Federal Court Rules In Favor Of Sister Wives Lawsuit; Denies Second Motion To Dismiss

Just an hour ago, Judge Clark Waddoups handed down an opinion denying the second motion to dismiss filed by the government. Despite predictions that the motion would succeed, Judge Waddoups has now set the case for final arguments on the merits and rejected the claims of the government that the case is now moot after it announced that it would not prosecute the Brown family.


This was the second effort to dismiss the case without a ruling on the constitutionality of the statute by the government. The first motion to dismiss was based on a claim of lack of injury. This second motion to dismiss is based on the claim that the matter is now moot. The government asked the Court not to rule on the constitutionality of the state law in light of recent changes in policy.

The court holds:

Mr. Buhman’s non-prosecution policy was implemented more than eighteen months after the alleged conduct that gave rise to this suit occurred. As discussed above, the timing of the policy implementation, lack of any public notice, and lack of reasoning given for adopting the policy suggest that the policy was implemented, not to provide a remedy to Plaintiffs in this case, but instead to evade review of Plaintiffs’ claims on the merits. Moreover, the policy implemented by Mr. Buhman does not provide Plaintiffs with all the relief they are seeking. It has already been established that the policy at issue is insufficient to alleviate the risk that Plaintiffs will be prosecuted or threatened with prosecution for their violation of Utah’s anti- bigamy statute in the future. Plaintiffs are seeking a declaration from the court that the statute is unconstitutional and a permanent injunction against enforcing the statute against them “on the basis of their consensual plural family association.” Civil Rights Complaint 39 (Dkt. No. 1).

Plaintiffs are also seeking relief under 42 U.S.C. § 1983 for injury they claim to have suffered because of threats of prosecution. The policy of Mr. Buhman’s office falls far short of providing Plaintiffs with all the relief they seek.

As previously noted, I must remain circumspect in any public comments on the case since I am serving as lead counsel for the Brown family. However, on behalf of the Browns and the legal team, I wish to express our thanks to the Court in clearing the way for a ruling on constitutionality of the anti-Bigamy statute. While our opposing counsel Mr. Jensen and Mr. Roberts should be credited with an impressive and determined defense of their client, this decision shows that there will be no alternative to a ruling on the merits in this case. I am grateful for the inspired work of our legal team including Adam Alba, Geoffrey Turley (no relation), Matthew Radler and Gina D’Andrea.

The decision does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family. Regardless of the outcome on the summary judgment motions now scheduled by the Court, both the Brown family and the people of Utah can now expect a ruling on the power of the state to criminalize private relations among consenting adults. It is a day that the Browns and many plural families have waited a long time to see in Utah. They are profoundly thankful to Judge Waddoups for allowing that day to come.

Jonathan Turley

Here is the opinion: Order Denying Motion to Dismiss

119 thoughts on “Federal Court Rules In Favor Of Sister Wives Lawsuit; Denies Second Motion To Dismiss

  1. I believe in giving people their freedom, but of course I also believe that people are responsible for the consequences of their own actions. Believing Mormons need to learn and understand that polygamy in ANY form is an abomination to God and there are no exceptions. In fact, for those who read and believe in the Book of Mormon, it doesn’t take long to see how polygamy became one of the reasons for the destruction of the Nephites, mainly because it was also one of the reasons for the destruction of Jerusalem as explained in Jacob 2.

  2. You can almost hear it coming whenever you read a “I believe in blah blah,
    BUT…”.

    BROTHER DAVE — based on your expressed view, your concern will soon
    end, given that Mormon polygamy has been around for a fairly long period of time now.

    Hopefully, that will bring you some level of comfort.

  3. @Dave P. “polygamy in ANY form is an abomination to God and there are no exceptions”

    Well maybe so. But since God is omnipotent it would seem that God could take care of problems like this all by him or her self. It is still a mystery to me what the state should be involved with the enforcement of God’s will – unless the state is a theocracy.

    On the other had, since God does not seem to have taken an active role in punishing polygamy, perhaps he or she is actually indifferent to polygamy. Perhaps the idea that polygamy is an abomination is actually confusion regarding the true will of God.

    Is it possible that the true interest of God has to do with loving relations regardless of the specific identities of those involved in the relations?

  4. J. Brian Harris, Ph.D., P.E. 1, August 17, 2012 at 9:51 pm

    Is there any viable alternative to one or another form of coercion other than living in harmonious accord with individual conscience in ways that are not actually abusive?
    ====================
    Do you think you can hypnotize me. Don’t bet on it.

    Sorry if I’m being an a**.

  5. I suppose a state can say that we each get one drivers license, but then extend that to one marriage license. But a fundamental right of privacy under the Ninth Amendment would not allow a state to deny a marriage or penalize one for a second marriage. Marriage is a matter of privacy and is a right not usurped by the federal government in the text of the constitution nor usurped by the states in the federal constitution. As with the right to decide one’s own pregnancy, a right of privacy extends to one’s family relationships. When the cops want to question me about something I have a right to remain silent under the Fifth but I have a Ninth Amendment right to privacy and can take the Ninth as well as the Fifth. These people should invoke the Ninth Amendment.

  6. itchinBayDog 1, August 17, 2012 at 10:57 pm

    The Constitution is subjective. Like almost everything else. I will take on any shrink any time. They will lose. If they want to find out they can’t do it, that’s up to them.

  7. Dave P: I find it odd that when I read the same book, you seem to have read, I find no passage condemning polygyny. King David had several wives at the same time, was called a man after God’s own heart and was only called out for adultery when he took another man’s wife but not for his other wives… are we reading the same book?
    We don’t live in a theocracy, thank God.

    Congrats to Prof Turley and the team.

  8. Congratulations. Wow, the state realy, realy didn’t want to answer the question and has delayed as long as possible but it’s on now! Lots of luck in arguing the actual case.

  9. AY,

    It’s not yet an Obama scud. This is Utah, only

    But, I would think it could be a scud for Romney. Can’t believe he wants this on people’s mind come election day. Has there been a previous discussion on how this may impact federal law?

  10. Did someone commenting above blame President the Obama for this Mormon dog fight? I see it as one side of the Morman conflagration against another. The State of Utah prevents a male from having several wives even if they live in different houses and are “separate but equal”. The separate but equal doctrine was struck down by the U.S. Supreme Court many years ago but the separate but equal people keep on fighting. They are barking up the wrong tree. I suggested above, but nobody else bit, that the right of privacy argument under the Ninth Amendment could carry the day. These rights of the people are nowhere outlawed in the federal constitution and therefore remain with the people. I sure hope that Turley and his lawyer pack are not barking up the “separate but equal doctrine” in Utah state courts or Utah federal courts. Our dogpack has has a standing rule that no two dogs are equal and that it is darn near impossible to separate guys like HumpinDog from anything, much less a female dog. He claims rights under the so-called Equal Rights Amendment but we in the dogpack think he is barking up the wrong tree on that one. If I was living in Utah and those Mormons caught me with more than one wife, I would be Taking The Ninth.

  11. This is getting interesting, I thought that the court would avoid the big issues (as they often do), but this could set some real precedent in constitutional and family law. I congratulate Mr. Turley and his team on getting this far.

  12. Many thanks and Gratulations to you Professor Turley and your legal team for another frequent victory in attaining civil rights for us.

    I wonder if the state will move to settle the section 1983 action in short order, perhaps it might be to try to deflect having a judgement against them setting a precident. I know circumspection is of importance but I wonder if the family might want this to come to a conclusion.

    I tend to believe that some cases are of such greater importance if it goes to a ruling of a jury and sets a historic decision to solidify the action for others.

    Sadly, it is the case where individuals who are up against the government or a large corporation in a civil rights action that these folks are the ones who tend to pay the highest price in terms of worry and cost (often more than economic) It is from this that we should also afford the Brown Family as much acclaim for their courage and resolve to endure the ordeal so that others will not have to.

