Washington D.C., Sep 22, 2016 / 12:20 am (CNA/EWTN News).- A polygamous family featured on a reality TV show has asked the U.S. Supreme Court to strike down a law intended to combat polygamy, but one attorney doubts their case will prevail.
“Here, the proposed constitutional right to plural marriage is on a potential collision course with the preexisting constitutional and statutory rights of women and children,” Matthew Kacsmaryk, deputy general counsel at First Liberty legal group, told CNA Sept. 20.
Kacsmaryk said the plaintiffs may have difficulty prevailing against arguments that polygamy causes social harm. If the Supreme Court takes the case, it may still cite available data on sexual exploitation and physical abuse in polygamous communities to find a rational basis for Utah’s law.
Kody Brown and his four wives, featured on the television show “Sister Wives,” last week filed an appeal to the Supreme Court challenging the Utah law, which bars cohabitation with other partners when the man is legally married to just one woman.
An appellate court in April ruled that the Browns cannot sue because they were not charged under the law. That ruling overturned a lower court that said the law violated their right to privacy and religious freedom.
The 10th Circuit Court of Appeals has denied a request to reconsider the case, resulting in an appeal to the high court.
Jonathan Turley, the attorney for the family, explained the appeal.
“This has been an extended and difficult struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case,” he said, according to the Associated Press. “Utah is a state that was founded by courageous citizens seeking these very protections from government abuse and religious inequality. This lawsuit is true to the original dream of those seeking freedom in Utah.”
But Kacsmaryk suggested that the already well-established constitutional and statutory rights of women and children would stand against the argument for religious freedom in the case.
Brown is legally married to one wife and claims “spiritual marriage” to his other wives. The family now lives in Las Vegas, Nevada. They said they fled their home in Lehi, Utah in 2011 because local authorities opened an investigation after their television show debuted in 2010.
The investigation was closed without charges but the family said they can still face prosecution.
Kacsmaryk served as assistant U.S. Attorney for the Northern District of Texas when it prosecuted polygamists from the Fundamentalist Church of Jesus Christ of Latter-Day Saints, whose claim that they were practicing the free exercise of religion was rejected in court.
He said that constitutional rights “are often balanced against other constitutional rights to achieve something like an Aristotelian ‘golden mean’.”
Kacsmaryk said it is unsurprising that the plaintiffs would invoke arguments made in recent Supreme Court precedents mandating that all states recognize “gay marriage” and strike down morals legislation on the grounds of “radical self-definition” and self-actualization.
In his view, the court has never explained an adequate principle limiting its standard of consenting adults to simply two people.
At the same time, the Brown plaintiffs cannot make any constitutional arguments unless the Supreme Court agrees to hear their case.
The Church of Jesus Christ of Latter-day Saints, colloquially known as Mormons, renounced the practice of polygamy in 1890, though splinter groups still practice plural marriage. U.S. anti-polygamy laws have been upheld in several Supreme Court decisions.