SALT LAKE CITY — A federal judge Friday ruled there is sufficient evidence to allow the polygamous family of the TLC show "Sister Wives" to pursue a lawsuit contesting the constitutionality of Utah's bigamy law.
However, U.S. District Judge Clark Waddoups determined that Kody Brown and his four wives — Meri, Janelle, Christine and Robyn — can only sue Utah County Attorney Jeffrey Buhman. Their claims against Utah Gov. Gary Herbert and Attorney General Mark Shurtleff were dismissed.
Buhman threatened to prosecute the Browns after their television reality show "Sister Wives" debuted in September 2010, but his office has not filed charges. Brown moved his wives and 16 children from Lehi to Nevada in January 2011.
The family filed a lawsuit against Herbert, Shurtleff and Buhman in July 2011, claiming that Utah's bigamy statute violates the Browns' constitutional rights to due process, equal protection, free exercise of religion, free speech and freedom of association.
Waddoups wrote that the practice in Utah is primarily to prosecute individuals for bigamy only when other crimes are also being committed and that the Browns must show that there is a real and viable threat to their constitutional rights for the lawsuit to hold up in court.
"Although the court finds that no Utah state official has taken actions that credibly threaten prosecution, this is not the case with the Utah County Prosecutor's office," Waddoups said, explaining why Herbert and Shurtleff were dismissed from the case.
He wrote that Buhman conducted interviews with the Deseret News, The Salt Lake Tribune and People magazine where he made it clear that he intended to investigate and prosecute the Browns.
The fact that no charges have, in fact, been filed, does not matter, Waddoups wrote.
"The entirety of actions by the Utah County prosecutors tend to show either an ill-conceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law," the judge wrote. "Without any evidence to the contrary, the court assumes that these are consummate professionals making announcements of criminal investigations to apprise the public that they are doing their duty and seeking to enforce the law."
Because Waddoups determined that Buhman was sincere, there is reason for the Brown family to believe they could face prosecution in Utah and that could have a "chilling effect" on their ability to practice their First Amendment rights in the state. Waddoups wrote that this suit demonstrates what could happen if officials could make a statement that questions the right to free speech and then try to keep citizens from their day in court.
"Such precedent would not create a simple slippery-slope, but an unfettered path towards government harassment and abuse," Waddoups wrote. "Accordingly, (the Browns) have established standing to bring their First Amendment claims against Utah County."
In a court declaration written by Janelle Brown in October, she said the family lives in fear in Nevada and have suffered financial and spiritual losses.
"We have struggled with great difficulty to protect our children while trying to teach them our faith despite our separation from our religious community in Utah," she wrote.
The family has repeatedly expressed its desire to return to Utah once there is no longer a threat of prosecution.
Buhman said Friday that he had not yet reviewed the ruling and was not prepared to comment.