  13. Polygamy is a much less offensive lifestyle than same sex marriage or even opposite sex couples cohabitating and having children out of wedlock.

  14. The real gist of the case at this stage was explained by JT:

    The decision [denying motion to dismiss] does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family. Regardless of the outcome on the summary judgment motions now scheduled by the Court, both the Brown family and the people of Utah can now expect a ruling on the power of the state to criminalize private relations among consenting adults.

    This gets back to Lawrence v. Texas – 539 U.S. 558 (2003).

    The case was cited in the complaint as I mentioned on another thread.

    As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom.

    Lawrence involved state criminalization of that behavior between homosexuals.

    The current case involves one marriage license, yet multiple non-homosexual relations between several women and one man.

    It seems to me that the principles enunciated in Lawrence are controlling in the context of the facts of the case.

  15. Michael J. Marsalek,
    There are a lot of things that are personally offensive to my delicate sensibilities, but they are legal and should remain legal. I don’t like broccoli, but would not think of keeping others who like it from having it if they want it.

    As for gays somehow disrupting heterosexual marriages, all I can say is that if a marriage is that fragile, then the couple has a bigger problem than the gay couple down the street.

  16. What OS said.

    And Dredd, it may seem that Lawrence would be controlling but the courts have a fair amount of wiggle room provided by the different fact patterns vis a vis licensing. I used to be in the “contractually formally valid so why not camp” concerning licensed polygamy until Elaine and (I think) anon nurse turned me on to some studies that revealed some fairly convincing valid social policy reasons based in both psychology and sociology to not allow the practice formally. When balanced against other competing issues (free exercise, etc.), this could still go either way once a hearing on the merits is had. As the Prof. himself notes, “[t]he decision does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family.” While the denial of the Motion to Dismiss is a technical victory leading toward finality based on a full and fair hearing on the facts, Lawrence is not factually similar enough to be prime facie controlling (although I’m sure it will play a substantial part in the arguments).

    And congrats, Jonathan.

    I look forward to seeing how this issue plays out.

  17. I really can’t find this all that exciting. Marriage is not a private contract; it is a state-involved thing. I don’t know how it will play out when one of seven spouses wants to divorce two out of the five others, do you? At the bottom of it, I have begun to wonder what is so sexy about some constitutional issues and cases while others die in vacuums. I remember becoming quite exercised in 1986 when I tried to find legal help for a true constitutional issue (A CHILD BEING ENTITLED TO REPRESENTATION IN A CUSTODY BATTLE ABOUT HIM) when one of the top constitutional scholars in the country, at U/Penn, was working on constitutional animal rights of some dog named Torro. And I’m a dog-lover.

  18. Dredd

    “As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom….”

    I admit I neither read the decision nor am I an attorney, but I thought the ruling was considered narrow and decided not that the state (Texas) had NO jurisdiction but that the law as written prohibited certain acts if performed by some people (homosexuals) while allowing those same acts by others (heterosexuals). The decision may well have gone farther in defining a state’s or all states’ role in privacy, I don’t know for certain.

  19. Marsalek,

    Read my comment from yesterday about gay and lesbian couples enjoying their children here in Sweden. Come and see how it works.

    And let us not forget polyandry. Practiced in Mustang, a little buddhist Kingdom in Nepal. The shortage of women leads to the older brother sharing his wife with his younger brothers.

    The duties of the brother visavis his dead brother accdg to OT will not be mentioned further, but us noted.

  20. Malisha,

    Agree wholeheartedly with your main issue.

    And you do bring effectively why marriage is a state regulated matter, ie the “property and child rights” involved.

    Mohammad had his wives living in separate houses.
    The lethal battles of wives competing for the favor of their sons is another precedent, notably in the Ottoman Empire.

    Having ONE husband to abuse you is enough, having his other wives doing it would be too much.

    Or the japanese wife who is household slave in her mother-in-law’s home.

  21. “Polygamy is a much less offensive lifestyle than same sex marriage or even opposite sex couples cohabiting and having children out of wedlock.”

    Michael J. Marsalak,

    I would suggest that you do some study of the Constitution because you are under the mistaken impression that what is offensive to you should be prohibited. I personally find people who would look down on gay marriage and children born via cohabitation as extremely offensive individuals. Should my judgment of these people, perhaps yourself, be enforceable by law?

  22. Gene H. 1, August 18, 2012 at 9:00 am

    … Dredd, it may seem that Lawrence would be controlling but the courts have a fair amount of wiggle room provided by the different fact patterns vis a vis licensing.
    —————————————————
    rcampbell 1, August 18, 2012 at 9:44 am

    Dredd

    “As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom….”

    I admit I neither read the decision nor am I an attorney, but I thought the ruling was considered narrow …
    =========================================
    Justice Kennedy, who wrote the opinion in Lawrence, picked up on the notion of the Texas criminal statute, as well as the Bowers statute, being more narrow than his language in Lawrence would indicate:

    Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

    (Lawrence v. Texas – 539 U.S. 558, emphasis added). This is on all fours with the issues in JT’s Sister Wives case, in the sense that the state has a licensing right to only license one husband / wife relationship, but at the same time the other behavior, even though not licensed, is protected activity that a state cannot criminalize.

  23. The Lawrence court considered three issues, the second one being:

    “2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

    (Lawrence v. Texas – 539 U.S. 558). The issue of “criminal convictions for adult consensual sexual intimacy in the home” is the case in chief in the present Sister Wives case.

    The Sister Wives are not asking for a state license for polygamy, they are only asking not to be criminally prosecuted for their adult consensual behavior in the privacy of their home.

    This seems to me to be well within the parameters of Lawrence.

  24. Totally missing the point as usual, Dredd.

    The state has the right to license and/or prohibit any behavior it can show a valid state interest in licensing and/or prohibiting. Given the difference in fact patterns (homosexuality does not equate to polygamy just because certain segments of society don’t like it; fallacy of false equivalence) and vastly different sociological and psychological impacts of polygamy when contrasted with homosexual relationships, that the anti-polygamy statue in question doesn’t constitute both a valid state interest and doesn’t substantially impair any Constitutional rights in pursuing valid state interest(s) is not a given. So, like I said, the factual patterns are different enough so that Lawrence isn’t prime facie controlling although it will play substantially into the arguments. Either new law will be created or the statute will be upheld.

    Feel free to disagree all you like.

    Now where did you go to law school again?

  25. Gene H. 1, August 18, 2012 at 10:59 am

    Totally missing the point as usual, Dredd.

    Now where did you go to law school again?
    ===========================================
    Where I went to law school will not have any impact on the case, so it is irrelevant.

    And it is you who is missing the point, which is a consequence of your misreading of Lawrence.

    Homosexuality or any other sexuality is not a pertinent factor, and was not considered in reaching the decision, making it dictum:

    The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

    II

    We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.

    (Lawrence v. Texas – 539 U.S. 558). Therefore, as in Lawrence, “the [Sister Wives] case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty”.

    The material facts are as they were in Lawrence: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.”

    The fact that the state backed off, as did the county, in terms of publicly stating they would not prosecute the Sister Wives is indicative that the state feels some heat from Lawrence, so they went further and asked the court not to decide the constitutional question.

    The relevant facts that were used to decide Lawrence are already established in the present Sister Wives case, so all that remains to be ruled upon is whether the act of two adults having consensual sex in the privacy of their home can be deemed criminal.

  26. No, but it is relevant to the fact that you are not interpreting the situation regarding applicability of Lawrence properly as they apply to this case which involves much more than just consensual sex between two adults in the privacy of their own home. But you stick to that false equivalence between homosexuality and polygamy all you like. It looks good on you.

  27. For those who have the Bowers impairment, listen to what the Lawrence court said to the Bowers court, and by extension is saying to you:

    The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake.

    (Lawrence v. Texas, 539 U.S. 558, emphasis added). That is why Bowers was reversed, the Bowers court had been way to narrow minded, failing to envision the ramifications of what the state was doing.

