Kody Brown & his 4 Sister Wives

By:  Timothy P. Flynn

Kody Brown, star of the reality-television series Sister Wives, has another reason to go to the bank beside his popular television show.  Late Friday afternoon, a federal judge struck a portion of Utah's 1973 anti-polygamy law in the Browns' federal law suit against the State of Utah.

Judge Clark Waddoups released a 90-page decision in the case; a virtual tour de force of the law of privacy, the First Amendment, marital law and polygamy within the Mormon Church in Utah.  In striking down the Utah law, Judge Waddoups emphasized the Browns' right to privacy in the context of his First Amendment right to the free exercise of religion.

Interestingly, Brown is not a Mormon but a member of a religious sect that believes in "religious cohabitation".

The decision cites to a series of landmark SCOTUS decisions on marital law, starting with Reynolds vs United States, which outlawed polygamy in the US back in 1879.  Judge Waddoups' rationale relied heavily on Lawrence vs Texas, the 2003 case that struck anti-sodomy laws as unconstitutional, and Griswold vs Connecticut, the seminal case for the right to privacy in the boudoir for consenting adults.

Notably absent from the Court's analysis was any citation to the United States vs Windsor same-sex marriage decision.  The Windsor Court's focus was on equal protection and federal benefits; Judge Waddoups, on the other hand, focused on substantive due process and the right to privacy under the First Amendment.

Both cases evidence a willingness on the part of the federal judiciary to re-examine the constitutionality of once prohibited relationships, particularly in the context of the marriage contract.

The Browns' lawyer, George Washington University Law Professor Jonathan Turley, declared on his web site that the ruling was a major constitutional breakthrough in the protection of individual rights.  Professor Turley told the NYT that the ruling was more about privacy rights than polygamy, opining that polygamists and gay couples have a common interest: "the right to be left alone as consenting adults."

If Utah appeals, the case could get some legs and wind up on the SCOTUS docket in a few terms.  We here at the Law Blogger will keep on eye on this interesting case as the definition of "marriage" continues to evolve.

Post Script:  Here is a link to the National Law Journal's interview with the Browns' lawyer.  To dig deeper, here is the SCOTUSBlog post on this ruling.

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