For this New Year's Day, 2017, pro-polygamists are - with bated breath - anxiously watching the Supreme Court of the United States (SCOTUS) for this specific year. On September 12, 2016, attorneys for the Brown family of TLC's reality-TV show, "Sister Wives," petitioned SCOTUS to hear the polygamy case, Brown v. Buhman. On December 27, 2016, the Utah Attorney General's Office (UAGO) filed their brief in opposition.
But will the Supreme Court even hear the case? Will the case even be allowed to be heard "on the merits" of the arguments? Or, noting what SCOTUS did to same sex marriage (SSM) with Hollingsworth v. Perry in 2013 due to "Article 3 standing" issues, will the Court do similarly to unrelated consenting adult polygamy (UCAP) with Brown v. Buhman in 2017?
The worry behind these questions began a year ago when, on December 11, 2015, the U.S. Court of Appeals for the Tenth Circuit ordered both sides in this polygamy case to file briefs that specifically address the following two questions: "1) Whether Appellees had standing and their claims against Appellant Buhman were ripe at the time of the complaint; and 2) if so, whether the prosecutorial policy announced in Appellant Buhman's May 22, 2012 declaration, or any other matters, rendered Appellees' claims against him moot."
The next day, on December 12, 2015, National Polygamy Advocate ™ Mark Henkel blogged, "The Tenth District's U.S. Circuit Court of Appeals is the last court to hear the case before possibly proceeding next up to the final court of the Supreme Court of the United States (SCOTUS). Hence, this 'next to last court' might be having a recent Decision by SCOTUS 'nagging' the back of their mind. Namely, as recently as 2013, SCOTUS vacated the Hollingsworth v. Perry case (instead of deciding it) simply because of the lack of correct "standing" issue. For many, the hope of that decision based 'on its merits' potentiated it as a possibly very big case too. Truly, if Hollingsworth had been decided 'on its merits' rather than being vacated on the technicality of improper 'standing,' it might even have had impact on this Brown v. Buhman case. Instead, Hollingsworth had no positive impact for UCAP polygamy. As such, there is a possibility that the motive behind the Appeals Court asking these two questions is a positive one; it could be that they want to proverbially 'dot all the i's and cross all the t's' so that SCOTUS will not subsequently vacate this decision too due to the 'standing' issue. However, if that is not the intent, then those two questions are worrisome; the questions could otherwise seem to suggest that the court itself is pro-actively looking for ways to intentionally allow such bad law to stay on the books by purposely trying to find such technicalities with which to stop the case at this lower-level court."
On January 21, 2016, the Tenth Circuit Court heard the case. Less than three months later, on April 11th, this Appeals Court reversed the lower court's decision back to status quo. On May 12th, this Court also denied the "en banc" request for a re-hearing.
That reversal was devastating for two reasons.
First, the lower court had effectively de-criminalized "de facto" polygamy for unrelated consenting adults (i.e., polygamy, but with no more than one marriage license), corrected the meaning of "purports to be married" to only apply to those who purport to be legally married to more than one spouse (i.e., purporting to have more than one legal marriage license), and retained the criminality of "de jure" polygamy (i.e., polygamy with more than one marriage license). The Tenth Circuit Court reversed all of these.
Second, as well as making the disappointment even worse, "the merits" of the arguments for the case were not even considered. Rather, the Tenth Circuit simply mooted the Brown family's "Article 3 standing," determining that the Browns no longer "had legal standing" to eligibly bring such a case to hearing.
As the National Polygamy Advocate ™ Mark Henkel told FOX-TV 10, "It was not reversed on the merits of any arguments whatsoever. They refused to hear any arguments at all."
On August 10, 2016, Supreme Court Justice Sonia Sotomayor signed off on granting the Browns' attorneys a month to file their petition for a Writ of Certiorari to bring the case up to SCOTUS.
On September 12, 2016, the Brown family's attorneys filed that petition. However, due to the reversal being based on "Article 3 standing" issues of the Brown family, the petition did not focus all that much on polygamy arguments. Instead, it focused on the "voluntary cessation doctrine" by which the Tenth Circuit justified its mooting of the Brown family's "Article 3 standing." The petition pointed out that other U.S. Circuit Courts apply a different standard of review that would not have mooted the Browns' "standing."
Two months later, in November, SCOTUS requested a response from the other (i.e., the "Buhman") side in the case. On December 27, 2016, the Utah Attorney General Office (UAGO) filed their brief in opposition. Using repeatedly condescending language, the brief insisted that there is "no split" among the different US Circuit Courts, regarding standards of review for cases involving "voluntary cessation doctrine." Thereby, the UAGO requested that the Supreme Court simply deny even hearing the case.
For this New Year 2017, UCAP polygamists watch and await with worry.
Will unrelated consenting adult polygamy even be allowed to have this case heard by the Supreme Court "on the merits" of pro-polygamy arguments? Will SCOTUS deny the petition, not letting Brown v. Buhman be heard at all? Or, will the Supreme Court actually allow - and even hear - the case, but still only end up affirming the Tenth Circuit's reversal?
Will SCOTUS embrace this rare opportunity to re-consider the constitutionality of unrelated consenting adult polygamy (UCAP)? Or, will the Supreme Court waste this unique moment in history; as National Polygamy Advocate ™ Mark Henkel has worried, "Will Brown v. Buhman be our Hollingsworth?"
"Sister Wives" Family Petitions the Supreme Court
Utah AG Office opposes "Sister Wives" petition of Supreme Court
Pro-Polygamists NOT 'Excited' about Supreme Court Decisions
"Sister Wives" Appeal at 10th Circuit set for Jan. 2016
* BREAKING NEWS * 10th Circuit Reverses "Sister Wives" case
10th Circuit Refuses to Re-hear "Sister Wives" case
'De Facto' Polygamy De-Criminalized in Utah by Federal Court
Judge Awards Damages to Polygamists for Utah Violating Rights
Mark Henkel on FOX 10 Phoenix - 5-24-2016 - Polygamy
Last Steps for Polygamy Heading to Supreme Court in 2017
PDF: Brown family's "Petition For A Writ Of Certiorari"
PDF: UAGO's "Brief in Opposition"
[Reviewed for publication - Pro-Polygamy.com Review Board.]