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Jonathan Turley (Pro Hac)
2000 H St., N.W.
Washington, D.C. 20052
(202) 994-7001
jturley@law.gwu.edu

Adam Alba, 13128
610 Crestwood Cir.
Bountiful, UT 84010
(801) 792-8785
adam.alba@gmail.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION


KODY BROWN, MERI BROWN, JANELLE
BROWN, CHRISTINE BROWN, ROBYN
SULLIVAN,
Plaintiffs,
v.
GARY R. HERBERT, in his official capacity
as Governor of Utah; MARK SHURTLEFF, in
his official capacity as Attorney General of
Utah; JEFFREY R. BUHMAN, in his official
capacity as County Attorney for Utah County,
Defendants.
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REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS
MOTION FOR SUMMARY
JUDGMENT

Judge Waddoups

Civil No. 2:11-cv-00652-CW

PLAINTIFFS REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Case 2:ll-cv-00652-CW-BCW Document 7l Filed 08/3l/l2 Page l of l4
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INTRODUCTION
Pursuant to the Courts order of May 5, 2012, the Plaintiffs Kody Brown, Meri Brown,
Janelle Brown, Christine Brown, and Robyn Sullivan (hereinafter the Brown family or the
Browns) filed a motion for summary judgment on May 31, 2012 in their challenge to the Utah
statute, Utah Code Ann. 76-7-101 (West 2010). The parties had agreed to each file a motion
for summary judgment on May 31, 2012, but the government instead elected at the last minute to
file a second Motion To Dismiss, which was subsequently denied. On the date set by the Court
for the filing of opposition memoranda (June 29, 2012), the government then filed a Cross
Motion for Summary Judgment and a Memorandum in Support of Defendants Cross Motion
for Summary Judgment and Response to Plaintiffs Motion for Summary Judgment. The
relatively short filing is notable not only for its brevity but also for its lack of response to
Plaintiffs Motion For Summary Judgment. In their motion, Plaintiffs presented detailed
arguments to support their seven constitutional claims, including due process, equal protection,
free speech, free association, free exercise, the establishment of religion, and 42 U.S.C. 1983.
1

The lack of any substantive response to the instant motion puts Plaintiffs in the awkward position
of replying to a non-response. However, to avoid any risk of waiver or concession, Plaintiffs
offer this claim-by-claim reply to the governments opposition to their motion.
FACTUAL BACKGROUND
Defendant objects to parts of four paragraphs in the factual background section of
Plaintiffs Memorandum of Points and Authorities in Support of Summary Judgment. Def.s
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! With the exception of the fact section, the Defendant makes only one direct reference to
the Plaintiffs Memorandum in Support of Summary Judgment. See Def.s Mem. at 9.!
Case 2:ll-cv-00652-CW-BCW Document 7l Filed 08/3l/l2 Page 2 of l4
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Mem. at 2. Three of those paragraphs (3, 11, and 32) are objected to only to the extent that they
characterize the drafters (or enforcers) of the Anti-Bigamy Law as targeting primarily religious
plural families. That objection is futile, as historical and academic works have long traced the
anti-bigamy law and the conditions imposed by the Utah Enabling Act of 1894, Ch. 138, 3, 28
stat. 107 to the opposition in Congress to religious polygamists in the state. Ironically, those
works include the primary case relied upon by the Defendant in this filing and in oral arguments
before the Court, United States v. Reynolds, which directly tied the prohibition to religious
polygamy. 98 U.S. 145 (1878).
2
While Defendant also notes that one of the more recent cases
actually involved a man engaged in cohabitation for non-religious purposes, that case was a
criminal case involving conventional bigamy with multiple marriage licenses, and thus does not
raise the same issues as the instant case. State v. Geer, 765 P.2d 1, 2 (1988) (noting that Geer had
been married thirteen times.).
3

