In December 2013, we reported on how a Utah federal judge strikes down key part of anti-polygamy law in a challenge by the  Brown family of “Sister Wives” TV fame:

The legalization of polygamy followed logically from the legal arguments against one man-one woman, as was predicted not just by me, but also by Professor Martha Nussbaum, one of the leading legal advocates for gay marriage, “Polygamy would have to be permitted.”

And it’s coming true in a small step, as a federal court in Utah, while not holding that polygamists were entitled to state-sanctioned civil marriage, nonetheless struck portions of Utah’s anti-polygamy laws banning polygamous “cohabitation” and polygamous “purported” marriages. The full decision is embedded at the bottom of the post….

In the ruling, the Court concluded as follows:

The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it. As a result, and to save the Statute, the court adopts the interpretation of “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.

The trial court decision did not survive appeal. Law Professor Jonathan Turley, who represents the polygamists, reports:

This afternoon, the United States Court of Appeals for the Tenth Circuit issued its decision in Brown v. Buhman, No. 14-4117, reversing the decision striking down the cohabitation provision of the Utah polygamy law. The opinion of the panel is attached below. The panel ruled entirely on standing grounds and did not address the merits of the constitutional violations committed in the case. As lead counsel in the case, I have been going over the opinion with our team including our local counsel, Adam Alba, as well as the Brown family. We respectfully disagree with the panel on its interpretation of the governing law and we will appeal the decision….

The panel did not reach any of the constitutional violations. Instead, it ruled that the district court should have dismissed the case after [Prosecutor] Buhman changed his policy and said that he had no further intention to prosecute the Browns.

To put it in simple terms, Federal Courts can only become involved, among other things, when there is an actual “case or controversy.” Federal courts can’t just issue opinions on cases for the fun of it — there has to be an actual, real dispute pending.

By dropping the prosecution, the real case or controversy arguably disappeared. While Turley in his post argues the appeals court was wrong in this case to find that the dispute was moot, the 10th Circuit managed to avoid what might have been a landmark case on whether the Supreme Court’s same-sex marriage logic applied also to polygamists.


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