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Judge Awards Damages to Polygamists for Utah Violating Rights

     By: Mark Henkel
Date: Sep 02, 2014
Word Count: 1000 words
Cross-Reference: Brown v Buhman, Sister Wives, Clark Waddoups

AUTHOR: Mark Henkel  
Mark Henkel is both the National Polygamy Advocate for the overall National Polygamy Rights Movement for Consenting Adults and the Founder of the organization, the non-Mormon, cross-denominational, Christian polygamy rights organization. He has been interviewed and reported by numerous major media in the United States, including FOX Business Network's "Stossel," ABC's "20/20," NBC's "TODAY Show," CourtTV (TruTV), 700 Club, Newsweek, Associated Press, Washington Times, and many more as noted at .  
He is also a professional speaker who has given numerous speeches before non-polygamous audiences, including a Keynote Speech at Yale.  
FMI, see  
Judge Awards Damages to Polygamists for Utah Violating Rights 
. . . . . . . . . by  
. . . . . . . . . . . . . . Mark Henkel  
Copyright © 2014 ALL RIGHTS RESERVED 

As Utah's Attorney General had failed to provide any answers to refute the claim for damages, the federal Judge awarded damages to the Brown family for the State of Utah violating their constitutional rights. 

On   August   27,   2014,   in   Utah,   Federal   District   Judge   Clark   Waddoups   awarded   damages   to   the   Brown   family,   the   Mormon   polygamous   TV   stars   of   the   TLC   network's   "polygamy   reality"   show,   Sister   Wives.     This   was   the   seventh   and   final   count,   whereby   the   Judge   concluded   his   Decision   of   the   Brown   v.   Buhman   case. 
The   previous   counts   had   also   all   been   decided,   in   the   Brown   family's   favor,   back   on   December   13,   2013. 
Prior   to   that   Decision,   Utah's   1973   bigamy   statute   used   to   be   codified   as   follows:   "[a]   person   is   guilty   of   bigamy   when,   knowing   he   has   a   husband   or   wife   or   knowing   the   other   person   has   a   husband   or   wife,   the   person   purports   to   marry   another   person   or   cohabits   with   another   person."    
In   the   Fall   of   2010,   Mormon   Polygamist   Kody   Brown   and   his   then-three   wives   (Meri,   Janelle,   and   Christine)   and   eventual   fourth   wife   (Robyn)   allowed   their   lives   to   be   broadcast   on   a   new   TV   show   on   TLC,   called,   Sister   Wives.     Technically   speaking,   Kody   only   had   one   marriage   license,   the   marriage   with   his   first   wife,   Meri.     The   other   three   relationships   were   religious-only   marriages   without   any   state   marriage   licenses   (also   known   as   "de   facto   polygamy"). 
After   Sister   Wives   began   airing,   a   police   investigation   was   ordered   against   the   Brown   family.     Fearing   the   consequences,   the   Browns   hurriedly   fled   their   home   State   of   Utah   to   the   less-restrictive   State   of   Nevada,   making   Las   Vegas   their   new   home.     In   July,   2011,   Constitutional   Law   Professor   Jonathan   Turley   helped   them   file   this   lawsuit,   Brown   v.   Buhman
On   Friday   the   13th   of   December,   2013,   Judge   Waddoups   made   his   determination   of   all   but   the   final   count.     Therein,   he   analyzed   and   altered   the   specific   wording   of   Utah's   bigamy   statute   so   as   to   bring   the   law   into   federal   consistent   constitutional   conformity. 
First,   he   struck   down   the   last   five   words   of   the   statute   ("or   cohabits   with   another   person"),   which   he   identified   as   the   "cohabits   prong."     Waddoups   determined   that   that   prong   was   unconstitutional   because   no   one   else   except   polygamists   are   ever   criminalized   for   cohabitation   (or,   to   use   the   vernacular,   "shacking   up")   -   whether   for   monogamy,   adultery,   or   otherwise.      
Second,   from   Page   87   of   the   December   13,   2013,   Decision,   the   Judge   defined   the   very   specific   meaning   of   "purports   to   marry"   in   the   statute   so   that   free   speech   would   no   longer   be   criminalized.     Re-defining   what   he   called   the   "purports   prong,"   Waddoups   decided,   "the   'purports   to   marry'   prong   should   be   interpreted   'as   referring   to   an   individual's   claim   of   entry   into   a   legal   union   recognized   by   the   state   as   marriage.   The   phrase   does   not   encompass   an   individual's   entry   into   a   religious   union   where   there   has   been   no   attempt   to   elicit   the   state's   recognition   of   marital   status   or   to   procure   the   attendant   benefits   of   this   status   under   the   law,   and   where   neither   party   to   the   union   believed   it   to   have   legal   import.'" 
