Federal Court Strikes Down Criminalization of Polygamy In Utah

240px-sister_wives_tv_series_logoIt is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah.  The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause.   The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists.  The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.

The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns. It is a victory not for polygamy but privacy in America. I wish to thank our legal team including our local counsel, Adam Alba, my students like Geoff Turley, my assistant Gina D’Andrea, and the many others who have assisted us through the years. I must also thank Judge Waddoups who showed remarkable principle and integrity in rendering this decision. This law has been challenged dozens of times in state and federal court over the many decades. It took singular courage to be the first court not only in this country but any recorded decision to strike down the criminalization of polygamy. In doing so, Judge Waddoups stood against prejudice and considerable hostility toward plural families. In a single ruling, he reaffirmed the wisdom of our Framers in creating a court with life tenure and independence under our constitutional system.  While the Supreme Court is often credited with the recognition of basic rights, it is often forgotten how the true profile of courage is found among those lower court judges who stood against prejudice and anger to follow the rule of law. It will be an honor to defend this  decision in any appeal by the State and we are prepared to do so as far as the Supreme Court to protect this legal breakthrough.

My final thanks is to the Brown family which has endured years to threats and investigation to bring this day about. They have secured for plural families the promise of privacy recognized for same-sex couples in Lawrence v. Texas. In recognition of the importance of this civil liberties case (and contrary to the statements of state officials), the Brown have made little reference to the case on their TLC show so not to distract attention from the merits of the case. They have earned this historic victory and both my respect and gratitude.

With this decision, abuse of spouses and children will continue to be prosecuted regardless of whether they occur in monogamous or polygamous families. These protective services will only be strengthened now that many families can openly integrate into society and not fear prosecution merely because of their family structure.

The court struck down that part of the statute that criminalized co-habitation between consenting adults — allowing plural families to step out for the first time in their communities and live their lives openly among their neighbors.  What remains of the statute was narrowly construed by the Court to limit future prosecutions to traditional bigamy, i.e. individuals with multiple marriage licenses.

This historic ruling is a hard-won victory that will be defended with equal vigor in the coming months. If the State (as previously stated) intends to fight for this pernicious law on appeal, we will be prepared and honored to defend this ruling.  Accordingly, as we argued, the state can only prohibit and prosecute “bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.”

Kody Brown issued the following statement on the ruling:

The entire Brown family is humbled and grateful for this historical ruling from the court today. Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs. There are so many families who have waited for so long for this ruling and, on their behalf, we can only say: thank you, Judge Waddoups, for your courageous decision. We want to particularly thank our lead counsel Professor Jonathan Turley who represented us through the criminal investigation and then led the fight against this law. We also want to thank the team of lawyers and students from George Washington, including our local counsel Adam Alba. We are so honored and blessed to have been able to serve as the vehicle for this milestone ruling. Professor Turley has pledged to defend this decision on appeal and we are equally committed to fight to preserve this great victory.

Finally, many have asked what the next step will be. The Utah Attorney General’s office previously stated that they would defend this law on appeal. If that remains their intention, they will have a number of options. They can seek a reconsideration from Judge Waddoups. Such motions are rarely granted in an opinion that has been written with such care as this one. Alternatively, they can go directly to the United States Court of Appeals for the Tenth Circuit. They will have to file notice of appeal with the Court and the matter will be put on a briefing schedule. Given the limited trial record, such an appeal could proceed without significant delay if the Utah Attorney General remains committed to an appeal. Once filed, the case will shift from Salt Lake City to Denver Colorado.

For the moment however we are all savoring this great victory that has come after such a long and difficult fight — long before this lawsuit was filed. This struggle began with the approval of the Enabling Act in July 16, 1894 when Congress made the outlawing of polygamy a condition for statehood. Utah has achieved something equally important today: true equality of its citizens regardless of their personal faiths or practices. It is a moment in which all Utahans should take pride and celebrate not in the name of polygamy but of privacy. So congratulations to the Browns and to the people of Utah on a truly momentous day.

