Challenge To Utah's Polygamy Law Can Proceed Against County Prosecutor

In Brown v. Herbert, (D UT, Feb. 3, 2012), a Utah federal district court held that members of an openly polygamous family (subjects of the television show Sister Wives) have standing to bring suit against the County Attorney to challenge the constitutionality of the state's Anti-Bigamy Statute. However the court dismissed for lack of standing their similar claims against Utah's governor and attorney general. Finding that Utah's Anti-Bigamy statute is generally considered moribund, the court held that plaintiffs needed to show threatening activities by government officials to show that a credible threat of prosecution exists. State officials had taken no action to credibly threaten prosecution. They have announced that they will not prosecute consenting adults for polygamy unless other crimes are also involved. However the Utah County prosecutor's office has taken threatening steps by opening an investigation that led plaintiffs to flee to Nevada. The court held that plaintiffs also have standing under a First Amendment chilling of speech theory. The Salt Lake Tribune reports on the decision.