Brown v. Buhman: Bigamy Law Uncertainty

By Katie Coggins, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Browns are a polygamist family living in Las Vegas, Nevada who star in the TLC television series, “Sister Wives.”[1] Polygamy is a tenet of the Browns’ Apostolic United Brethren Church faith.[2] Kody Brown is legally married to his wife, Meri Brown, and “spiritually married” to his three other wives, Janelle Brown, Christine Brown, and Robyn Sullivan.[3] When the Browns’ TLC series began in 2010 the family resided in Lehi, Utah.[4] After the airing of the first episode, the Lehi police opened an investigation against the family because of their openly polygamist relationship.[5] Subsequently, the Utah County Attorney’s Office opened a case file on the Browns.[6] Out of fear of criminal prosecution, the Browns moved their family to Nevada.[7]

In Utah, polygamy may constitute a felony under the state’s bigamy statute.[8] The Utah bigamy statute reads: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” [9] Although polygamy and bigamy are similar, their definitions differ slightly. Bigamy is “the act of entering into a marriage with one person while still legally married to another.”[10] Polygamy is “marriage in which a spouse of either sex may have more than one mate at the same time.”[11] Hence, it is possible to simply be a polygamist and still violate the bigamy statute because the statute only requires a married person to cohabit with another non-spouse. The statute does not require a person to actually be legally married to multiple people to violate the statute.

Although bigamy is also illegal in Nevada (in addition to all fifty states), the Nevada bigamy statute does not have the same cohabitation prong.[12] Therefore, one reason the Browns moved to Nevada is probably because they would most likely not be prosecuted for religious cohabitation by Nevada.[13] However, the Browns’ move to Nevada did not affect Utah’s ability to prosecute the Browns as the statute of limitations for felonies in Utah is four years.[14]

The Browns brought suit against the Governor of the State of Utah, the Attorney General of the State of Utah and the Utah County Attorney, claiming that the Utah bigamy statute violated their First and Fourteenth Amendment rights.[15] The district court dismissed the case against the Governor and the Attorney General, concluding that the Browns did not have standing to bring an action against them.[16] The court held that the Browns lacked standing against the Governor and Attorney General because neither the Governor nor the Attorney General did anything to threaten the Browns with prosecution.[17] The court noted that the State of Utah actually had a policy to not prosecute for bigamy unless other crimes were also committed.[18] Furthermore, the Attorney General assured the Browns that they would not be prosecuted for participating in the Sister Wives series.[19]

However, the court held that the Browns did have standing against the Utah County Attorney’s Office.[20] The court concluded that the actions of the Lehi City Police Department and Utah County prosecutors directly targeted the Browns’ bigamous conduct.[21] Furthermore, the court noted that the Utah County Attorney’s Office did not have a policy, like the Attorney General’s policy, to not prosecute bigamy absent other crimes.[22] Therefore, the court held that the Browns faced a credible threat of prosecution by the Utah County Attorney’s Office.[23]

Soon after the district court’s ruling, the Utah County Attorney’s Office adopted a policy “under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse.”[24] In addition, the Attorney General stated that it was always the policy of the Attorney General’s Office to only initiate prosecutions under the bigamy statute against persons suspected of another crime, such as abuse, domestic violence, or welfare fraud.[25] Furthermore, the Attorney General stated that it was not the intent of the Attorney General’s Office to prosecute the Browns unless they were suspected of another crime.[26]

The district court reasoned that this was the Attorney General’s attempt to avoid review of the statute.[27] The court held that the cohabitation prong of the statute was unconstitutional because it had a “targeted effect on specifically religious cohabitation” and failed strict scrutiny under the Free Exercise Clause. [28] Furthermore, the district court held that the state had “no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue.”[29]

On appeal, the Tenth Circuit held that the Utah County Attorney policy rendered the Browns’ case moot because the Browns were neither induced to marry through misrepresentation nor suspected of committing a collateral crime.[30] The Tenth Circuit held that district court should never have proceeded on the merits of the case.[31] On January 23, 2017, the Browns’ petition for writ of certiorari was denied.[32] Now, it seems as if polygamists’ religious rights are up in the air.