  28. The Lawrence court made it clear that the Bowers court was so narrow minded that they failed see that the scope was broad, not narrow:

    To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

    (Lawrence, supra, emphasis added). The liberty interest the Mr. Magoo [Bowers] court was looking at, but not seeing, is the liberty of consenting adults to do sexuality any which way they want to in the privacy of their home.

    The Lawrence court expanded the case law out to the proper boundaries, leaving grandpa’s narrow, Mr. Magoo vision of teensy weensy liberty in its wake.

  29. QUOTE “Consenting adults can live as they want to . Its called freedom.”

    TA DA!!!

    But careful how you bandy that freedom around, our country is getting LESS FREE everyday….

  30. Marriage equality is an economic issue; there are about two dozen economic advantages to marriage that a “civil union” couple cannot now benefit from. There are also other advantages (social and legal) to marriage.

    But let’s look at the polygamy issue from the economic viewpoint. If a guy has children with seven women but only one of the seven is his legal wife, and the other six mothers are single-parent households for tax purposes, census purposes, and entitlements, what are the economic ramifications?

    If a man has a family consisting of seven wives and 19 children, and yet his taxable income is under $100,000/year, and the women do not work outside the home, and two of the children are disabled, and one of the wives becomes disabled during the minority of some of the children, what economic benefits does THIS family get from the state and from the federal government? What about Medicare, Medicaid, and Social Security? Will all seven wives be able to collect widow benefits? What’s the deal here?

    If one out of the seven wives divorces the husband, will a custody battle that might result from that divorce involve the Division of Children’s Services possibly getting involved in the other 18 children’s lives? What will this look like?

    On the other hand, if a man has one wife and six other women living with him WITH their children and those children are HIS CHILDREN TOO, will the six other women have to declare half of the man’s income on their federal tax returns? On the six other women’s applications for food stamps and Medicaid, will they have to declare part of the man’s income because they live in his house?

  31. Problem with Romer v Evans. , Romer supports polygamy
    “remains to be explained how §501 of the Idaho Revised Statutes was not an “impermissible targeting” of polygamists, but (the much more mild) Amendment 2 is an “impermissible targeting” of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a “legitimate concern of government,” and the perceived social harm of homosexuality is not?”

  32. “Has the Court concluded that the perceived social harm of polygamy is a ‘legitimate concern of government,’ and the perceived social harm of homosexuality is not?”

    In re homosexuality, that is de facto the finding of the Court in Lawrence: the Constitutional liberty interests of the individual outweigh any other rationale for governmental interference with consensual sexual acts. Does the perceived social harm of polygamy rise to the level of a “legitimate concern of government” or will the liberty interests of individuals trump any of those concerns? That’s what is at issue in the current case at bar.

  33. “The state has the right to license and/or prohibit any behaviour it can show a valid state interest in licensing and/or prohibiting.”

    That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman.

    Lawarance argued what “Two Consenting Adults” Question becomes, Does “Two Adults” compound itself to 3 or more.

    We know anti-polygamy laws discriminate upon orientation so orientation is a non issue. We also know procreation itself can be regulated (first cousin marriage). The States interest then boils down to the benefit package and the question, should one State allow polygamy do the other States have to recognise it.

  34. “We know anti-polygamy laws discriminate upon orientation ”

    We know no such thing. Polygamy is less about gender than it is about multiple parties when the standard dynamic in human behavior (regardless of gender) is pair bonding. Anti-polygamy laws are policy against mutli-party relationships, not orientation which is a function of gender identity. That’s why it’s a non-issue. The key is form, not gender identities of the parties involved.

    Should the court (or SCOTUS if it comes before them) find that polygamy is protected by the Constitution? Then the details of succession/devolution issues, mutual capacities, rights to benefits, etc. will become an issue primarily for the legislature but secondarily for the lower courts. As with the issue of homosexual marriage, I’m sure the Full Faith and Credit issues will eventually be litigated as well.

  35. @Monte “That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman”

    Why is that the state interest?

    Why ‘offspring by natural procreation’. Why not by what ever method of procreation citizens find suitable and technically feasible?

    Why ‘limited to 1 man and 1 woman’. Why not limited only to citizens who choose to commit to the essential duty of parenting.

    I am sure readers can think of other reasonable formulations.

    Perhaps there are other readers who, like me, find that the more the state interest is explained the more it sounds like the assumptions and prejudices of the status quo.

  36. “We know anti-polygamy laws discriminate upon orientation ”

    We know no such thing.”

    Sure we do Anti-Polygamy laws discriminate upon the orientation of the Bisexual, therefore orientation is an invalid.

    “when the standard dynamic in human behavior (regardless of gender) is pair bonding. ”

    Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits

    1 man 1 woman spreads that discrimination equally across genders, makes the matter moot as illustrated in the Hawaiian case
    Hawaii
    The ruling also says that Hawaii’s marriage laws do not treat males and females differently as a class, so the laws do not discriminate on the basis of gender.

    @bigfatmike“That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman”

    Why is that the state interest?

    Why ‘offspring by natural procreation’.

    For that is what the State argues as the Constitutional basis for supporting marriage, that is why. matters not other opinion, the State is in charge of benefits distrubition

    Hawaii case reaffirms that claim by the State holding 1 man 1 woman marriage Constitutional

    ” There are various interests that the traditional definition of marriage, even alongside a regime of civil unions, can rationally be thought to serve: encouraging the stability of relationships that have the ability to procreate naturally (pp. 98-105); promoting the ideal that children be raised by both a mother and a father in a stable family unit (pp. 105-111); and cautiously experimenting with social change (pp. 111-116)”

    “Why not limited only to citizens who choose to commit to the essential duty of parenting.”

    Without compelling reason to hold marriage above all other pairings you run into 5th Amen arguments. Why should the co-habitation couple be denied benefits. Without cause all those individuals who are actively engaged in parenting are of equal standing married or not.

  37. “Sure we do Anti-Polygamy laws discriminate upon the orientation of the Bisexual, therefore orientation is an invalid.”

    The assumption is that all wives involved in a polygamous marriage are bisexual instead of practicing some form of serial heterosexuality.

    “Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits”

    No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals and relies upon a Biblical definition of marriage, not a psychological definition for pair bonding. Such bigotry doesn’t render the point moot. It merely furthers bigotry founded in religion that has nothing to do with what modern psychology tells us about how people bond with one another.

  38. @Gene H
    “Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits”

    “No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ”

    Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.

    Current laws do not discriminate against gender, Both genders are treated equally. To say they discriminate against homosexuals you must provide a unique qualifier to establish why they are different in class. Orientation is invalid. Other than self declaration their is no test for orientation. Claiming orientation includes the Bisexual orientation, plural marriage.

    What interest is their for the State to become involved in personal bonding?
    Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?

    Natural Procreation, the Constitutionality of, allows for the seperation

    States Constitutional argument and DOMA establish tax payers subsides benefits for marriage are based solely upon 1 man 1 woman, natural procreation. If that position is ruled Unconstitutional, then traditional marriage and the benefits are ruled Unconstitutional.

    However this case is not raising that issue directly, only the decriminalisation of the actions of private people

  39. @Monte ‘For that is what the State argues ,’

    Wait a minute. Now you are getting me confused. I think, and correct me if I am wrong, at first you said certain propositions are always the state interest as though some grand principle or self evident proposition were at stake. .

    Now you seem to be saying that certain propositions are the state interest because the state, in a particular situation, claims those propositions are the state interest.

    I think I have to conclude that what is claimed to be the state interest in a particular case or situation is not always the state interest. According to your most recent formulation, I have to believe that the state interest depends on who controls the machinery of the state – ie the administration. What the state claims is the state interest depends on elected state officials, the particular attorneys representing the state, perhaps certain influential interest groups, etc, etc.

    I think part of my point was that some people remark on ‘state interest’ or ‘compelling state interest’ as though we have an obligation to give that statement special deference or assume special credibility.