The only fact contested by the Defendant is the representation in Paragraph 20 that state
officials publicly denounced the Browns as committing crimes every night on television.
Defendant formally objects to this representation: As he states in his Affidavit: I never stated
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! Moreover, the majority of recorded prosecutions under the state law have involved
religious polygamists. What is most notable is that cohabitation is a common part of modern
living. Yet, the relatively small number of religious polygamists has been repeatedly subject to
such prosecutions far out of proportion to their percentage of the population.!
3
The Defendants reference to Geer is rather curious given his claim of a long policy of
not prosecuting plural families absent some other collateral criminal offense. Yet, Geer is one
of the more recent cases where the prosecutor stated that he always has been and continues to
be willing to prosecute persons under the bigamy statute regardless of whether those persons
claim a religious basis for that practice and that his decision to prosecute is based solely on
whether there is sufficient evidence to convict the person of bigamy. Geer, 765 P.2d at 7.
Case 2:ll-cv-00652-CW-BCW Document 7l Filed 08/3l/l2 Page 3 of l4
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publicly that I would or would not prosecute the Browns, though I am aware others in my office
may have responded to the press to that effect (or at least the press reported that they did).
Def.s Mem. at 2. But that objection is not convincing. First, Plaintiffs factual representation
refers to state officials, and thus is neither rebutted nor disproven by a representation
concerning Mr. Buhman individually, even if accepted as true. Second, Mr. Buhman again tries
to dismiss statements made by members of his staff despite hundreds of years of cases
concerning respondeat superior and agency principles. Mr. Buhman is vicariously responsible for
statements by his subordinates as the head of his administration. See Def.s Mem. in Support
of Mot. to Dismiss at 5. Notably, the Defendant does not contest the remaining facts. Defendant
specifically does not contest the representations in Paragraphs 1-2, 4-10, 12-19, and 21-31.
ARGUMENT
The Defendants filing is obviously a Memorandum in Support of Summary Judgment
and not a response to Plaintiffs Motion for Summary Judgment. The filing fails to respond to
entire claims discussed at length in the Plaintiffs motion. The Court has broad authority over
how to address such a failure to respond. An uncontested motion, including a summary
judgment motion, can be treated as confessed. Reed v. Bennett, 312 F.3d 1190, 1193 (10th Cir.
2002). Absent such a finding, the court can deem the underlying factual claims to be
uncontested and find that the Defendant has waived his right to argue uncontested issues.
I. THE DEFENDANT DOES NOT RESPOND TO THE DUE PROCESS CLAUSE
CLAIM UNDER THE FOURTEENTH AMENDMENT.

Plaintiffs presented cases and arguments supporting the challenge to the state law under
the Fourteenth Amendments Due Process Clause. These arguments included detailed case
support and analysis showing the denial of the Browns fundamental liberty interests in their
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familial living arrangements in their homes, including romantic partnerships. Defendant does
not mention, let alone respond, to the specific arguments raised by the Plaintiffs. The closest he
comes is a three-line paragraph that notes that the court in Potter rejected a privacy claim. Def.s
Mem. at 6. What remains are brief conclusory statements that are not responsive to the pages of
argument presented regarding the Due Process Clause.
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As for the section challenging the law as
unconstitutionally vague, the Defendant does not even use the word vague. On the basis of the
Plaintiffs prior arguments and lack of response from the Defendant, the Court should grant
summary judgment on the basis of the Due Process Clause.
II. THE DEFENDANT DECLINES TO RESPOND TO THE CLAIMS UNDER THE
EQUAL PROTECTION CLAUSE.

The Plaintiffs stated a variety of specific claims under the Equal Protection Clause of the
Fourteenth Amendment. Again, the Defendant simply declines to respond to any of these
arguments. Indeed, equal protection is mentioned just once in a passing description of one
case.
5
Def.s Mem. at 9. As such, and on the basis of the uncontested prior argument, the court
should order summary judgment on the equal protection claim.
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Indeed, the Defendant does not respond to either the argument under either a heightened
level of scrutiny or the rational basis test. He does not contest that the definition of marriage . .
. is impossible to delineate in a broad variety of scenarios. Pls. Mem. at 19. Likewise,
Defendant does not contest that the cohabitation prong of the statute is dramatically overbroad,
particularly when it impinges so directly on private adult conduct in the home. Pls. Mem. at 14.
5
The Defendant again ignores argument on the application of heightened scrutiny (or even
the rational basis test) and does not contest the argument that the Browns should be considered
members of a suspect class as part of a discrete and insular minority. The Defendant also do not
contest that the law should be subject to more searching review because it implicates so many
other constitutional provisions, nor does he contest that that he engaged in selective prosecution.
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III. THE DEFENDANT DECLINES TO RESPOND TO THE CLAIMS UNDER THE
FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.

