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Case Name Brown v. Herbert FA-UT-0002
Docket / Court 2:11-cv-00652-CW-BCW ( D. Utah )
State/Territory Utah
Case Type(s) Speech and Religious Freedom
Case Summary
On July 13, 2011, the plaintiffs, a Mormon man and four Mormon women who were cohabitating and involved in a polyamorous relationship, filed a lawsuit in the U.S District Court of Utah against the State of Utah under 42 U.S.C. § 1983. The plaintiffs are a self-described "plural family," in which ... read more >
On July 13, 2011, the plaintiffs, a Mormon man and four Mormon women who were cohabitating and involved in a polyamorous relationship, filed a lawsuit in the U.S District Court of Utah against the State of Utah under 42 U.S.C. § 1983. The plaintiffs are a self-described "plural family," in which only one couple, the male plaintiff and one of the female plaintiffs, holds an official marriage license. The plaintiffs sought a declaratory judgment that Utah Code Ann. §76-7-101 ("Utah Statute"), which makes it a crime when a person, "knowing he has a husband or wife or knowing the other person was a husband or wife . . . purports to marry another person or cohabits with another person," violated their rights under the First and Fourteenth Amendments. The plaintiffs began starring in a TLC reality television show in 2010 called "Sister Wives," which documented their lifestyle and religious beliefs. They argued that they had been prosecuted under the Utah Statute solely because of their religious beliefs.

On May 31, 2012, the defendants filed a motion to dismiss for mootness because the plaintiffs had moved to Nevada, and the Utah County Attorney's Office had closed its file on the plaintiffs and adopted a policy ("the UCAO policy") under which the Utah County Attorney would 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 plaintiffs fell into neither category.

On the same day, the plaintiffs filed a motion for summary judgment.

On Dec. 13, 2013, District Court Judge Clark Waddoups granted the plaintiffs' motion for summary judgment and declared the Utah Statute facially unconstitutional. 947 F.Supp.2d 1170 (2013). The court found that while the cohabitation prong of the statute (the phrase "or cohabits with another person") was facially neutral, it was not operationally neutral and had been used, through a pattern of enforcement, to specifically target religious cohabitations. The court then found that because the cohabitation prong was not operationally neutral it was subject to strict scrutiny under the Equal Protection clause, which it failed. The court further found that the cohabitation prong violated the Due Process clause under the right to privacy as articulated in Lawrence v. Texas, 539 U.S. 558 (2003). Finally, the court found that the cohabitation prong was not articulated with a reasonable degree of clarity and was therefore void for vagueness.

In order to preserve the remainder of the statute, the court severed the phrase "or cohabits with another person" from the law. The court then narrowed the construction of the terms "marry" and "purports to marry," as a broad understanding of these terms would once again give rise to the constitutional dilemmas posed by the cohabitation prong. The court thus ordered a narrowing construction of the terms to "prohibit[] bigamy in the literal sense--the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." The court did not address the plaintiffs' claims under 42 U.S.C. § 1983.

On Dec. 20, 2012, the court's judgment on these issues was vacated because the case had mistakenly been closed before the plaintiffs' claims under 42 U.S.C. § 1983 were heard.

On Aug. 27, 2014, Judge Waddoups renewed his ruling that the cohabitation prong violated the constriction as outlined above and granted summary judgment in the plaintiffs' favor. 2014 WL 4249865. The Court further awarded plaintiffs their attorneys' fees, costs, and expenses incurred under 42 U.S.C. § 1988.

On Sept. 24, 2014, the State appealed the district court's decision to the U.S. Court of Appeals for the Tenth Circuit.

On Sept. 4, 2015, the court ordered that judgment in the amount of $242,500 for attorneys' fees in favor of the plaintiffs and against the defendants should be entered.

On May 13, 2016, the U.S. Court of Appeals for the Tenth Circuit denied the petition for en banc review. The panel decided, however, sua sponte, to amend the district court's decision.