Jonathan Turley
Lead Counsel

Here is the opinion: Brown Summary Judgment Decision

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187 thoughts on “Federal Court Strikes Down Criminalization of Polygamy In Utah

  1. I’m somewhat in concurrence with the ruling. Traditional marriage should be defined as the consent of adults to do (legally) what they may.

    Hence, the hogwash that taboo lines will be crossed – can’t be crossed – as they do not involve “adult consent”.

  2. Congratulations on a well deserved victory. It’s indeed unusual to hear the phrase “free exercise thereof” in conjunction with The First Amendment.

    I agree with the wider implications of this case, on the broadening of the term “family”.

  3. Though, I must say, I’m ready, willing and able to be either Jamie Lee Curtis or Sandra Bullock’s 5th or 6th husband (concubine) choice.

    And will begin to work out immediately – to be fit for the tasks at hand!

  4. Government should simply have no role in defining or licensing marriages among consenting adults, never mind habitation arrangements.

    While this ruling is quite a positive shift, I am concerned that many still look to government as the ultimate Sanctifier of their relationships. Individuals should instead be seeking to end government authority to restrict legitimate, voluntary, consensual associations altogether.

  5. LaserDLiquidator (1, December 13, 2013 at 8:38 pm) wrote: “Though, I must say, I’m ready, willing and able to be either Jamie Lee Curtis or Sandra Bullock’s 5th or 6th husband (concubine) choice.”

    A male concubine? interesting concept!

  6. Congrats Professor Turley. Another one for the First Amendment, which has taken quite a battering lately.

    As for you, Laser, you win the Internets tonight.

  7. ‘grats.
    On this line in your report however,
    “…the court has shown that it is the rule of law and not the rule of the mob that governs in this country”

    I think you risk hyperbole. In this case, after all this time, yes, perhaps. But to make this general application to say we are actually governed by the rule of law in this country is contradicted by many of the other posts in this blog.
    And the proper counter point may not be the “rule of the mob”, but rule by something else.

  8. Congratulations on the win, Prof.

    I remain personally convinced polygamy is a bad choice for a variety of reasons, but if consent is valid, then that is the extent of my objections on principle.

  9. “…The court struck down that part of the statute that criminalized co-habitation between consenting adults — allowing plural families to step out for the first time in their communities and live their lives openly among their neighbors. What remains of the statute was narrowly construed by the Court to limit future prosecutions to traditional bigamy, i.e. individuals with multiple marriage licenses…”

    Prosecutions will continue against individuals with multiple marriage license? The polygamist men do not have multiple marriage licenses. Perhaps the 1st wife is his legal wife. All others are single women with all benefits provided to single women with children. Each polygamist male should be REQUIRED to get a secular marriage license with Each female he ‘spiritually’ marries. That would give women and children in these communities some degree of protection. As it is now, they have No Rights and No Protection.

  10. Puzzling: Then, who should be the justice of peace? Who should decide who can marrry whom? The government (federal, state, and/or local) will always be the one(s) to determine who will or should be allowed to marry, as well as many other rights, freedoms, etc.

    Prof JT,

    You know this ruling will be overturned. I guess it is ok to celebrate your Battle of First Manassas (Bull Run), but the war is far from over.

  11. Gene,

    Even with consent, from all parties, I believe it is a bad choice. However, my reason(s) don’t count due to my christian apologetic beliefs about marriage only between a man and a woman.

    Nevertheless, please feel free to enlighten us with your reasons.

  12. With the ruling for Gay Marriage by the Supreme Court in Windsor it seems only natural that a decision of this nature would occur. Further polyamorous extensions also seem logical.

    Simple “adult consent” sounds good but is this freedom or simply license for harmful behavior? Witness the Curtis/Bullock joke. How about the children that tend to result? Who exactly is the actual father/mother to the child? (DNA aside practical considerations to the front) Doesn’t matter ?

    Is this freedom for the women or license for practical slavery to men?

