You may have seen the Brown family on their popular docudrama "Sister Wives." The Browns are a family comprised of a male husband, four female wives, and roughly fourteen thousand children. Kody Brown, the patriarch and sole husband, is only legally married to his first wife, Meri. His other "wives," Janelle, Christine, and Robyn, are not legally married to him but have been cohabiting (and reproducing) with him for many years. They identify as his "wives," just like Meri. The entire Brown family now lives in four homes which occupy a single cul-de-sac in Las Vegas, Nevada, after they were forced to leave their native Utah and its criminal prohibition of their "plural marriage" lifestyle.
The Browns filed suit, challenging the criminalization of their familial arrangement. Their family, though obviously unconventional, is, by all accounts, completely consensual for all parties. There has never been any allegation of coercion or unwillingness by any of the "spouses" involved. They have become popular ambassadors for an unpopular familial arrangement, going to great lengths in their show for the TLC network to convince others that the way they live is not just what they want, but actually good for all involved.
A federal judge in Utah has now ruled that at least part of Utah's criminal prohibition of cohabiting plural relationships is unconstitutional. In a 91-page opinion, Judge Clark Waddoups found that the law unreasonably interferes with the Browns' rights to religious free exercise and their larger right to privacy in domestic relations.
One of the lawyers for the Browns, the well-known legal commentator and blogger, Professor Jonathan Turley, has written an extensive post about the Browns, their lawsuit, and larger issues of equality central to their case and the judge's opinion.
As I, along with other attorneys in the office of Clay Daniel Walton & Adams, finalize our briefing in the case of Bourke v. Beshear, I note with some surprise how challenges to same-sex marriage bans have become less controversial over the past several years. More and more of the American public (and its court systems) are starting to acknowledge the obvious problems of equality and justice that such prohibitions create. Just like interracial marriage in the 1960s, same-sex marriage is no longer feared or reviled as it has been in the past.
However, the mainstream is still far less sympathetic to the idea that more than two people may comprise a marriage, even if it is still based on the opposite-sex model. But, as people realize that consent is ultimately the most important issue behind any familial arrangement, their reactionary distaste decreases somewhat. As long as all the parties are willing, how can there be harm?
This may explain why the Browns are so popular on television. By their own repeated admissions over several seasons of their show, they truly believe in and want to be a part of their nontraditional familial arrangement. None of them have been forced into anything, and they were all adults when they entered into their "sister wife" marriages. Skeptics abound, but the Browns have been nothing if not consistent.
And of course, the television show helps in another way: people tend to oppose the lifestyles of others less when they see those others as "real people" with the same hopes, dreams, problems, and concerns as everyone else. They become less of the scary "Other" and more like neighbors and peers. Maybe you wouldn't want to have multiple wives, but it's OK for others if that's what they want to do. Just as long as they go to work, pay their taxes, send their kids to school, and do all the other things expected of good citizens, where's the harm?
I recognize that support for plural marriages like the Browns' is still highly controversial, but prohibiting it may actually run afoul of our Constitutional protections of religion and privacy. Marriage is considered a "fundamental" right. While a majority of Americans may find the idea of polygamy to be repugnant, the Constitution doesn't let the government restrict consensual familial arrangements without a very good reason for doing so. At least one court has acknowledged this conflict. The obvious next question is, will others follow?