    But according to your most recent remark, I would have to conclude that ‘state interest’ is nothing more that the opinion of a few state officials masquerading as some sort of grand principle.

    Based on your remarks I think I have to conclude that we all have an obligation to critically examine ‘state interest’ as carefully as we examine any other opinion.

    Based on your most recent remark, I think I am still pretty comfortable with my previous remark to the effect that ‘state interest’ is just a way to rationalize the assumptions and prejudices of the status quo.

    The more some one claims ‘state interest’ the more I am inclined to ask why?

  40. @bigfatmike
    “The more some one claims ‘state interest’ the more I am inclined to ask why?”

    Which is fine to ask why, the answer may not suit everyone

    Question to be answered is
    Under what Constitutionally valid claim does the State support traditional marriage?

    Some unique qualifier must exist to hold one group above the others, To date natural procreation is the argument of the majority.

    ie: you desire a portion of my taxes to subsides your marriage, upon what claim gives you the authority to take from me?

    Natural procreation is that authority

    I have no interest in your marriage based upon a committed relationship any more than the committed relationship of the co-habituating couple.

    The question yet to be answered is
    What is the Constitutional basis to support marriage?

    Hawaii reaffirms traditional marriage is Constitutional which was put into question years ago.
    Following the Supreme Court’s ruling in Baeher, then, the State confronts a situation whereby existing heterosexual marriage is ‘‘presumed to be unconstitutional

  41. “Furthermore, Mr. Buhman’s declaration clearly indicates that he believes the statute could be properly enforced, if the prosecutor exercises his discretion to do so, against an individual who violates Utah’s anti-bigamy statute when the individual is also committing some other crime specified in the policy.”

    Utah holds natural procreation as the basis for supporting marriage.
    Utah Constitution, Art. 1, Sec. 29 (2004) limits marriage to the legal union between a man and a woman, and restricts unmarried domestic unions

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

  42. It is my impression that Mormons do a wonderful job of taking care of their own, through the church. Admirable community. Bishop Romney tiths his 10% to the church, spins it as akin to a tax, as he used the total of his 13% + his 10% tith to infer he pays 23%. Cannot Bishop Romney’s substantial support of the church be said to support plural familial associations?

    Another way to look at it, Bishop Romney really is misunderstood. Anne’s
    right, he really is a wild and crazy guy. Plural arrangements, It’s just another name for “swinging”. I am sure Mr Hefner and Mitt will be quite comfortable as bedfellows.

    Regards,
    Lexmanifesta

  43. They’re Not The Same

    The Salt Lake Tribune published an article yesterday in which a Deputy Attorney General made some remarkable comments about Kody Brown’s challenge of Utah’s lame bigamy statute. In a state whose principal church successfully tells whopping lies to its membership it is not hard to notice that senior law enforcement representatives live in utter la-la-land.

    Jerrold Jensen, whose unenviable task is to face down Jonathan Turley, suggested to Tribune reporter, Lindsay Whitehurst, that the 2003 Lawrence v. Texas decision will not help the Browns’ case. Just so you can see the absurdity of his thinking, let me play this out in simple terms.

    When John Geddes Lawrence and his male partner were arrested in Texas for gay sex acts, it had nothing to do with any attempts to marry. Their crime was their private homosexual sexual activity. Gays all across the nation would love to get legal marriage licenses. That’s what Proposition 8 was all about. They don’t just want “legal unions”. They don’t want merely not to be classed as criminals any more – they want legal, state marriages – – you know – the kind with a state marriage license and certificate – the kind that only legal divorces can undo.

    Polygamists have private sex – just like other married and single Americans. The Lawrence decision made all of that legal, – constitutionally protected. The sex and the private expression of it between (or among) consenting adults is beyond government’s power. Polygamists cannot be charged for their private sex, and Utah law enforcement officials damn well know it – which is why they now: a.) will never charge consenting adult polygamists, and they: b.) dread having to defend the bigamy statute. They insist that the law is constitutional, but they insist on not enforcing it. Let us read what AG Jerrold Jensen said –

    ‘. . . State lawyers, on the other hand, point to other court decisions upholding the ban and say marriage can be regulated by the government. They argue the law is fairly applied to both polygamists and people who commit fraud by marrying more than one unknowing person at a time. Deputy Utah Attorney General Jerrold Jensen said polygamists shouldn’t rely on Lawrence v. Texas, the landmark 2003 right-to-privacy case that struck down laws banning intimate homosexual contact.

    “Plaintiffs try to equate private sexual conduct in the home with marriage,” he wrote in court documents. “They are not synonymous.”‘

    Honestly, I am confused by his argument. He says that we polygamists equate our private sexual conduct with marriage. No, we don’t. We speak of our ladies as “wives”, but neither in Arizona nor in Utah does the state recognize or legitimize these religiously-framed relationships. In fact, in Utah, such relationships cannot claim official marriage status, because they are voided by law.

    30-1-2. Marriages prohibited and void.
    The following marriages are prohibited and declared void:
    (1) when there is a husband or wife living, from whom the person marrying has not been divorced;
    (2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
    (3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
    (4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
    (5) between persons of the same sex.
    (6) Marriages between cats and dogs (yes, I added this one !!!)

    I think what Jensen is trying to say is that the crime we polyg’s commit is that we think of our partners as “wives”, even though the state forbids such thinking, and that we become felons because we wish our relationships were licensed. On the contrary, we don’t wish to have our unions legitimized by the state, and certainly no homosexual has ever been arrested for wishing he could have a marriage license. Furthermore, Mr. Jensen, it seems to me that it is the state that wants to classify our non-legal relationships as “marriages”, so that it can find us guilty of committing bigamy. Tom Green spent several years in prison for having multiple wives, even though he was legally single.

    Jensen is ostensibly conceding that Lawrence will protect the Browns’ sexual activities, but it will not protect the lifestyle they have adopted. I agree. Lawrence was never about lifestyle or relationships – it was only about private sex. However, when Jensen gets to argue his tortured reasoning in January, will he be able to point to a single statute or a Supreme Court decision that affirms the criminality of a RELATIONSHIP !!!!!!!!!!!!!!!!! ? I can hear Judge Waddoups giggling already. Will Jensen argue that our crime stems from our improper use of the word “wife”?

    In the 1940’s, one of Rulon Allred’s wives was arrested for playing the piano at a church frequented by polygamists. If Utah still thinks that kind of tyranny is okay, I should move to France.

  44. Renn Oldbuster,

    Your comment was well argued. It is clear that the Utah prosecution is actually one that deals with the state of mind of polygamists. That they do not try to use the States legalities of marriage, but do consider themselves as being married appears to be intolerable to the State (LDS?). While polygamy is a lifestyle that doesn’t interest me, as long as it involves consenting adults in non-exploitative situations, I think it is none of the business of the State how people decide to live their lives. More-so, I believe that freedom of choice is Constitutionally protected.

  45. Monte,

    “Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits” [that is your assertion about a legal fact]

    “No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ” [this is my assertion about a psychological fact]

    Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.”

    Ergo, I don’t have to establish a damn thing, Monte. You need to establish that pair bonding (a psychological and sociological concept) is narrowly defined to one man and one woman and that such a limitation on gender is permissible Constitutionally (a matter being decided currently on a state by state basis). Your definition of pair bonding relies upon a religiously loaded definition instead of scientifically based definition. There is no compelling state interest in defining marriage as between one man and one woman. For the tax and benefit provisions you are discussing, the DOMA was declared unconstitutional in a unanimous decision by the 1st U.S. Circuit Court of Appeals. Your definition of marriage? Not addressed. Until (unless) SCOTUS hears the case? It is still unconstitutional to define marriage as between one man and one woman for tax and benefit purposes. Also Section 3 of DOMA has been found unconstitutional in seven federal courts on issues including bankruptcy, public employee benefits, estate taxes, and immigration. There are currently five cases related to DOMA awaiting cert. Again, you wish to argue apples and oranges: gender and sexual orientation is irrelevant to the issue of plural marriage.

