The polygamous family featured in the reality TV show "Sister Wives" were threatened with prosecution for polygamy and moved to Nevada from Utah as a result. They brought suit in U.S. District Court in Utah to have polygamy, defined as cohabitation with more than one person of the opposite sex, declared unconstitutional.
The State of Utah did a miserable job of briefing the case at the trial court level where they prevailed after various issues of standing and proper parties were established. On appeal, the briefing by the State wasn't much better.
But, ultimately, rather than establishing a landmark precedent decriminalizing polygamy, the 10th Circuit held that the case must be dismissed without prejudice as moot, because the Utah District Attorney's office who was sued in the case adopted a policy in May of 2012 that it would only prosecute polygamy cases when they were incident to frauds committed on a prospective spouse or third parties, effectively freeing the Sister Wives family from risk of prosecution.
The end result creates no precedent on the underlying issue of the decriminalization of polygamy (which also would have invalidated a virtually identical Colorado statute), and shifted the official prosecution policy of just one DA's office in Utah that can be changed prospectively at any time. The key language of the ruling was as follows:
The Utah County Attorney’s Office (“UCAO”) subsequently closed its file on the Browns and adopted a policy (“the UCAO Policy”) under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse. The Browns fall into neither category. Nonetheless, the district court denied the Utah County Attorney’s motion to dismiss the case as moot and instead granted summary judgment to the Browns.
Thus, the merits of the case are reserved for another day. The result was telegraphed by the Court of Appeals when it asked for supplemental briefing on the mootness issue.
The family's counsel discussed the ruling in a blog post. The family has indicated that it will seek en banc review from the 10th Circuit and/or appeal to the U.S. Supreme Court. I suspect that their odds of prevailing on either route of further appeal will be unsuccessful. This case is a hot button issue that the judges don't want to touch if they don't have to do so, and the mootness issue provides more than a fig leaf to justify their decision, even if it wasn't necessary clearly mandated by the circumstances.
Previous coverage at this blog includes this post.
Upon further reflection, the fact that the litigation forced the Utah County Attorney's Office to adopt a policy effective defanging the bigamy statute in the county of all of the counties in the United States most likely to have polygamous families who do not fall into one of the categories identified by the policy is still a pretty big blow for freedom, despite not making national or regional or even statewide precedent. The course of the litigation also provides a roadmap for future lawsuits on the subject, discouraging prosecutors elsewhere from trying to enforce similar statutes. But, by not making a legal precedent, the result defers public backlash that could roll back the progress made thus far until it ceases to be so controversial, and perhaps allows the precedent making cases to be made involving, for example, Islamic or African animist polygamist families who migrate to the U.S., and don't have such a distinctively American historical baggage.