Meet Kody Brown, his three four wives — Meri, Janelle, and Christine (and Robyn) — and their 13 16 children. Follow the Brown family and see how they attempt to navigate life as a normal family in a society that shuns their polygamist lifestyle.

When I first saw the show, it struck me that this may be the ballsiest attempt at reality television ever, and indeed, the family escaped from Utah (with cameras rolling) to seek solace in Nevada.  Apparently, not even Nevada was ready to turn a blind eye. From the New York Times :

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Of course, Kody is something of a cheater, having “officially” wed only one of his wives, the others just hanging out as “sisters.”  But that doesn’t mean he doesn’t want to marry the lot of them.

“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University.

As this was certainly foreseen as part of that slide down the slippery slope following gay marriage, how does lead attorney Turley address the claim that people from Kentucky will be free to engage in mutton marriage next?

Professor Turley called the one-thing-leads-to-another arguments “a bit of a constitutional canard,” and argued that removing criminal penalties for polygamy “will take society nowhere in particular.”

Bah.  And yet, Turley’s view that the Kody Brown situation presents the best legal and factual argument against the criminalization of polygamy has much to commend it.  These are all seemingly normal adults, under neither duress nor delusion, who have made a mature, reasoned decision that they would prefer to enjoy their lives as a happy family.  What’s wrong with that?

Not all lawprofs see this as a logical extension, however:

Douglas Kmiec, a law professor at Pepperdine University, said today’s courts might not agree with the sweeping societal conclusions of the 19th-century courts, but noted that more attention has been paid in recent decades to the importance of internal family issues as part of the public policy sphere. Questions of child abuse and spousal domination, he said, could figure into a judicial examination of polygamy.

“We’re more sensitive to the fact that a household can be quite repressive,” he said, and so reservations about polygamy “might be even more profound.”

Turley properly responds that every household has its problems.

Professor Turley disagreed, noting that “there are many religious practices in monogamous families that many believe as obnoxious and patriarchal,” and added, “The criminal code is not a license for social engineering.”

What presents a very real obstacle is that the rationale supporting the polygamist position does lead to a very real slippery slope problem, with issues such as incestuous marriage looming large in the background.  If it’s nobody’s business what sane, reasonable, consenting adults choose to do in the privacy of their own home, then all sorts of societal taboos are at risk.  Sure, there are questions about the offspring of a marriage between siblings, but medical science can deal with that, as can the choice of not having children.

Regardless of the point taken to its logical extreme, and a recognition that not all polygamist marriages are so lacking in duress as Brown’s, the position treads onto some very serious aspect of culture that many will just find too disgusting to accept.  Of course, that could be said of gay marriage as well.

Significantly, this case involves the transition between scholar/theorist and trench lawyer, as Turley takes the helm in trying to steer this case through some very rocky shoals.  Regardless of the outcome, or one’s gut reaction to the argument that polygamy is just another name for a glutton for punishment, I have to give Turley credit for taking on the very real fight.  When a lawprof leaves the ivory tower and fights in the trenches, it’s always worthy of our note and credit.

In the meantime, Turley will have to deal not only with husband Kody, but his four wives.  I wonder if he thought about this before taking the case?

Update:  Turley writes about his adventures in polygamy here, noting that he’s not attempting to legalize polygamy (or polyandry, for that matter), but rather to fight on constitutional grounds against its criminalization.

“We believe that this case represents the strongest factual and legal basis for a challenge to the criminalization of polygamy ever filed in the federal courts. We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs. This action seeks to protect one of the defining principles of this country, what Justice Louis Brandeis called ‘the right to be left alone.’

Four wives and Kody Brown wants to be left alone?  I can’t wait to find out how that works out.l