    “Current laws do not discriminate against gender, Both genders are treated equally. To say they discriminate against homosexuals you must provide a unique qualifier to establish why they are different in class. Orientation is invalid. Other than self declaration their is no test for orientation. Claiming orientation includes the Bisexual orientation, plural marriage.”

    Again, gender and sexual orientation is irrelevant to the issue of plural marriage. Plural marriage and homosexual marriage are a false equivalence for the purposes of valid state interests.

    “What interest is their for the State to become involved in personal bonding?
    Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?

    Natural Procreation, the Constitutionality of, allows for the seperation

    States Constitutional argument and DOMA establish tax payers subsides benefits for marriage are based solely upon 1 man 1 woman, natural procreation. If that position is ruled Unconstitutional, then traditional marriage and the benefits are ruled Unconstitutional.”

    The Section 3 of DOMA you refer to is unconstitutional until and unless SCOTUS says otherwise, your wishful thinking on how stare decisis, the finality of decisions and the appeals process work notwithstanding.

  46. Gene
    “No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ” [this is my assertion about a psychological fact]

    Pair bonding for marriage and associated benefits is limited to 1 man 1 woman as argued by the State. Bonding is not limited by nature to just a Pair so your psychological argument is without merit.

    As I said “Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.”

    You go on with irrelevant, Sitution is simple
    If the marriage laws concerning 1 man 1 woman are Unconstitutional then so are the benefits afforded to those marriages.

    Anti-bigomy laws discriminate upon the orientation of the bisexual
    We know marriage is not a Fundamental right for 1st cousins are allowed to marry in some States and not others

    “What interest is their for the State to become involved in personal bonding?
    Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?

    Again, what interest is their?

    You say – “The Section 3 of DOMA you refer to is unconstitutional ”
    which simply means the Federal benefits afforded 1 man 1 woman married couples are also unconstitutional.

    This case seeks not State support as given to Traditional Marriage, This case seeks only not be held criminally liable for living a private and personal lifestyle. In that it brings to the fore front the States definition of who may marry reaffirms the States interest in marriage as 1 man 1 woman.

    “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

    Natural procreation, the sole unique qualifier that holds as constitutionally valid, the tax benefits given to opposite gendered marriage over and above any other relationship.

  47. Gene

    Then shall keep it simple for you

    “What is the Constitutionality basis of the 1 man 1 woman marriage laws.”
    What supports the State providing the benefits to such unions?

  48. I’ll keep it even simpler for you, Monte.

    The valid state interest in marriage laws like licensing is for the purpose of determining rights they have in relation to one another, third parties and the state regarding contracting, intestate devolution, surrogacy during incapacity, etc.

    I’m going to make this far simpler too.

    I’m not going to play your religiously loaded question game.

    You’ve grown tiresome in your zeal to define marriage narrowly and along religious terms in contradiction to the Establishment Clause.

  49. So they’re not refusing to exercise jurisdiction based on mootness, huh?

    Capable of repetition yet evading review?

    Federal courts do what they decide to do and then give their reasons. Plus ca change…

    I wish other issues of life interests could get into and stay in the federal courts. Only come civil rights are more equal than others.

  50. Gene

    “The valid state interest in marriage laws ”
    is what the state argues before the Court, not what you would like it to be. In order for you to change it you will have to gain the political will to do so and have that change subject to legal review.
    Right now the state says natural procreation 1 man 1 woman
    That plan infringes not upon any established rights.

    “contradiction to the Establishment Clause.”
    As the Hawaii case showed, existing Traditional Marriage laws are Constitutional

    You need a compelling reason to show why the current laws are unconstitutional

    “What is the Constitutionality basis of the 1 man 1 woman marriage laws.”
    If you do not know, just say so

  51. Blah blah blah.

    ““The valid state interest in marriage laws” is what the state argues before the Court, not what you would like it to be.”

    No. The valid state interests in marriage laws are exactly as I listed them although that list was not all inclusive. The whole 1 man 1 woman theocratic nutjob definition is at the heart of DOMA. I’ve already told you your religious definition of marriage has been held unconstitutional in re DOMA’s tax and benefits provisions and that definition is facing more challenges on more fronts.

    You’re the one who says “Right now the state says natural procreation 1 man 1 woman” and right now, that kind of discriminatory definition has been held unconstitutional.

    If you want to prove it is Constitutional, “Monte”? That burden of proof rests on you. I’m not the one saying it’s Constitutional. You are. Shifting the burden of proof is a logical fallacy and a tool used by trolls world wide to try to make what they are saying sound legitimate when it is purely propaganda. The burden of proof rests with he who makes the claim.

    Get to work. Show you work too. Sourced and cited.

    Just admit you’re a homophobic theocrat who wishes to impose your Christian definition of marriage upon others using the force of law.

    It’s obvious that is your agenda.

    Or continue to dance around asking for proof from me that you are not due as claimant.

  52. This is the Constitutional basis for Traditional marriage and its benefits
    Hawaii
    Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 9 of 120
    2894

    It is undisputed opposite-sex couples can naturally procreate and same-
    sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.
    ^^^^^
    Each individual has the same rights as every other individual, to marry or not marry 1 and 1 only of the opposite gender. A position reinforced by the anti-polygamy laws.

    There is no fundamental right for couples to marry as some state allow first cousin marriage while others do not.

    The case of this article is only about decriminalization of the actions of consenting adults, using L v. T as support.

  53. Too bad for you the Federal Constitution trumps State Constitutions, Monte.

    It’s that pesky Supremacy Clause (Article VI, Section 2) and the 14th Amendment.

    And the whole you not understanding how the law works thingy.

    Now seriously, you are simply tedious. Show where that definition has been declared constitutional under the U.S. Constitution by a Federal Court or SCOTUS. That’s where the rubber meets the road. Since that definition is essentially the same as DOMA and that has been held unconstitutional already by Federal Courts and is pending cert with SCOTUS?

    Good luck.

  54. “been declared constitutional under the U.S. Constitution by a Federal Court or SCOTUS.”

    Hawaii Federal Court Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12

    Feds argument on cert before SCOTUS

    DOMA on cert to SCOTUS
    “society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.” House Rep. 12, 13.

    And again only natural procreation is argued

    First Circuit DOMA No. 10-2204

    As the Supreme Court observed long ago,
    [t]he whole subject of the domestic relations
    of husband and wife, parent and child, belongs
    to the laws of the States and not to the laws
    of the United States.
    Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re
    Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia,
    388 U.S. 1, 7 (1967) (marriage).

    get SCOTUS to rule that traditional marriage is unconstitutional and so goes the benefits

  55. That’s some amazingly contorted logic there, Monte. And some fine cherry picking. Did you do that all on your own or did you have help? The speed of your reply tells me you are working from a sheet.

    The reason DOMA is going to be ruled unconstitutional (again) is based on civil rights as applied to the states via the 14th Amendment, not that traditional one man one woman marriage as a form is in itself unconstitutional.

    None of which has anything to do with a valid state interest in anti-polygamy laws. Apples and oranges. But you keep trying to distract from the subject at hand – whether polygamy is constitutionally protected or not – by trying to equate the issue to homosexual marriage. It’s a false equivalence when you started down this path and it is still a false equivalence.

  56. One and all follow the natural procreation stance as the sole reason for supporting marriage

    First Circuit DOMA No. 10-2204

    English= States can define marriage
    Supreme Court interpretations of the Tenth Amendment have
    varied over the years but those in force today have struck down
    statutes only where Congress sought to commandeer state governments
    or otherwise directly dictate the internal operations of state
    government.
    Printz v. United States, 521 U.S. 898, 935 (1997); New
    York v. United States, 505 U.S. 144, 188 (1992).
    Whatever its spin-off effects, section 3 governs only federal programs and
    funding, and does not share these two vices of commandeering or
    direct command.