    I respectfully dissent. :)

  13. RWL,

    I used to be for it under the theory of contracting, but I’ve always thought it was a bad idea for reasons that multiple parties mean compounded complications if something goes wrong. However, Elaine, Blouise and Smom showed me some studies that revealed that polygamy has repercussions in the community beyond the direct parties as well as negative impacts on the children (beyond those in a situation gone awry). Like mespo, I think this is good law, but I don’t think it’s necessarily good social policy. However, so long as consent is valid, I’m willing to let people make their own mistakes for a couple of reasons but the main one is that polygamy (despite its negative effects) is generally culturally unacceptable to the point that any negative social effects should remain fairly minimal and localized for the foreseeable future.

  14. Congratulations to all involved in bringing this to a victory. The resolve against some very distateful, to say the least, actions by a state government and invididuals acting for political ends over civil rights does everyone credit.

  15. As one-third of a poly family, I would like to extend my thanks for the very hard work that went into this. There is a little sigh of relief tonight in our household.

    I can only speak from the limited experience of my family, but insofar as polygamy being bad social policy, I must respectfully disagree. After 18 years, we are apparently doing something right. My son (who is well aware of who his biological parents are, and who considers his dad’s legal spouse to be his step-mother), skipped a grade in middle school and is going to start a college career in theoretical physics at age 17. He’s well-adjusted emotionally, socially and academically. Most of his friends (and their parents) are aware of our family structure, and it has never been an issue. People tend to see the postive impact we have in our community, and ask us about our situation to the degree they are comfortable with the answer.

    Our family has had its share of interest from local law enforcement, but thankfully the DA decided that was not a path he wanted to wander down, as we have never tried to game the system. Two of us are married, three of us are in a committed relationship. We pay our taxes, help out in the community, and generally behave like everyone else in the neighborhood.

  16. Congratulations Professor Turley!

    **Gene H. 1, December 13, 2013 at 11:00 pm **

    Gene H,

    I agree with your points on this issue.

    I’ll add another of mine.

    My Dad’s family & extended families were extra large I’ll say. With that many people families have enough for tribes/clans.

    The last generation that I’m from, no one in it breed like the earlier generation of 7-20 kids a couple. Most us just had a couple kids each.

    Couple years back when Egypt 1st started revolting I heard a news caster say Egypt’s population was 40 million 20 years earlier & had since grown to 80 million.

    I assumed that in another 20 years the pop could be 160 million if that same rate continued.

    A major problem I see is that if the land was barely enough for 40 mil & having trouble at 80 mil at some point soon there will be more people then the land can support there.

    At what point & who says when the world is over populated?

  17. Oky,

    Science tells us. The carrying capacity of the Earth is a calculable number. Current estimates vary somewhat, but it’s safe to say that Earth is running now (considering environmental and population pressures) at about 1.5, i.e. it would take 1.5 Earths to maintain our current levels indefinitely. The largest variable is consumption rates (we have a pretty good idea about population projections and rates of environmental degradation within ranges). The bottom line is we have too many people right now using too many resources to continue as we are and we have been at this level since the 90’s. Nature, however, is a self-correcting system. It seeks equilibrium. If we don’t start doing something to stabilize (and reduce) our population levels and moderate or reduce consumption over all, our species will be in for a nasty surprise when nature corrects it for us with plagues, famine and the attendant wars that often accompany resource scarcity. Earth, in short, could shake human civilization off like a bad habit. This of course does not include such black swan events like meteor/comet impacts (a matter of when, not if), nuclear war, super volcanoes, the “methane bomb” potential of global warming or other as of yet unknown ecological or technological disasters exacerbating the problem.

    Some days, I regret not having children but that is a purely emotional reaction.

    Most days – the days when reason rules my roost – I’m very very glad that I do not for their sake.

    Have a nice day.

  18. I do believe that free and consenting adults should be afforded protection under the law to live in a polygamous relationship.

    I do not believe though that the protection of young girls who are preyed upon by the likes of Warren Jeffs and his crowd should in anyway be diminished. These Jeffs should continue to be prosecuted to the fullest.

    Stephan Gregory Patterson,…….

  19. Professor Turley, you are my hero. You have achieved what many of us could not over the last 15 years. Now, an entire culture of 50,000 people can feel free to sit at the front of the bus. This is at least historic. It will resonate forever and everywhere. Watching the reverberations will be delicious. Thank you !!!!!!!!

