MARY LOUISE KELLY, host:
Tomorrow, a semi-famous family will challenge Utah's anti-bigamy law in federal court. The Brown family, which consists of one husband, four wives and 16 children, stars in the reality TV show "Sister Wives." They say the state cannot prosecute them for arranging their family life as they want. And they say a Supreme Court precedent backs them up. NPR's Barbara Bradley Hagerty�has their story.
BARBARA BRADLEY HAGERTY: They made their debut on September 26, 2010.
(Soundbite of TV show, "Sister Wives")
Mr. KODY BROWN: My name is Kody Brown, and you've got to meet my family. I'm a polygamist. But we're not the polygamists you think you know.
HAGERTY: Brown and his four wives knew they were taking a risk when they signed the deal with the network TLC, but Robyn Brown, who is wife number four, said they wanted to make a point.
Ms. ROBYN BROWN: It's okay for us to live this way, honestly. I'm sorry but this is a nation of freedom of choice. We should have this choice, and I want my kids to know that.
HAGERTY: Well, it's actually not okay, under Utah law. Now, Kodi Brown is legally married to only one wife, the three others are his so called spiritual wives. But the law says it's a crime if a married person purports to marry or cohabits with another person. Prosecutors say they'll decide whether to bring charges in the next two or three weeks.
In the meantime, the Browns have moved to Nevada and tomorrow they will sue in federal court. Their lawyer, Jonathan Turley, says the state is persecuting model citizens for living out their religious views.
Mr. JONATHAN TURLEY (Attorney): There is no allegation of child abuse, no allegation of child brides, no allegations of so-called collateral crimes, but prosecutors have stated publicly that they believe the family is committing a felony every night on television.
HAGERTY: Turley says prosecutors look the other way when it comes to non-polygamous relationships.
Mr. TURLEY: You can have multiple lovers, you can have adulterous affairs and not be subject to prosecution, but the minute you refer to her as your spiritual wife you become a potential criminal defendant.
HAGERTY: This isn't about personal rights, says Marci Hamilton. It's about a state's ability to regulate marital relationships. Hamilton, an expert on polygamy law and a professor at Cardozo School of Law, says there's a mountain of evidence that polygamy is bad for women and children. Just do the math, she says: A man who has multiple wives will have to marry younger, often underage brides as he runs out of women his age.
Professor MARCI HAMILTON (Cardozo School of Law): This isn't a lifestyle choice. This is a culture in which men must rule and women are not equal. Three women are equal to one man, nine women are equal to one man and the children are second-class citizens.
HAGERTY: Hamilton says there have been more than a 100 challenges to polygamy laws including in Utah and all have failed.
But Turley may have powerful ammunition. The U.S. Supreme Court's 2003 decision, Lawrence v. Texas. In that case, the majority ruled that the state could not prosecute people for private, consensual sexual behavior, in this case, gay sex. Turley's case is exactly what conservatives have feared and Justice Antonin Scalia predicted. In his scathing dissent, he said the ruling calls into question ANY law trying to rein in quote "immoral and unacceptable sexual behavior."
Justice ANTONIN SCALIA (U.S. Supreme Court): That is the same interest furthered by criminal laws vs. fornication, bigamy, adultery, adult incest, bestiality and obscenity.
HAGERTY: Scalia was right, says Robert George.
Professor ROBERT GEORGE (Constitutional Law, Princeton University): Under this principle, it really is anything goes.
HAGERTY: George teaches constitutional law at Princeton University.
Prof. GEORGE: State laws to protect public morality by prohibiting what has been regarded as immoral sexual conduct, just can't stand constitutional scrutiny. And so if they accept the logic of their own principles, then Turley is going to win this in a knockdown.
HAGERTY: Not so, says Marci Hamilton. Sure, the Court ruled that private sexual conduct between consenting adults is protected, but she says...
Prof. HAMILTON: The court does not say that every activity involving sex is now immune from regulation.
HAGERTY: Hamilton doesn't think this case will go very far. But a ruling in Turley's favor would affect tens of thousands of people in polygamous families.
Barbara Bradley Hagerty, NPR News.
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