Salt Lake City -- Reality TV polygamist Kody Brown and his wives are renewing their push for the U.S. Supreme Court to take up their polygamy case.
The U.S. Supreme Court is scheduled to discuss the case in conference on January 19, which could determine whether Brown v. Buhman is heard before the justices. If it is, it would be the first time in more than 100 years the nation's top court has considered a case that directly deals with plural marriage.
In a filing this week, Brown family attorney Jonathan Turley urged the court to grant their petition for certiorari. He made technical arguments about a split in circuit courts about when a case could be tossed, prohibiting it from being heard on the merits.
Shortly after appearing on their cable show "Sister Wives," Brown and his wives Meri, Janelle, Christine and Robyn, found themselves under investigation by Lehi police. They sued Utah, challenging the state's historic ban on plural marriage as infringing on their First Amendment right to free religion and an invasion of their privacy.
In 2013 -- a week before another judge struck down Utah's ban on same-sex marriage, U.S. District Court Judge Clark Waddoups struck down a portion of the state's anti-bigamy laws, making it no longer a crime for people to live together and "purport" to be married. The 10th U.S. Circuit Court of Appeals in Denver reversed the decision, siding with the state that the Browns did not face a real threat of prosecution.
The Utah Attorney General's Office argued that the U.S. Supreme Court should reject the Brown family's petition, citing a longstanding policy to not prosecute bigamy alone, but in concert with crimes such as welfare fraud, abuse and child-bride marriages. The state also argued that Utah was forced to ban the practice of polygamy as a condition of statehood.
Turley argued the appeals court got it wrong and the Browns face a threat of prosecution.
"The court of appeals’ decision was not based on a factual dispute over whether Respondent’s prosecution policy was irrevocable; indeed, the court accepted that it was not," he wrote. "Rather, the court concluded – contrary to its sister circuits – that irrevocability was not a legal requirement for mooting a case via voluntary cessation. Similarly, the court of appeals accepted the proposition that Respondent’s newly adopted prosecution policy may indeed have been tactically motived, but likewise dismissed this as immaterial."
The Utah State Legislature has a bill pending in the 2017 session that would attempt to "recriminalize" polygamy again. A similar bill died in last year's session.