    Hawaii Federal Court Case 1:11-cv-00734-ACK-KSC
    “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

    Marriage Tax Benifits
    Case: 12-15388
    06/11/2012
    Marriage serves interests inextricably linked to the
    procreative nature of opposite-sex relationships
    Civil recognition of marriage historically has not been based on a
    state interest in adult relationships in the abstract. Marriage instead is
    predicated on the positive, important and concrete societal interests in
    the procreative nature of opposite-sex relationships. Only opposite-sex
    couples can naturally procreate, and the responsible begetting and
    rearing of new generations is of fundamental importance to civil society.
    It is no exaggeration to say that “[m]arriage and procreation are
    fundamental to the very existence and survival of the race.” Skinner v.
    Oklahoma, 316 U.S. 535, 541

    Baker v. Nelson
    The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/”
    Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
    We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
    Affirmed.

    Hernandez v. Robles, New York Court of Appeals (2004)
    The New York Court of Appeals (the state’s highest court) rejected claims by same-sex couples that the state’s marriage laws were offensive to the state constitution’s Due Process and Equal Protection clauses.[33] New York courts treat the state’s Equal Protection Clause interchangeably with its federal counterpart. [34]
    Plurality Opinion (Smith, R.S., J.)
    We find no inconsistency that is significant in this case between our due process and equal protection decisions and the Supreme Court’s. No precedent answers for us the question we face today; we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v Nelson bars us from considering plaintiffs’ equal protection claims.

    Morrison v. Sandler, Indiana Court of Appeals (2005)
    The Indiana Court of Appeals upheld the dismissal of a case brought by several same-sex couples who challenged Indiana’s marriage statutes. On appeal, the couples claimed that the statutes violated several provisions of the Indiana Constitution, principally the Equal Privileges and Immunities Clause (Article 1 § 23). The majority opinion (Barnes, J.) concluded its description of Baker with:
    Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case.[32]

  57. “States can define marriage” but not for purposes that conflict with Federal law or the United States Constitution. Again, the Supremacy Clause and the 14th Amendment.

    Argumentum verbosium using state court decisions isn’t going to hide that you don’t understand the hierarchy of authority inherent in Federalism and how it relates to state’s rights.

  58. As the SCOTUS ruling to the ACA made clear, the States have no authority over the federal taxing policy.

    DOMA is Federal taxing policy established prior to any State enacting form of alternative marriages. Any harm done is at the State level and not the Feds

  59. Now, do you have anything else to add to your false equivalence concerning plural marriage versus “traditional marriage”?

    Or do you just want to keep trying to steer away from the subject of polygamy.

    Because, again, your ignorance of how the law actually operates in terms of precedent and controlling authority is tiresomely trollish.

  60. You assume, wrongly that their is a right to receive federal benefits. There is not.

    States under the 10th can define marriage any old way they see fit, Federalism does not give the States the authority to rewrite federal policy.
    State can enact polygamy if they choose, same State cannot dictate to the other States or the Feds that definition.

    14th is not the avenue to force marriage definitions upon your neighbour. Violates the 10th and the 1st

  61. “DOMA is Federal taxing policy established prior to any State enacting form of alternative marriages.” Mischaracterization. DOMA is a United States federal law that intended to define marriage as the legal union of one man and one woman for federal and inter-state recognition purposes in the United States but it is failing in a piecemeal fashion for being unconstitutional.

    “Any harm done is at the State level and not the Feds” except for the violation of Federal anti-discrimination laws and civil rights due all citizens under the U.S. Constitution.

    Judge Vanessa Bryant ruled that the Section 3 of DOMA which prohibits the federal government from recognizing same-sex marriages, violates equal protection guarantees in Pedersen et al v. Office of Personnel Management et al. Now where is that equal protection clause located again? The 14th Amendment.

    Fight against the erosion DOMA all you like.

    It will eventually fail in toto when subject to proper scrutiny under the U.S. Constitution.

  62. Malisha,

    Federal courts do what they decide to do and then give their reasons. Plus ca change…
    ============
    Sometimes they don’t even give their reasons. They spout total incompetence, then deny the petition for rehearing.

  63. By your account any one State that defines marriage should be recolonised by all the others, we know that is not so

    “In arguing that other states do not have to recognize same-sex marriages under the Constitution’s ’full faith and credit’ clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins, an uncle and a niece, and same gender siblings.”

    Polygamy is a far better utilization of resources than 1 man 1 woman marriage, plenty of observations in nature to show the alpha male in charge of the herd. But we do not live as animal do.

    Polygamy, plural marriage harms no one, they are consenting adults, even fit within the goals post of natural procreation, yet still is illegal.
    Not for the actions of the individuals but for the benefits afforded marriage. When a spouse of said marriage passes how would SSI distribute the surviving spouse benefits when more that 1 exist.

    1 man 1 woman laws solve all the issues with alternative marriage schemes

  64. You’re wrong to assume you know what you are talking about.

    The 10th Amendment does not give the States the ability to overrule the Federal Constitution. The Supremacy Clause is clear on that issue as is the subsequent precedent. Saying that the states cannot restrictively define marriage based on religious definitions – which is in effect what overturning DOMA is doing – is not in contravention to the 1st Amendment at all. You don’t think anyone but one man and one woman should get married? Then don’t marry someone of the same sex. No one is stopping you from practicing your religion in marrying only one person of the opposite sex and no one is forcing you into a homosexual marriage. Your 1st Amendment rights are protected. In fact, overruling DOMA bolsters the 1st Amendment’s Establishment Clause by not allowing states to impose the tenets and restrictions of Christianity on those who may not hold them. See, that Separation Doctrine works to protect everyone from having someone else’s religion imposed on them by the power of law, including those who would push Christian values on others.

    You’d understand that if you knew how the law actually operates instead of talking like a loon trying to impose theocracy by forcing everyone to accept your narrow Christian definition of marriage.

  65. “It will eventually fail in toto when subject to proper scrutiny under the U.S. Constitution.”

    now your getting to the meat of the matter

    SCOTUS will use the simple Rational test

  66. “Polygamy, plural marriage harms no one, they are consenting adults, even fit within the goals post of natural procreation, yet still is illegal.”

    That is your contention to prove before the bar. There is evidence to the contrary regarding harm from plural marriages both to the individuals and to society. That is what will be decided here: is there a legitimate interest in prohibiting polygamy based upon the evidence surround polygamy (not by falsely equating it to something it is not).

  67. The Supremacy Clause is clear on that issue as is the subsequent precedent. Saying that the states cannot restrictively define marriage based on religious definitions –

    that is an assumption on your part

    State-endorsed exemptions to same-sex marriage recognition raise serious equal protection concerns.

    The exemptions seek to immunize discriminatory conduct by individuals, officials and market-based entities on the grounds that the discrimination is motivated by sincerely held religious beliefs. Such a privileging of otherwise prohibited conduct on the basis of its religious origin constitutes the sort of government endorsement of religion that the Court has previously found to violate the Establishment Clause.

    Once the state recognizes same-sex marriage, it should not be able to dilute that recognition by differentiating among marriages or by allowing private individuals or entities to do so.

  68. “That is your contention to prove before the bar. There is evidence to the contrary regarding harm from plural marriages both to the individuals and to society. ”

    actually have no problem with the polygamy laws for they support
    1 man 1 woman

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

    Really quite simple in its complexity

    The harmful behaviour of an act to society is weighed against the Citizens right to choose. 1 man 1 woman has balanced behaviour against choice and does not violate the 14th

  69. Also note that Free Exercise is not an absolute right either. Even under the narrowed compelling interest standard from Employment Division v. Smith, 494 U.S. 872 (1990) and the general applicability requirement from Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the law as written does not target the polygamous practicing sect of Mormonism, but rather prohibits plural marriage under any circumstance.

