SALT LAKE CITY — What is the difference between consenting adults engaged in an affair and consenting adults in a polygamous marriage?
That was the question U.S. District Judge Clark Waddoups asked Utah assistant attorney general Jerrold Jensen on Thursday afternoon during final oral arguments for the case involving a former Utah County polygamist family made famous by a TV show.
Kody Brown and his four wives, who gained notoriety in the reality TV show "Sister Wives," are challenging Utah's bigamy statute, claiming it is unconstitutional because it violates their constitutional rights to due process, equal protection, free exercise of religion, free speech and freedom of association.
The TV show sparked an investigation by the state, which ultimately forced the Browns to move from Lehi to Nevada in 2010.
In their motions, the Browns say they are not seeking the legalization of plural marriage, only that their constitutional rights be upheld.
During Thursday's hearing, Jensen was grilled by Waddoups with questions about what specifically made polygamy a crime. Jensen was on his heels for most of the hearing.
When Waddoups asked whether a married adult who had no children and an adulterous relationship with three other women living in separate homes was different from a polygamist relationship, Jensen said, "Yes." He said it was the "criminality that comes out of polygamous unions" and the crimes against young girls and boys that made it wrong.
"The government has a legitimate interest in protecting people from being injured," Jensen said.
Waddoups pointed out that there were already separate laws that dealt with child abuse.
"You know what? The law has to draw a line somewhere," Jensen replied. "Why is drunkenness .08 and not .07?"
When Waddoups attempted to nail Jensen down to why specifically the Browns' conduct was not legal, Jensen said the court had to "look at the broad (polygamist) community as a whole."
Jensen told the court it was "pretty common knowledge" in Utah that there were stories of abuse within polygamous families. Although he did not list any in court documents, he said there were numerous stories of 15-year-old boys being kicked out of polygamous communities and forced to live on the streets of St. George or Las Vegas and of young girls being forced into marriages with adult men.
If the argument was just about consenting adults, Jensen said he would understand the Browns' point. But he considered their motion not just about their own situation, but a "facial challenge to the statute." And Jensen contended Utah wasn't alone with its law.
"There is no court in this country that has held the practice of polygamy as a fundamentalist right," he said.
Jensen said the Browns listing six areas where the statute violates their constitutional rights equated to nothing more than "kind of a kitchen sink argument."
"I don't see how the Browns can assert equal protection," Jensen said at one point, while later adding, "I don't even see how you get to an establishment clause. It makes no sense to me."
Later, when asked again to distinguish the difference between polygamists and consenting adults in an affair, Jensen said it was marriage, whether it was one officially recognized by the state or a secret ceremony.
"Just because the state can't prove (marriage) doesn't mean it didn't happen," he said.
The Browns' attorney, Jonathan Turley, responded by arguing that a blanket statement that all plural marriages were the same was wrong.
"You can't just say 'social harm' and that satisfies the standard," he told the court.
Outside the courtroom, Turley added that there were many other families like the Browns who were not living a plural marriage in a "compound" situation.
"You can't uphold the statute based on stereotypes," he said.
While the government argued that it could give "thousands" of stories about abuse in polygamist families, Turley said, "I can give you stories in the tens of thousands of abuse in monogamous relationships."
The way Utah's bigamy statute is currently written, "it criminalizes cohabitation," he said. He said Jensen's argument that every state in the nation had a similar law wasn't completely true. Utah's statute is the only one that focuses on cohabitation, he said, noting that the state "can't criminalize consenting adults."
"What the Browns are seeking are what most people take for granted," Turley said.
He said the Browns are seeking to be able to live their lives openly and not under the constant fear that they will be treated like felons.
Turley countered the government's "kitchen sink" argument by saying they were using a "Hail Mary" pass to apply 19th century standards to the current case, and that "morality alone" cannot be the basis for the statute.
Neither Brown nor his wives attended the hearing. But on Turley's blog, Kody Brown released a statement.
"On behalf of the entire Brown family, I want to thank Judge Waddoups for this opportunity to argue the merits of our case. We understand that this is a historic moment for all plural families, and we are honored and humbled to serve as the plaintiffs in this action," he wrote.
"This has been a difficult road for us, and we are relieved to see the case coming to the final arguments. We remained committed to this civil rights cause and the struggle of plural families, both religious and nonreligious, in the state. We hope that Utahans can understand that our family — like tens of thousands in this state — are seeking only to be allowed to live according to our beliefs and not be declared felons simply because we are different.”
Waddoups took the arguments under advisement and will announce a decision at a later time.