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
Question is not “Can I” or “May I” but rather
What is “Marriage”
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!”
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. 😉
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…
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!
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
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.
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.
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
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
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.
“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
“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.
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
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.
http://www.youtube.com/watch?v=l3q-zwvqBq8
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.
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