  70. Matt J, you’re right. I guess I have gotten much more verbose federal judges than you have. One of them wrote 12 pages on why he did not have jurisdiction to hear a habeas corpus ON REMAND FROM THE FOURTH CIRCUIT COURT OF APPEALS, and concluded with a section he called “supplemental reasons” in which he opined that people who had hearings therefore had the opportunity to PROVE their innocence!

    And he’s a respected jurist! So are they all, all respected jurists.

  71. “The Supremacy Clause is clear on that issue as is the subsequent precedent. Saying that the states cannot restrictively define marriage based on religious definitions –

    that is an assumption on your part”

    Actually, no it’s not an assumption. That is in effect what holding DOMA unconstitutional does when extended through to the states via the 14th Amendment.

    “actually have no problem with the polygamy laws for they support
    1 man 1 woman”

    Apparently you don’t understand the prefix “poly”.

    “anti-polygamy laws were — and are — facially neutral. They apply equally to secular and religious.”

    Good. Then they don’t violate anyone’s 1st Amendment rights despite your previous contention that they do.

    “That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman”

    Circular logic. Congresses intent in enacting DOMA is irrelevant to its unconstitutionality – which is the determination of the judiciary branch to make, not the legislative branch.

    Your argument isn’t “[r]eally quite simple in its complexity”.

    It’s simply wrong as a matter of Constitutional construction and interpretation. You seek to create the wrongful impression that polygamy being constitutional is a foregone conclusion when it is anything but as a matter of law. Settling that matter is the core of the case at bar and as much as I like and admire Jonathan, a win for the polygamists is not a slam dunk and in fact it has quite a bit of precedent and sociology and psychology working to against it to provide a more than sufficient state interest in preventing polygamy.

  72. See we do agree the law targets not a group, it is applied equally across all.
    the law reaffirms 1 man 1 woman marriage, no more, no less
    when discrimination is applied equally across all, its become neutral.
    You may question the validity of that discrimination, in this case it holds 1 man 1 woman marriage as the reason. You have to break that bond before alternative marriages can be given federal status. Of course the federal position is 1 man 1 woman, break the bond and their is no reason for the feds to recognise any marriages at all

    “the law as written does not target the polygamous practising sect of Mormonism, but rather prohibits plural marriage under any circumstance.”

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

  73. Now you bring another issue
    yet sec 2 of DOMA is not before the courts, yet
    If DOMA tips the scale then so does the RMA
    The RMA tips the scale giving 1 State the power to dictate to the others what the definition of marriage is

    First Circuit DOMA No. 10-2204
    English= Say bye bye to RMA
    These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the
    justifications are assessed.

    This RMA section unconstitutional
    Section 1738C of title 28, United States Code, is repealed

    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

  74. “You have to break that bond before alternative marriages can be given federal status. ”

    No, you don’t. You just have to rule DOMA unconstitutional.

    “Of course the federal position is 1 man 1 woman, break the bond and their is no reason for the feds to recognise any marriages at all”

    Actually, no, it’s not. The DOJ isn’t defending DOMA so the Federal position is that the lower courts ruling that it is unconstitutional isn’t going to be challenged by the Federal government. That bodes ill for the rest of it being upheld.

    And the secret to comedy is repetition:

    ““the law as written does not target the polygamous practising sect of Mormonism, but rather prohibits plural marriage under any circumstance.”

    anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious.”

    Duh.

    “That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.”

    Again, the intent of Congress in enacting DOMA is irrelevant to its (un)constitutionality. They can intend to make Christianity the official religion of the United States but it would be prime facie unconstitutional.

    I liked you better at you old job: riding around on a pirate’s shoulder.

  75. And I’ll save myself the trouble: the rest of what you say is blather and legal gibberish, Monte.

    Carry on.

  76. “Again, the intent of Congress in enacting DOMA is irrelevant to its (un)constitutionality.”

    which is your opinion and not that of the defenders, which is Congress itself.
    No State mat rewrite Federal Taxing Policy, its that simple.
    If you played checkers you’d be happy with the King you were played into receiving. While you rejoice in that minor, the board is cleared by your opponents next move.

    Course DOMA will be upheld
    “It is not our job to protect the people from the consequences of their political choices.”
    Justice Roberts. Both Obamacare and DOMA are duly-enacted federal laws, after all.

    First Circuit DOMA No. 10-2204
    In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.
    The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.

    See H.R. Rep. No. 104-664, at
    Preserving this institution is not the same as “mere moral disapproval of an excluded group,”
    Lawrence, 539 U.S. at 585
    (O’Connor, J., concurring), and that is singularly so in this case
    given the range of bipartisan support for the statute.

  77. “You have to break that bond before alternative marriages can be given federal status. ”

    No, you don’t. You just have to rule DOMA unconstitutional.

    and that breaks the bond, no federal stated rational to support marriage ends the tax benefits, an increase to the treasury

  78. “which is your opinion and not that of the defenders”

    No, it’s my opinion based upon the Constitutionally defined roles of the Legislative versus the Judiciary. The defender’s intent is irrelevant. Intent is irrelevant to legislation regarding its constitutionality and that constitutionality – absent a Constitutional amendment – is not up to the Congress to decide, but rather up to the courts. Again, Judge Vanessa Bryant ruled that the Section 3 of DOMA which prohibits the federal government from recognizing same-sex marriages, violates equal protection guarantees in Pedersen et al v. Office of Personnel Management et al., which has not been heard by SCOTUS yet if at all. Until it is, DOMA is unconstitutional on Equal Protection grounds. That’s how precedent and finality work.

  79. “and that breaks the bond,”

    No it doesn’t, snapperhead. Again . . .

    Saying that the states cannot restrictively define marriage based on religious definitions – which is in effect what overturning DOMA is doing – is not in contravention to the 1st Amendment at all. You don’t think anyone but one man and one woman should get married? Then don’t marry someone of the same sex. No one is stopping you from practicing your religion in marrying only one person of the opposite sex and no one is forcing you into a homosexual marriage. Your 1st Amendment rights are protected. In fact, overruling DOMA bolsters the 1st Amendment’s Establishment Clause by not allowing states to impose the tenets and restrictions of Christianity on those who may not hold them. See, that Separation Doctrine works to protect everyone from having someone else’s religion imposed on them by the power of law, including those who would push Christian values on others.

    You’d understand that if you knew how the law actually operates instead of talking like a loon trying to impose theocracy by forcing everyone to accept your narrow Christian definition of marriage.

    DOMA is bad legislation and runs prime facie runs afoul of the 14th Amendment.

    Also, your fallacy of many questions tactic is not effective. Simply tedious.

    You go ahead and spin another tenuous argument based on legal principles you clearly don’t understand.

    I’m going to sit over here and snicker.

  80. “DOMA is unconstitutional on Equal Protection grounds. That’s how precedent and finality work.”

    all rulings concerning DOMA are stayed pending SCOTUS, both parties agreed to this with the understanding that should SCOTUS uphold DOMA the parties would not be stuck with a big tax bill to repay the Feds

    Guess you do not play checkers, the state is in the position now to approach SCOTUS, puts the other side on the defence.

    Is no question that SCOTUS will hear the case, it is after all a matter of national importance, a case the 1st punted through to SCOTUS

  81. “Saying that the states cannot restrictively define marriage based on religious definitions ”

    again you say the only reason is religious, a biased opinion on your part. You assume that support for 1 man 1 woman marriage is solely a religious concept. Quite simple the State supporting marriage that is based upon natural procreation, to steer those that naturally procreated into marriage, and in doing so they receive State support

  82. ‘all rulings concerning DOMA are stayed pending SCOTUS”

    ROFL

    That is the most ridiculous thing you’ve said yet. The ruling of the Federal Court is final unless and until cert is granted and SCOTUS rules. The Federal Court of Appeals is the final court of appeals next to SCOTUS and SCOTUS review is discretionary. Their rulings are binding and final unless cert is granted. DOMA doesn’t get an exception to this just because the religious right theocratic fruit loops favor it.

    And lawyers don’t play checkers. They play chess. Which explains why you keep losing this game.