  20. Isn’t Utah the only state that defined polygamy as mere cohabitation anyway? And don’t they still have adultery and fornication laws on the books? This ruling gets them in line with most other states that require more than one registered spouse for it to be bigamy/polygamy but isn’t it still effectively illegal to have sex with someone other than a registered spouse in Utah?

  21. This is no shock. With the purpose & definition of marriage changing & becoming diluted all the time, soon people will be able to marry a tree or their favorite pet. I guess we should be happy that it’s between humans for the moment.

  22. I am gay and I honestly don’t care who marries who as long as they are conceding ADULTS. I say bravo to the Brown family. I hope you all live a happy life together. Merry Solstice to you.

  23. Kudos to Professor Turley for recognizing the logical judicial connection between gay marriage and polygamous marriage. Most people indoctrinated into the gay marriage movement, including Gene H, have been denying this for years. The next step in our cultural evolution after redefining marriage is to redefine family. A lot of laws will need to be rewritten.

  24. The effects on children and the outcomes from divorce, power in spousal interaction, etc should be no different than with any relationship. If the predominant force is human rights and is controlled by the society then if there is abuse it will be treated like abuse in a regular marriage. It has been proven that children grow up best in intelligent and loving environments, regardless of whether the parents are straight, gay, or a bunch.

    All joking aside, why don’t women have multiple men? During my sexual awakening over the course of twenty/thirty years, I often dated one woman only who played the field. I knew, she knew, we knew and were fine with it. If it endures then it must fit. If it doesn’t fit then you take it off. There is no depravity in a loving and free relationship.

  25. The opinion of Judge Waddoups is very well reasoned, and very comprehensive, touching upon all of the constitutional territory these facts traversed.

  26. The Catholic church gets exemptions from discrimination laws in order to follow the book of Timothy 2:11-12 which states women shall be quiet, subservient, and never hold authority over a man. Why is this first amendment right not granted to me also? I have two discrimination suits for not promoting women. Why are my first amendment rights not protected? The government can not hand constitutional rights out selectively. All employers must get every exemption churches do.

  27. Issac: increasing your chances of walking around with AIDS/HIV or any STDs comes with the territory of multiple sexual partners? You should’ve learned that in either high school (or junior high school)?

  28. David,

    Once again, you miss the legal and social subtleties. Legally, this decision is consistent with upholding both Due Process and privacy rights. That’s why I didn’t say “I was really hoping you’d lose this one, Prof.” Do I think polygamy is a good idea? Nope. But unlike you and your bigoted views on homosexual marriage, do you know what I intend to do about my personally thinking polygamy is a bad idea? I’m not going to enter in to a polygamous marriage or relationship. Yep. That is the whole sum total of my protesting what I think is a bad idea. However, unlike you, I’m not going to deprive others from doing so if that is their choice and there is valid consent throughout the involved parties.

    See, that’s because I understand that my rights end where the rights of others begin; a concept I’ve noticed you have a real problem with understanding. I don’t have to agree with their ethical or moral choices to respect their rights to have them because – just like gay marriage – in the end those choices do not affect my rights. They do not steal my money, break my leg or cause me to literally go insane. Since that is the case, why should I care if others make what I consider to be a bad choice? I shouldn’t. It’s not any of my business.

    Just like homosexuals choosing to have a legally formalized and recognized contractual relationship (which is what marriage is legally) is none of your business.

  29. Congrats, Prof! Among consenting adults, otherwise lawful living arrangements are no one else’s business. A key victory for actual freedom, rare as they have become these days.

  30. RWL says, “don’t count due to my christian apologetic beliefs about marriage only between a man and a woman.”

    Your beliefs only count when they apply to you, and only you. Forcing your beliefs on others is precisely why this case turned out the way it did.

  31. James K,

    Gene, et al understood what I meant by what I said. They (and I) don’t need for you to provide your interpretation of what I said. You have know clue as to why the ‘case turn out the way it did.’ But I enjoy your humor/sarcasm toward my religious beliefs.

