jerrold Jensen, arguing on behalf of Utah County, said there is none, but noted there are at least 30,000 practicing polygamists in Utah.
"They are not being prosecuted," Jensen said. "Utah County does not want to prosecute people for the practice of polygamy, period."
Jensen could not say the threat of prosecution of other polygamous families had been entirely removed, but reiterated state policy.
"The plaintiffs here are not going to be prosecuted therefore the case is moot," he said.
Earlier this year, Waddoups released Shurtleff and Gov. Gary Herbert from the case, citing the state policy that polygamists won't be prosecuted for violating the bigamy law alone. He allowed the case to continue against the county because, at the time, prosecutors there had not made the same declaration.
The Browns' attorney, Washington, D.C., constitutional law professor Jonathan Turley, argued Brown and his wives — Meri, Janelle, Christine and Robyn — remain victims and continue to live under the stigma of being considered felons.
They fled Utah last year and are now living in Nevada.
Turley also questioned both the state and county policies, noting neither is legally binding.
"It does not guarantee that the Browns or anyone else won't be prosecuted," Turley said Wednesday, adding that the policies are "clearly an effort to evade a ruling in this case."
The judge said he would decide later whether to allow the case to continue.
Turley argues that under previous U.S. Supreme Court rulings, such as one that struck down Texas' sodomy law, private intimate relationships between consenting adults are constitutionally protected.