The Plaintiffs presented specific arguments on why Utah Code Ann. 76-7-101 imposes
a substantial and unconstitutional burden on the free exercise of religion for the Brown family
and other plural families. The Defendant again chooses to remain silent on the specific claims
and arguments in this section. Notably, the Defendant does not actually make a claim under any
specific constitutional test, but just describes the holdings of past cases. While conceding that
the law can no longer be justified on the basis of upholding good order and morals of society,
the Defendant simply claims conclusorily that polygamy represents a social harm without
addressing Plaintiffs express refutation of this claim. Compare Pls. Mem. at 35-41, with Def.s
Mem. at 5. Defendant does not respond to the argument that there is no record supporting social
harm posed by families like the Brownsa family that Defendant acknowledges has no pending
allegation of criminality of any kind other than the violation of the statute.
6
The Defendants
briefs conclusory reference to free exercise is obviously in support of its own motion and is not
responsive to either the factual or legal claims made by the Plaintiffs. As such, on the basis of
the prior argument, the court should order summary judgment on the free exercise claim.
IV. THE DEFENDANT DECLINES TO RESPOND TO THE CLAIM UNDER THE
FREE SPEECH CLAUSE OF THE FIRST AMENDMENT.

The Defendant not only declines to respond to the claim that the statute violates the
guarantee of freedom of speech, he does not even mention free speech once in his filing, either in
his supposed response to the instant motion or in support of summary judgment in his own favor.
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Likewise, the Defendant leaves uncontested the specific arguments showing that social
harms attributed to polygamy are found in equal or greater numbers among monogamous
marriages, from child abuse to spousal abuse to welfare fraud.!
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It is entirely unclear how the Defendant believes he can prevail on either filing without even
mentioning one of the central claims. Defendant leaves uncontested the claim that his words and
actions reflect a contest-based retaliation against the Browns. He also leaves uncontested the
argument that the public statements and the investigation were intended to deter other families
from similarly coming forward in such a public way. Pls. Mem. at 42. Finally, the Defendant
does not contest that these prosecutors have repeatedly emphasized that all plural families are
de facto criminals under this law, but they determine when the law will be enforced and against
whom. Id. at 43. The failure to contest this claim or the underlying arguments should result in
an order entering summary judgment against the Defendant.
V. THE DEFENDANT DECLINES TO RESPOND TO THE FREE ASSOCIATION
CLAIM UNDER THE FIRST AMENDMENT.

The Defendant also declines to respond to the legal and factual arguments presented
under the right of association inherent in the First Amendment. The Defendant offers only one
reference to association in the description of a case.
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With these arguments and facts
uncontested, the court should enter summary judgment on the denial of the right to association.
VI. THE DEFENDANT DECLINES TO RESPOND TO THE CLAIM UNDER THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.

The Defendant entirely ignores the Plaintiffs claim under the Establishment Clause.
While seeking both a denial of the instant motion and summary judgment in its favor, Defendant
again makes no mention of the claim and does not even use the word establishment in its
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! Defendant simply leaves uncontested the arguments that the statute violates both stated
forms of association, including the factual assertions showing that the Browns were engaged in
expressive association through their program. Likewise, the Defendant does not contest that the
law prevents or punishes the establishment of intimate relationships. !
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filing. The Defendant does not contest the application of the strict scrutiny test or the factual
basis for the establishment challenge. Likewise, he does not address the factual assertions
showing that the state cannot justify the targeting of plural families under any theory of harm.
The Defendant has chosen to remain silent on the relevant test or how it should apply in the case.
As such, the Court should order summary judgment in favor of the Plaintiffs under the
Establishment Clause of the First Amendment.
VII. THE DEFENDANT DECLINES TO RESPOND TO THE CLAIM UNDER 42
U.S.C. 1983.

