Polygamist Kody Brown and his four wives — Meri, Janelle, Christine, and Robyn — filed their lawsuit in Salt Lake City's U.S. District Court in July. A criminal investigation of the family began after the launch of their TLC reality show in fall 2010.
No charges have been filed by either the state of Utah or prosecutors in Utah County, where the family, which includes 16 children, lived. The family moved to Nevada in January and contends they were forced to leave Utah in order to avoid prosecution.
But in court papers filed Sept. 1, the attorney general's office argues that criminal charges aren't necessarily forthcoming.
"They have not been warned that if they do not cease to engage in their polygamous relationships that legal actions will be taken against them," Assistant Utah Attorney General Jerrold S. Jensen wrote. "And — what is probably the tipping point — there have been no arrests or prosecutions for the mere practice of polygamy in Utah in over 50 years."
Court papers say the policy of the Utah attorney general's office is only to prosecute polygamists for bigamy when it occurs in conjunction with other crimes.
In a statement provided by e-mail, the Brown's attorney, Jonathan Turley, said the state's motion for a dismissal is an effort to avoid scrutiny of an unconstitutional law.
"Under this extreme position, state officials can criminalize any private relationship while denying the right of citizens to challenge the law, even when those citizens are denounced as presumptive felons by prosecutors in the media," Turley, a professor at George Washington University in Washington D.C. "We will vigorously oppose the effort to close the door of the courthouse to this family."
Under Utah law, it is illegal for unmarried persons to cohabitate, or "purport" to be married. A person is also guilty of bigamy if they hold multiple legal marriage licenses.
The third-degree felony is punishable by up to five years in state prison. Both men and women can be prosecuted under the law, which also applies to unmarried, monogamous couples that live together.
The Brown's lawsuit asks a federal judge to declare the law unconstitutional.
Appellate court records shows that only three bigamy cases have been prosecuted in Utah since 1960, the state said in its court filing. All three cases involved crimes other than bigamy, including fraud, criminal non-support of spouses and children and sexual assault of a minor.
Utah County has no stated policy on prosecuting polygamy, but historically has a similar practice, Jeffrey Buhman, the county attorney states in affidavit filed with the court.
Buhman has said his office's investigation is ongoing and no decision about whether or not to prosecute the Browns has ever been announced.
Early Mormon settlers brought polygamy to Utah in the 1840s. Leaders of the Church of Jesus Christ of Latter-day Saints abandoned the practice in 1890 however, as Utah moved toward statehood.
The Browns belong to the Apostolic United Brethren, one of handful of self-described Mormon fundamentalist churches that continue the practice as part of their faith.
The polygamy advocacy group Principles Voices estimates there are about 40,000 fundamentalists who practice or believe in polygamy living in Utah and other western states.
Like most polygamists in Utah, Brown is legally married only to his first wife, Meri. He subsequently "wed" Janelle, Christine and Robyn only in religious ceremonies and the couples consider themselves "spiritually married."
Turley has said the focus of the family's lawsuit is really privacy, not polygamy. The Browns are not challenging Utah's right to refuse to recognized plural marriage nor are they seeking multiple marriage licenses.
"What they are asking for is the right to structure their own lives, their own family, according to their faith and their beliefs," he said at a news conference outside the federal courthouse two months ago.
Utah seeks dismissal of 'Sister Wives' federal lawsuit challenging the state's bigamy law | The Republic