Attorney Jonathan Turley talks about the lawsuit he filed challenging Utah's anti-polygamy laws with Utah polygamist Kody Brown outside U.S. District Court, Wednesday, July 13, 2011, in Salt Lake City, Utah.
Tom Smart, Deseret News
SALT LAKE CITY — A federal judge wants to know whether Utah County's assertion that it would not prosecute the polygamous family featured in "Sister Wives" is a ruse to avoid a legal challenge of the state's bigamy law.
U.S. District Judge Clark Waddoups' blunt questions had a state attorney on his heels for much of a 45-minute hearing Wednesday as he tried to defend Utah County Attorney Jeff Buhman's recent policy change regarding the statute.
"Is the act of the Utah County attorney simply an attempt to avoid the issue of what consenting adults can do constitutionally?" Waddoups asked assistant attorney general Jerrold Jensen.
In May, Buhman said in court documents that his office had adopted a formal policy not to prosecute the practice of bigamy unless it occurs in conjunction with another crime or if a party to the marriage or relationship is under 18.
The change came about 18 months after Buhman's office said it was investigating and might prosecute Kody Brown and his four wives under Utah's bigamy law. The Browns later filed a lawsuit, claiming the statute violates their constitutional rights to due process, equal protection, free exercise of religion, free speech and freedom of association.
Jensen contends that because the Browns won't be prosecuted, their lawsuit is moot and should be dismissed.
Calling it an "important issue to many people," Waddoups took the case under advisement and said he would rule as soon as possible.
The judge noted that other than in court documents, Buhman did not publicly announce the change and there's nothing to preclude him or a future county attorney from enforcing the law. "That goes to the sincerity of this policy," he said.
Jensen said Buhman, who did not attend the hearing, should be taken at his word.
"I don't think you can question the sincerity of the adoption of this policy," Jensen told the judge.
Jensen said after the hearing that he would call Buhman to the witness stand if the ruling goes against the state.
The Browns' attorney, Jonathan Turley, said the "faux" policy does not repeal the bigamy statute and that Buhman still considers it constitutional and enforceable. He never explains the reasons for not prosecuting people for bigamy, but is willing to do so if it's connected to another crime, Turley said.