The Plaintiffs argued that the Anti-Bigamy statute stands in violation of 42 U.S.C.
1983. The Defendant not only declines to respond to the claim but also fails to even mention
1983 in his filing seeking a denial of the claim. The Plaintiffs have presented the legal and
factual foundation for this claim, which stands uncontested by the Defendant. As such, the Court
should enter an order of summary judgment under 42 U.S.C. 1983.
VIII. REYNOLDS DOES NOT CONTROL THIS CASE IN LIGHT OF SUBSEQUENT
CASELAW.

While the discussion of Reynolds and Lawrence are clearly directed at the Defendants
own Motion for Summary Judgment, it is important to address a fundamental misunderstanding
of the existing precedent, including cases such as Potter v. Murray City, 760 F.2d 1065 (10th
Cir. 1985). The Defendants heavy reliance on Reynolds v. United States, 98 U.S. 145 (1878) is
astonishing given the disrepute of that decision due to its prejudicial and racist content. See
Kenneth W. Starr, Liberty and Equality Under the Religion Clauses of the First Amendment,
1993 BYU L. Rev. 1, 2 (1993). Notably, this decision preceded the recognition of basic concepts
like privacy, which is among the bases for the instant motion. Even the Defendant acknowledges
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that Reynolds preceded the Courts recognition of such rights. Def.s Mem. at 6.
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Moreover, the
decision was confined to a free exercise claim (under the limited precedent of the time) and thus
would not be relevant to the Plaintiffs claims even if it were still good law. Cases are routinely
set aside or substantially abridged without the formal act of overturning them.
9
That is the case
with Reynolds. As such, its precedential value to this court is questionable.
10

Any person reading Reynolds would recoil from the venomous and biased language used
by the Court. See, e.g., Reynolds, 98 U.S. at 164 ([p]olygamy has always been odious among
the northern and western nations of Europe, and, until the establishment of the Mormon Church,
was almost exclusively a feature of the life of Asiatic and of African people.). The Court in
Reynolds expressly vented its prejudice against Mormons and the inculcation and spread of the
doctrines and usages of the Mormon Church, or Church of Latter- Day Saints. Id. at 48-49; see
also id. (denouncing practices contrary to the spirit of Christianity, and of the civilization which
Christianity has produced in the western world.). Even setting aside such sectarian and racial
animus, the Court insisted that the government had the power to abrogate the most basic rights of
marriagea position that is clearly not good law. Thus, the Reynolds Court insisted that a state
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Notably, the Defendant acknowledges that courts can no longer rely on good order and
morals of society to justify such laws. Def.s Mem. at 5. Yet, it later relies on Reynolds, which
stands for precisely the same type of basis for the criminalization of plural relationships.
9
! The Reynolds Court was infamous for an array of rulings during this period that denied
basic constitutional rights. Reynolds was handed down just four years before Pace v. Alabama,
106 U.S. 583 (1883), where the Court upheld Alabama's anti-miscegenation statute (including a
majority of the Justices who signed on to the Reynolds decision).!
10
The principle of stare decisis was not meant to keep a stranglehold on developments
which are responsive to new values, experiences, and circumstances. Smith v. Arbaughs Rest,
Inc., 469 F.2d 97, 105 (D.C. Cir. 1972).
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could just as easily prohibit monogamy: [I]t is within the legitimate scope of the power of every
civil government to determine whether polygamy or monogamy shall be the law of social life
under its dominion. Id. at 166. Presumably, under the Defendants logic, this statement is also
valid since the Reynolds decision has not been overturned and has been cited in a few opinions.
11