    Anyway, Prof JT knows that this outcome of the case will not hold up on appeal, and if it goes to the US Supreme Court, it will be struck down (or sent back to the Utah State Courts as a State’s Rights Issue; they will decide the outcome. I am surprised it hasn’t been decided by the State of Utah, or maybe it has, and I haven’t been keeping track).

  32. “I meant to say you have ‘no clue’ not ‘know’.”

    In either case, please present the mind reading device you are using to tell which “clues” I do and do not possess. If you meant something else by the words you originally typed, please feel free to expand on that. If you were affirming this choice despite your own beliefs, we are in agreement, and my statement still holds.

  33. RWL 1, December 14, 2013 at 12:46 pm

    Anyway, Prof JT knows that this outcome of the case will not hold up on appeal, and if it goes to the US Supreme Court, it will be struck down (or sent back to the Utah State Courts as a State’s Rights Issue; they will decide the outcome. I am surprised it hasn’t been decided by the State of Utah, or maybe it has, and I haven’t been keeping track).
    =========================
    It takes a while to read the ~91 page opinion.

    The judge was careful to follow Tenth Circuit precedent on the issues … specifically their reading of Lawrence v. Texas …

    The judge was also careful to pay attention to the Utah Supreme Court’s pronouncements on the statute at issue.

    He carefully went through each relevant constitutional argument that plaintiffs (JT’s clients) raised, and was careful to point out that the defendants did not take issue with most of their argument.

    They may, then, have waived those issues on appeal, after having also admitted to the relevant material facts.

    This is a federal case, so the Supreme Court will not remand it to the state courts under any circumstances.

    Another issue is whether this is a final judgment, because the court did not address the section 1983 issues.

    Appellate courts want a final judgment so they do not have to take up their limited time on piecemeal presentations of cases.

  34. […] This law has been challenged dozens of times in state and federal court over the many decades. It took singular courage to be the first court not only in this country but any recorded decision to strike down the criminalization of polygamy. In doing so, Judge Waddoups stood against prejudice and considerable hostility toward plural families. – Jonthan Turley […]

  35. Why not polygamy?
    By John Witte Jr.
    11/9/12
    http://www.washingtonpost.com/blogs/guest-voices/post/why-not-polygamy/2012/11/09/642c883c-2aa6-11e2-bab2-eda299503684_blog.html

    Excerpt:
    Western writers have long argued, and modern studies now document, that polygamy is unjust to women and children – a violation of their fundamental rights and dignity, we now say. Young women are harmed because they are often coerced into early marriages with older men. Once pushed aside for a rival co-wife, women are reduced to rival slaves within the household. They are then exploited periodically for sex and procreation by emotionally detached husbands. They are forced to make do for themselves and their children with dwindling resources as still other women and children are added to the household against their wishes. If they protest their plight, if they resort to self-help, if they lose their youthful figure and vigor, they are often cast out of their homes — impoverished, undereducated, and often incapable of survival without serious help from others.

    Children are harmed because they are often set in perennial rivalry with other children and mothers for the affection and attention of the family patriarch. They are deprived of healthy models of authority and liberty, equality and charity, marital love and fidelity, which are essential to their development as future spouses, citizens, and community leaders. And they are harmed by too few resources to support their nurture, education, care, and preparation for a full and healthy life as an adult.

    Men, too, are harmed by polygamy. Polygamy promotes marriage by the richest not necessarily the fittest men in body, mind, or virtue. In isolated communities, polygamy often leads to ostracism of rival younger men. Polygamy inflames a man’s lust, for once he adds a second wife, he will inevitably desire more, even the wife of another. And polygamy deprives men of that essential organic bond of exclusive marital companionship, which ancients and moderns alike say is critical to most men’s physical, psychological, moral, and even spiritual health.

    The Western legal tradition has thus long called polygamy a “malum in se” offense (“bad it inself”). That category of offenses now also includes slavery, indentured servitude, obscenity, bestiality, incest, sex with children, self-mutilation, organ-selling, and more. These are activities that are just wrong — or too often foster wrongdoing. That someone wants to engage in these activities voluntarily for reasons of religion, bravery, custom, liberty, or autonomy makes no difference. That other cultures past and present allow such activities also makes no difference.

