The case has the potential to force another reexamination of laws governing individuals' sexual choices and lifestyles. It comes after the US Surpeme Court in 2003 struck down a Texas antisodomy law as an unconstitutional intrusion into private conduct, and at a time when views about marriage are in flux.
Legal analysts say it is important for the public to understand what this latest lawsuit is not about.
“This is not about the Browns' attempt to get Utah to recognize polygamous marriage, but rather to ask the federal courts to tell them they cannot punish intimate conduct,” says Melissa Murray, assistant professor of law at the UC Berkeley School of Law. The Browns will argue that the 2003 Supreme Court ruling in Lawrence v. Texas should extend to the practice of having multiple wives, she says.
Adds Herma Hill Kay, a US Berkeley law professor: “They are not seeking to have their relationship validated as a marriage. They’re just trying to avoid criminal prosecution.”
Jessica Levinson, a professor at Loyola Law School in Los Angeles, says the Browns will argue that criminalizing polygamy violates the 14th Amendment’s guarantees of due process and equal protection, as well as the First Amendment’s clauses guaranteeing the free exercise of religion, free speech, and freedom of association.