Many are familiar with Kody Brown and his four wives from the TV show Sister Wives. If not, this is a polygamous family (which is why they got their own TV show) from Utah which then moved to Nevada to avoid potential criminal prosecution for polygamy. Technically, I believe Kody Brown has one legal wife filed with the state and contracts or “religious” marriages with three other women.
In Utah, polygamy is illegal – used to be legal when the Church of Jesus Christ of Latter Day Saints was populating the state – but as a condition for state hood Utah how to explicitly outlaw the practice. Tens of thousands of Utah residents still secretly engage in the practice of having multiple wives.
After gay marriage rulings swept the country and eviscerated the basis for a “traditional” marriage between one man and one woman, the Brown family sued to have the Utah law declared invalid. In Utah, not only are having multiple marriage licenses outlawed, but so can simple co-habitation that is effectively a plural relationship.
So, you can live with one person and have sex with then, but not two other people. (What is the government doing in people’s bedrooms anyway?)
The Utah federal district court agreed with the Browns, ruling the multiple marriage license and co-habitation provisions invaded the Brown’s rights of privacy and religious freedom. In effect, it legalized polygamy in Utah.
A court of appeal just tossed that ruling.
Did the court rule polygamy was illegal? No.
Did the court rule privacy was not invaded? No.
Did the court rule there was no invasion of religious freedom? No.
Instead, the court ruled that since a Utah prosecutor said he would not criminally prosecute the family for polygamy (unless they also did something else wrong) the Brown’s could not sue because they did not face actual criminal prosecution.
A law is on the books that makes people afraid to do something for fear of going to prison, even moving out of state, and they cannot sue to invalidate the law unless they are actually subject to criminal prosecution?
So now polygamy is illegal again in Utah, and in order to challenge the law you have to risk going to prison for many years.
That’s called intimidation. It creates a chilling effect. In the age of 5-4 Supreme Court rulings who can know what is ultimately constitutional anyway? You’re going to risk the rest of your life in prison based on a possible 5-4 vote? No one would do that.
Now, maybe I am not thinking this through correctly (which apparently is a problem, and bigger issue than I realized – and thank goodness for spell check to help get me through this post), and my head hurts just thinking about the ramifications (and it just hurts in general these days), but I guess it’s open season for the government to issue draconian and abusive laws. The laws can then be selectively enforced. If someone might overturn a law the government can just say it wasn’t going to enforce the law against them anyway and that shuts down their lawsuit. Meanwhile, everyone else cowers in fear from the law.
Is a law legal or not?
Every citizen should have the right to challenge whether a law is constitutional or not.
But who are we kidding – this country ceased being a free country long ago. You can only do what the government allows, and continual road-blocks are placed in front of anyone challenging government authority. Like the Browns.
Is there a promise or court order saying the Browns will never be prosecuted for polygamy? No. Even if there were just think of Bill Cosby. He was given a promise of no criminal prosecution years ago by a district attorney. A new one comes into office and decides to prosecute – conveniently after Cosby gave damaging deposition testimony only because he believed he was no longer subject to potential criminal prosecution. (Story here)
You cannot trust the government and those in power over your life. Just because one prosecutor said he would not try and send the Browns to prison does not mean another one, or the next one, will do the same. Just ask Bill Cosby, now forced to spend a fortune to try and avoid spending his last years in a prison cell.
The government should not be able to condition your ability to challenge a law by imprisoning you if you lose.