With   the   "cohabits   prong"   struck   down,   and   with   the   "purports   prong"   specifically   defined,   Judge   Waddoups   declared   (on   Page   90   of   that   December   13,   2013,   Decision),   "under   this   narrowing   construction,   the   Statute   remains   in   force,   submitting   anyone   residing   in   Utah,   knowing   he   has   a   wife   or   she   has   a   husband   or   knowing   the   other   person   has   a   husband   or   wife,   to   prosecution   for   the   crime   of   bigamy   for   entering   into   any   further   purportedly   legal   union."    
Thereby,   "de   facto   polygamy"   (i.e.,   polygamy   with   no   more   than   one   marriage   license)   became   wholly   de-criminalized   in   Utah,   while   "de   jure   polygamy"   (i.e.,   polygamy   with   multiple   marriage   licenses)   remains   a   crime. 
Hence,   immediately   after   December   13,   2013,   what   then   still   remained   to   be   decided   was   the   lawsuit's   seventh   count:   the   Brown   family's   claim   for   damages   that   their   constitutional   rights   had   been   deprived   under   42   U.S.C.   §   1983.    
On   Pages   1-2   of   the   August   27,   2014,   Memorandum   Decision,   Judge   Waddoups   affirmed   that   the   Browns   (as   Plaintiffs)   had   "unambiguously   asserted   a   number   of   specific   injuries   in   their   Complaint…   that   entitle   them   to   monetary   damages.   …Moreover,   in   connection   with   the   recitation   of   these   injuries,   Plaintiffs   explicitly   seek   to   'recover   all   of   their   attorneys'   fees,   costs,   and   expenses   incurred   in   this   action   pursuant   to   42   U.S.C.   §   1988,   and   any   other   relief   that   this   Court   may   order.'" 
With   that   one   last   matter   still   unresolved,   the   Memorandum   Decision   explained   that,   "in   a   status   conference   held   on   January   17,   2014,   the   court   requested   supplemental   briefing   on   the   issue." 
However,   as   the   Memorandum   Decision   also   reported,   the   Defendant   failed   "to   include   an   affirmative   defense   or   any   answer   to   Plaintiffs'   Section   1983   claim   in   his   Answer…   or   in   any   of   his   briefs   in   the   summary   judgment   process."     Continuing,   "The   court   must   view   this   as   a   conscious   decision   on   the   part   of   Defendant,   a   decision   that   has   consequences   under   the   orderly   administration   of   justice   in   the   federal   courts.   'Failure   to   plead   an   affirmative   defense   results   in   a   waiver   of   that   defense.'" 
With   all   that   explained,   Federal   Judge   Clark   Waddoups   decided,   "The   court   therefore   finds   in   favor   of   Plaintiffs   on   their   seventh   and   final   count   in   the   Complaint   under   42   U.S.C.   §   1983   and   GRANTS   summary   judgment   in   their   favor   on   this   last   remaining   count.   Plaintiffs,   however,   have   chosen   to   drop   their   claim   for   monetary   damages   aside   from   attorney's   fees:   '[Plaintiffs]   believe   strongly   that   the   focus   of   the   case   should   be   on   the   Court's   historic   ruling   and   not   their   insular   losses   associated   with   the   criminal   investigation   and   public   comments   of   the   Defendant.   To   that   end,   they   will   not   ask   for   repayment   of   their   moving   costs,   loss   of   contracts,   or   other   expenses   detailed   in   the   prior   filings,'   although   'reserve[ing]   their   right   to   seek   attorneys'   fees   in   this   case.'" 
Previously,   Utah's   Attorney   General   Sean   Reyes   had   said   he   would   plan   to   appeal   the   ruling.     With   this   last   count   finalized,   his   office   immediately   said   that   they   are   reviewing   the   matter.   The   next   day,   Utah's   Republican   Governor   Gary   Herbert   opined   that   all   laws   of   the   state   should   be   defended   until   all   appeals   are   exhausted.     If   Reyes'   office   does   appeal,   it   will   be   at   the   federal   United   States   Court   of   Appeals   for   the   Tenth   Circuit   in   Denver,   Colorado   –   which   would   be   the   last   step   before   reaching   the   Supreme   Court   of   the   United   States. 


Bibliographic URLs:

Brown v Buhman, 8/27/14 Memorandum Decision 
Brown v. Buhman, 12/13/13 
'De Facto' Polygamy De-Criminalized in Utah by Federal Court 
Federal Court Rules State Officials Violated the Constitutional Rights of the Brown Family in the Sister Wives Case 
42 U.S. Code § 1983 - Civil action for deprivation of rights 
42 U.S. Code § 1988 - Proceedings in vindication of civil rights 
Judge finalizes ‘Sister Wives’ ruling as both sides prepare for appeals 
Utah governor says state should defend law anti-polygamy struck down in 'Sister Wives' case 
[Reviewed for publication - Review Board.] 

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