Polygamist religious freedom has been an issue in the United States, especially Utah, since the mid-nineteenth century.[33] In fact, a condition on Utah entering the union was that polygamist marriages were to be banned forever.[34] This is largely due to the idea that polygamy was associated with African, Middle Eastern, and Asian cultures, which many Americans perceived to be inferior to European culture.[35] Furthermore, many believed that bigamy would degrade the Christian morals of the country, and introduce “barbarism” into white American society.[36]

Today, sexual abuse and incest are the primary concerns with polygamy.[37] On February 1, 2017, members of Utah’s House Judiciary Committee met to debate a bill that will amend Utah’s bigamy statute.[38] The bill amends Utah’s bigamy statute to read: “A person is guilty of bigamy when, knowing the person has a husband or wife or knowing the other person has a husband or wife, the person purports to marry and cohabitates with the other person.”[39] The proposed law seems to eliminate the issue of polygamists being prosecuted for religious cohabitation alone because a person must purport to marry and cohabitate with another person to violate the law, not simply cohabitate with another person.[40]

However, not all polygamists are happy with the proposed law. Members of different polygamist sects in Utah testified at the House Judiciary Committee meeting to express their views on the new bill.[41] Many proponents of the bill are in favor of the proposed law’s crackdown on sexual abuse.[42] The proposed law has harsher penalties for those who are convicted of bigamy in conjunction with sexual abuse.[43] Those who are in favor of the bill say that polygamist relationships hurt women and children.[44] Some who have left polygamist communities have said that polygamist communities “can be rife with welfare fraud and child abuse, sexual abuse and forced labor.”[45] One proponent of the new bill testified that as a polygamist, she was forced to marry her first cousin, who was also her nephew when she was only fifteen years old.[46] Others opposed to the bill testified that they were always members of polygamist families and had never experienced abuse.[47] Opponents argue that the new bill is still discriminatory, and not all polygamists should be lumped in with certain abusive sects.[48]

It will be interesting to see how this new law works out if it is passed. Although the “Sister Wives” have brought polygamy into the main stream, many still fear the existence of abuse within the polygamist community. Hopefully, Utah can find a way to crack down on abuse without attacking the sincerely held religious beliefs of the polygamist community.

[1] Brown v. Buhman, 822 F.3d 1151, 1155 (10th Cir. 2016).

[2] Id. at 1156.

[3] Id.

[4] Id. at 1156.

[5] Id.

[6] Buhman822 F.3d at 1156.

[7] Id.

[8] Utah Code Ann. § 76-7-101 (West, Westlaw through 2016 Fourth Special Session).

[9] Id.

[10] Definition of Bigamy, Meriam-Webster, https://www.merriam-webster.com/dictionary/bigamy (last visited Feb. 3, 2016).

[11] Definition of Polygamy, Meriam-Webster, https://www.merriam-webster.com/dictionary/polygamy (last visited Feb. 3, 2016).

[12] Kaitlin R. McGinnis, Sister Wives: A New Beginning for United States Polygamist Families on the Ever of Polygamy Prosecution?, 19 Vill. Sports & Ent. L.J. 249, 258 (2012); Nev. Rev. Stat. Ann. § 201.160 (West, Westlaw through 2015 Regular Session and 2016 Special Session).

[13] McGinnis, supra, note 12.

[14] McGinnis, supra, note 12; Utah Code Ann. § 76-1-302 (West, Westlaw through 2016 Fourth Special Session).

[15]  Buhman, 822 F.3d at 1155.

[16] Brown v. Herbert, 850 F. Supp. 2d 1240, 1244 (D. Utah 2012).

[17] Id. at 1249.

[18] Id. at 1249.

[19] Id. at 1249.

[20] Id.

[21] Herbert, 850 F. Supp. 2d at 1250.

[22] Id. at 1251.

[23] Id. at 1252.

[24] Buhman, 822 F.3d at 1155.

[25] Id. at 1157.

[26] Id. at 1157.

[27] 822 F.3d at 1159.

[28] Brown v. Buhman, 947 F. Supp. 2d 1170, 1190 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[29] Id.

[30]  Buhman, 822 F.3d at 1155.

[31] Id.

[32]  Buhman, 822 F.3d 1151, cert. denied, 2017 WL 276182 (U.S. Jan. 23, 2017) (No. 16-333).

[33] Buhman, 947 F. Supp. 2d at 1183 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[34] Id. at 1183.

[35] Id. at 1183.

[36] Id. at 1187-88.

[37] McGinnis, supra, note 12.

[38] Nate Carlisle, Hearing on Utah Polygamy Bill Focuses on Sex Crimes, Other Offenses, Salt Lake Trib. (Feb. 1, 2017 8:42 PM), http://www.sltrib.com/home/4886848-155/hearing-on-utah-polygamy-bill-focuses.

[39] H.B. 281, 61st Leg., Gen. Sess., (Utah 2016).

[40] Associated Press, Polygamous Families Protest Bigamy Law at Utah Capitol, Times Trib. (Feb. 11 2017) http://thetimes-tribune.com/news/polygamous-families-protest-bigamy-law-at-utah-capitol-1.2153676.

[41] Carlisle, supra, note 38.

[42] Carlisle, supra, note 38.

[43] Associated Press, supra, note 40.

[44] Associated Press, supra, note 40.

[45] Associated Press, supra, note 40.

[46] Carlisle, supra, note 38.

[47] Carlisle, supra, note 38.

[48] Carlisle, supra, note 38.

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