    “Is no question that SCOTUS will hear the case”

    Really? You adding “psychic” next to that “avid checkers player” on your resume, Monte?

  83. Really? You adding “psychic” next to that “avid checkers player” on your resume, Monte?

    Yup, you will be owing me a box of doughnuts after SCOTUS agrees to hear the case

  84. “Natural procreation” is a religious concept, Monte. Procreation isn’t a valid state interest in marriage. A marriage license isn’t a contract with the state guaranteeing you’ll procreate. You can try to move that goalpost all you like, but it isn’t going to work. Marriage as a state interest is a contractual relationship between two people and the state’s interests all lay in the nexus of their interrelation and their relationships with third parties.

    Man, you are dense.

  85. Making a bet for someone they didn’t make? That’s par for your course, Monte. You want to restrict the rights of others to contract based on two concepts that aren’t valid state interests that force religious restrictions on their personal relationships.

    I don’t owe you anything Monte except incredulity at your ignorance of how the law operates in reality.

  86. Marriage as a state interest is a contractual relationship between two people and the state’s interests all lay in the nexus of their interrelation and their relationships with third parties.

    Have not yet read in any case presented by the State a defination of marriage as you describe

    Do see what the defenders of FOMA say
    DOMA on cert to SCOTUS
    “society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.” House Rep. 12, 13.

    have no idea where you get your info, surely not from what is presented before the courts

    The Nation historically has only recognized 1 man 1 woman marriage
    Loving v. Virginia 1 Man 1 Woman
    anti-polygamy laws prove the nations adherance to 1 Man 1 Woman

  87. The 1st works both ways, Can also be used as argument against supporting that which Religion disagrees with
    ie: tax payers dollars

    A full panel of the 5th U.S. Circuit Court of Appeals on Tuesday ruled that Texas may stop funding Planned Parenthood clinics while the abortion seller’s lawsuit is ongoing.

    “Texas has a constitutional right to say it doesn’t support abortions and that it doesn’t want to pay for them.”

    Have the same right to not support SSM
    DOMA upheld

  88. No Federal Constitution can hold you! No phone booth can hold you! You’re going to insist marriage is a one man one woman relationship for procreation purposes when procreation isn’t a valid state interest and gender discrimination is on its way out the door!

    And again, what the defenders of DOMA say about their intent is irrelevant to its (un)constitutionality. Historical recognition? America historically recognized and encouraged slavery too, but that mistake was corrected. So will the mistake of restraining the relationships of others based on forcing religious ideals on them via the force of law. Homosexuals deserve their civil rights. If you don’t approve of their “lifestyle”? Don’t participate. Anti-polygamy laws prove the nation has an interest in prevent plural marriage – and for the umpteenth time – plural marriage is not the equivalent of homosexual marriage. A false equivalence is faulty logic. As is pretty much everything you say, Monte.

  89. What the defenders say is all that matters to the court. In this case it is Congress that is doing the Defending, the same Congress that determines what the federal tax policy is.

    Hawaii
    The ruling also says that Hawaii’s marriage laws do not treat males and females differently as a class, so the laws do not discriminate on the basis of gender.

    1 man 1 woman does not discriminate upon gender, both genders are treated equally.

    ” If you don’t approve of their “lifestyle”? Don’t participate.”

    as illustrated in the Texas ruling, don’t like it, don’t have to provide funding for it.

    “Anti-polygamy laws prove the nation has an interest in prevent plural marriage – and for the umpteenth time”

    They prove the nations intent is 1 man 1 woman. Even addresses the sexual orientation of the bisexual.

  90. As another poster pointed out, often times the decision is made before the case is heard

    U.S. District Chief Judge Jones allowed the Coalition for the Protection of Marriage to intervene with defendants, and said he planned to rely on oral and written arguments from attorneys, not courtroom testimony from people who might be offered as experts on the history of discrimination against homosexuals.

    “Testimony would be not only useless but an absurd inquiry,” Jones said.
    “It makes sense to get this decided and off the circus train,” he said.

    Nevada, like Hawaii will uphold its Mini Doma

  91. “What the defenders say is all that matters to the court.”

    Actually, that’s not how courts works, sparky. The court listens to both sides. That’s how adversarial process works.

    The rest of what you say is simply recycled gibberish.

  92. “What the defenders say is all that matters to the court.”

    court cannot dictate federal taxing policy, they only rule as to the defenders of that policy claim. Defenders say thier constitutional rational to issues support for marriage is based upon 1 man 1 woman. if upheld the benefits continue, if not upheld then the benefits are in violation of the Constitution.

    As the Texas case shows, providing funding for issues in violation of religious beliefs are Unconstitutional

  93. Give it up, Monte. My cats have a better basic understanding of adversarial process, legal theory and Constitutional law than you have exhibited. You simply have no clue as to what you are talking about.

  94. Plural arrangements could be granted the status of Civil Unions by those states that desire to do so. They would then receive protections at the State level and not run afoul of Federal Constitutional issues

  95. I take it then you disagree with the Texas court ruling that holds the tax payers funding for abortion is Unconstitutional.
    Abortion SSM both equal to those that believe

  96. Monte…..”Problem with Romer v Evans. , Romer supports polygamy
    “remains to be explained how §501 of the Idaho Revised Statutes was not an “impermissible targeting” of polygamists, but (the much more mild) Amendment 2 is an “impermissible targeting” of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a “legitimate concern of government,” and the perceived social harm of homosexuality is not?”
    Romer V Evans said nothing aobut polygamy. What it said was that it was illegal to try and deny homosexuals equal protection under the law because of their sexual orientation. Polygamy isn’t a sexual orientation so it doesn’t qualify under the Romer decision.

  97. Monte….. If the states are the people that define marriage then why is it that the federal government trying to define it?
    Another thing. If procreation were being used to define marriage then why is it that they allow sterile heterosexual couples marry when they can’t have children? Why doesn’t the governement mandate fertility testing as part of the requirements to get married? Simple. It’s because that procreation has no part in deciding marriage. It’s just used as an excuse to be discriminitory against homosexuals wanting to get married. Thanks to the Romer v Evans decision that you mentioned earlier it’s now illegal to discriminate against people because of sexual orientation.

  98. Federal government has defined to whom tax dollars go to long before DOMA

    you argue to overbreath application
    Under rational review their is no issue with non procreation among opposite gender couples.

    Romer was for the wide swipe of the brush, you attempt to pull 1 hair from that brush and apply Romer

    you compare apples I point to the tree and ask, is it constitutional for that tree to give apples

  99. Gene H, rumor is that your cats have deprived mice of their constitutional rights under color of house rules. Are you willing to answer for that? Respondeat Superior!

  100. OK, I was on a big think-up about this issue, for some unknown reason, yesterday (didn’t have to do other things, I guess). Here’s a question:

    If it is legal for a person of any gender to marry a person of any other gender, and it is possible for a husband to have five wives, then is it not possible for a husband to have five wives, one of which has another four husbands? Then is it possible for only three of the husbands of the (say) third wife to marry one of the third wife’s original bigamous husband? If in fact the third husband of the first husband’s third wife wants to divorce his second wife but not his first or third husband, who gets the kids? And if one of them dies intestate, who gets the estate? And if there is a lawsuit or a criminal charge, which spouses have marital privilege with which others? Just askin…

  101. Malisha,

    The laws of nature and the laws of man are not only often at odds, but to my knowledge cats and mice have no Constitution ergo no rights under which to be usurped by house rules. ;)

  102. Gene H, I am waiting for the group marriage case, though.

    In the old days when I was an activist for “the mothers,” several other activist groups invited me to join various things they were doing, and at one point I was marching with mine together with the “gays in the military” and “gay marriage” folks, but this was early days of both movements so they hadn’t made big impressions yet. At one meeting (planning a thing downtown DC) I asked, “Why do you want to get into the two worst institutions this society has to offer; everybody else is trying to get OUT of them!”

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