The Tenth Circuit found the case had become moot, but the district court nevertheless denied the Utah County Attorney's motion to dismiss the case as moot and instead granted summary judgment to the plaintiffs. Any live case or controversy had been extinguished a year and a half before the district court granted summary judgment to the plaintiffs and over two years before the entry of final judgment. Thus, because the case became moot prior to final adjudication, vacatur and dismissal without prejudice were appropriate.

The plaintiffs appealed the decision to the Supreme Court, but their petition for a writ of certiorari was denied.

On Mar. 9, 2017, pursuant to the Tenth Circuit Court of Appeals' remand instruction, the judgment in favor of the plaintiffs was vacated and the case was dismissed without prejudice.

Richard Jolly - 10/14/2014
Elizabeth Greiter - 01/07/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Establishment Clause
Free Exercise Clause
Freedom of speech/association
Defendant-type
Jurisdiction-wide
Discrimination-basis
Family discrimination
Religion discrimination
General
Disparate Treatment
Marriage
Religious programs / policies
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) Attorney General of the State of Utah
County Attorney for Utah County
Governor of Utah
Plaintiff Description A Mormon man and four Mormon women, the stars of TLC's "Sister Wives," who were cohabitating and engaged in a polyamorous relationship.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Mixed
Public Int. Lawyer No
Nature of Relief Attorneys fees
Source of Relief Litigation
Form of Settlement Confession of Judgment
Filing Year 2011
Case Closing Year 2017
Case Ongoing No
Docket(s)
2:11-cv-652 (D. Utah)
FA-UT-0002-9000.pdf | Detail
Date: 03/09/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Civil Rights Complaint [ECF# 1]
FA-UT-0002-0002.pdf | Detail
Date: 07/13/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Decision Order [ECF# 31] (850 F.Supp.2d 1240) (D. Utah)
FA-UT-0002-0007.pdf | WESTLAW| LEXIS | Detail
Date: 02/03/2012
Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision and Order [Denying Defendant's Motion to Dismiss] [ECF# 69] (2012 WL 3580669) (D. Utah)
FA-UT-0002-0005.pdf | WESTLAW | Detail
Date: 08/17/2012
Source: PACER [Public Access to Court Electronic Records]
MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [ECF# 78] (947 F.Supp.2d 1170) (D. Utah)
FA-UT-0002-0001.pdf | WESTLAW| LEXIS | Detail
Date: 12/13/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision and Judgment [Ruling Utah Code Unconstitutional] [ECF# 90] (43 F.Supp.3d 1229) (D. Utah)
FA-UT-0002-0006.pdf | WESTLAW| LEXIS | Detail
Date: 08/27/2014
Source: PACER [Public Access to Court Electronic Records]
Order [Court of Appeals] [Ct. of App. ECF# 107]
FA-UT-0002-0008.pdf | Detail
Date: 05/13/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Baldock, Bobby Ray (Tenth Circuit, FISCR, D.N.M.)
FA-UT-0002-0008
Matheson, Scott Milne Jr. (Tenth Circuit)
FA-UT-0002-0008
Moritz, Nancy Louise (Tenth Circuit)
FA-UT-0002-0008
Waddoups, Clark (D. Utah)
FA-UT-0002-0001 | FA-UT-0002-0005 | FA-UT-0002-0006 | FA-UT-0002-0007 | FA-UT-0002-9000
Plaintiff's Lawyers Alba, Adam (Utah)
FA-UT-0002-0002 | FA-UT-0002-9000
Turley, Jonathan (District of Columbia)
FA-UT-0002-0002 | FA-UT-0002-9000
Defendant's Lawyers Jensen, Jerrold S. (Utah)
FA-UT-0002-9000
Roberts, Thomas D. (Utah)
FA-UT-0002-9000
Other Lawyers Parker, Ryan B. (District of Columbia)
FA-UT-0002-9000
Swent, Jeannette F. (Utah)
FA-UT-0002-9000

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