- Associated Press - Wednesday, July 25, 2012

SALT LAKE CITY (AP) - Kody Brown and his four wives just want to live like any other family _ free from the threat of being tossed in prison.

But in Utah, just claiming to have more than one wife is a third-degree felony punishable by a sentence of up to five years.

The polygamous family, stars of the TLC show “Sister Wives,” has sued Utah and the county they fled from, hoping to persuade a federal judge to overturn the state’s bigamy law as unconstitutional.

The case could potentially decriminalize a way of life for tens of thousands of Mormon fundamentalists practicing polygamy, most of whom live in Utah.

The state, meanwhile, has publicly said it won’t prosecute consenting adult polygamists unless there are other crimes involved, but insists the law doesn’t overreach.

“It is not protected under religious freedom because states have the right to regulate marriage,” said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff.

Utah County Attorney Jeff Buhman in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, claiming the Browns no longer have standing since they aren’t subject to prosecution.

During a hearing Wednesday in federal court in Salt Lake City, a judge repeatedly asked state prosecutors why he shouldn’t allow the case to move forward.

U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was “simply a ruse to avoid having the issue reviewed.”

“What’s the policy reason behind this … that would give assurances that similar prosecutions will not be pursued in the future?” Waddoups asked. “What about the next couple?”

Assistant Attorney General Jerrold Jensen, arguing on behalf of Utah County, said there is none, but noted there are at least 30,000 practicing polygamists in Utah.

“They are not being prosecuted,” Jensen said. “Utah County does not want to prosecute people for the practice of polygamy, period.”

Jensen could not say the threat of prosecution of other polygamous families had been entirely removed, but reiterated state policy.

“The plaintiffs here are not going to be prosecuted therefore the case is moot,” he said.

Earlier this year, Waddoups released Shurtleff and Gov. Gary Herbert from the case, citing the state policy that polygamists won’t be prosecuted for violating the bigamy law alone. He allowed the case to continue against the county because, at the time, prosecutors there had not made the same declaration.

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