The reliance on Potter is also misplaced because that decision preceded the ruling in
many of the decisions cited by the Plaintiffs, including Lawrence. The Defendant simply does
not respond to the Plaintiffs lengthy discussion of Potter. See Pls. Mem. at 10-13, 38-39. The
Potter panel found that no fundamental privacy interest existed with respect to plural marriage.
Yet, the Supreme Courts subsequent decision in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992) rejected this narrow, specific method of inquiry.
Lawrence v. Texas, 539 U.S. 558 (2003), clarified and built on the Casey holding. Lawrence was
the latest iteration in a long series of constitutional decisions amplifying a core protection of
private relationships. When the Defendant finally gets around to discussing Lawrence,which is
addressed in roughly a single page, he makes a curious distinction: Neither Utahs constitutional
provision banning polygamy, nor the States bigamy statute criminalizing polygamy, prohibit
Plaintiffs private sexual conduct. Those provisions do, however, regulate marriage which is
something more than regulated sexual relations. Def.s Mem. at 10. However, the Anti-Bigamy
law is neither drafted nor applied to protect marriage because it expressly prohibits cohabitation.
See Utah Code Ann. 76-7-105 (A person is guilty of bigamy when, knowing he has a husband
or wife . . . cohabits with another person.). It does not criminalize casual adulterous relations
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The Defendant fails to recognize that the very basis for Lawrence v. Texas, 539 U.S. 558
(2003) is entirely denied by Reynolds. If Reynolds were still good law, Lawrence could not exist.
Case 2:ll-cv-00652-CW-BCW Document 7l Filed 08/3l/l2 Page l0 of l4
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with married individuals or having children through such relations. Rather it effectively
criminalizes a private relationship, as did the statute in Lawrence. Indeed, it is the Plaintiffs who
are arguing that the state can prohibit multiple marriage licensesa narrowly tailored law that
directly supported the legal institution of marriage. It is the Defendant who wants to retain the
right to prosecute consenting adults for their private relationships or cohabitation. The Defendant
seems caught between stages of grief under the Kubler-Ross scale, the transition from denial to
transference.
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The Defendant insists that Plaintiffs try to equate private sexual conduct in the
home with marriage. Id. at 10. It is the Defendant who is insisting on the right to prosecute
people for cohabiting regardless of whether they are legally married. Defendant further insists
that people who cohabitate in private are actually engaged in public conduct. Id. That last point
is wisely left unexplained.
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CONCLUSION
In light of the foregoing, the Plaintiffs respectfully request summary judgment in their
favor on the grounds that Utah Code Ann. 76-7-101 is unlawful under the First and Fourteenth
Amendments as well as 42 U.S.C. 1983.
Respectfully submitted,
/s/ Jonathan Turley_____
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!! See generally Elizabeth Kubler-Ross, On Death and Dying (1969).!
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The Defendant offers one line that there are economic implications of plural
relationships without explanation. Def.s Mem. at 10. He leaves uncontested arguments and
facts rebutting the assumption that all plural relationships cause harm. It is unclear what the
economic implications are for citizens of Utah who choose to cohabitate as opposed to people
who have children outside of marriage or have children in monogamous relations.

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Jonathan Turley (Pro Hac)
2000 H St., N.W.
Washington, D.C. 20052
(202) 994-7001
jturley@law.gwu.edu

Adam Alba, 13128
610 Crestwood Cir.
Bountiful, UT 84010
(801) 792-8785
adam.alba@gmail.com
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
This is to certify that copies of the foregoing Reply Memorandum of Points and
Authorities for Summary Judgment was served by electronically filing the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to the
following:
Jerrold S. Jensen (#1678)
Thom D. Roberts (#2773)
Assistant Attorneys General
Attorneys For Defendant
160 East 300 South, 5th Floor
P.O. Box 140857
Salt Lake City, Utah 84114-0857
Telephone: (801) 366-0353
jerroldjensen@utah.gov
thomroberts@utah.gov

Ryan B. Parker (#11742)
Department of Justice, Civil Division
20 Massachusetts Ave NW
Washington, D.C. 20530
Telephone: (202)514-4336
ryan.parker@usdoj.gov
DATE: May 31, 2012
/s/ Jonathan Turley_____
Jonathan Turley (Pro Hac)
2000 H St., N.W.
Washington, D.C. 20052
(202) 994-7001
jturley@law.gwu.edu

Adam Alba, 13128
610 Crestwood Cir.
Bountiful, UT 84010
(801) 792-8785
adam.alba@gmail.com

Attorneys for Plaintiffs
Case 2:ll-cv-00652-CW-BCW Document 7l Filed 08/3l/l2 Page l4 of l4