    While some religious communities and their members might well thrive with the freedom to practice polygamy, it is inevitable that closed, repressive, and isolated regimes will also emerge. And this, in turn, will lead to under-aged girls being duped into sex and marriages with older men, and to women and children trapped in sectarian communities with no access to protection from the state and with no real legal recourse against a church, temple, or mosque that is just following its own rules.

    We prize liberty and equality in America too highly to court such a risk.

    (John Witte Jr. , is director of the Center for the Study of Law and Religion at Emory University , and author of a forthcoming title, “Why Two in One Flesh: The Western Case for Monogamy over Polygamy.”)

  36. Lots of language supportive of the states same gender marriage ban
    Case 2:11-cv-00652-CW-BCW Document 78 Filed 12/13/13

    If the asserted right does not qualify as “fundamental” under . . . analysis, “rational basis review” applies, under which “the state may regulate an interest pursuant to a validly enacted state law or regulation rationally related to a legitimate state interest.

    Clearly under “rational basis review”
    Utah Marriage law does not treat males and females differently as a class;
    consequently, the laws do not discriminate on the basis of gender.

  37. Maybe I missed it, but does someone know how *far* this decision reaches? I’m not a lawyer and can’t quite figure out if this just makes poly legal in Utah because a Utah law was struck down, or if poly is now at least non-criminal in all the US because a Utah law was struck down in a Federal Court.

    Would love to figure that out.

  38. Mungagungadin – I’m not a lawyer, but my understanding is that the decision does NOT legalize polygamy. It simply strikes down as unconstitutional a clause in the statute that prohibits cohabitation. The Statute against bigamy is still intact minus the cohabitation clause.

  39. Dredd: “This is a federal case, so the Supreme Court will not remand it to the state courts under any circumstances.”

    Really? Please read the following:

    “When the United States Supreme Court grants certiorari and reverses a decision of a state supreme court or a Federal appeals court, it may remand the case. Likewise, an appeals court may remand a case to a trial court. A remand may be a full remand, essentially ordering an entirely new trial; when an appellate court grants a full remand, the lower court’s decision is “reversed and remanded.”

    Alternatively, it may be “with instructions” specifying, for example, that the lower court must use a different legal standard when considering facts already adduced at trial. It may also be a partial remand as when an appellate court affirms a conviction while directing the lower court to revisit the sentencing phase. Finally, it may remand a case upon concluding that the lower court not only made a mistake but also did not adjudicate issues that must be considered.

    A federal court may also remand when a civil case is filed in a state court and the defendant removes the case to the local federal district court. If the federal court decides that the case was not one in which removal was permissible, it may “remand” the case to state court. Here, the federal court is not an appellate court as in the case above, and the case was remanded because the removal to the federal court was improperly taken, not that the state court did anything erroneous.

    In the federal tribunals in the United States, it is also possible for an Article III court to remand a case to an Article I court (if the case was originally decided by the Article I court and then appealed to the Article III court),[2] or for a higher-level administrative tribunal within an executive agency to remand a case to a lower-level tribunal within the same agency.[3]”

  40. Mark Twain had some keen observations when Roughing It out in Utah:

    Our stay in Salt Lake City amounted to only two days, and therefore we had no time to make the customary inquisition into the workings of polygamy and get up the usual statistics and deductions preparatory to calling the attention of the nation at large once more to the matter.

    I had the will to do it. With the gushing self-sufficiency of youth I was feverish to plunge in headlong and achieve a great reform here” ”Until I saw the Mormon women. Then I was touched. My heart was wiser than my head. It warmed toward these poor, ungainly and pathetically “homely” creatures, and as I turned to hide the generous moisture in my eyes, I said, “No” The man that marries one of them has done an act of Christian charity which entitles him to the kindly applause of mankind, not their harsh censure” ”And the man that marries sixty of them has done a deed of open-handed generosity so sublime that the nations should stand uncovered in his presence and worship in silence.”

  41. The Persistence of Polygamy
    By Timothy Egan
    Published: February 28, 1999
    http://www.nytimes.com/1999/02/28/magazine/the-persistence-of-polygamy.html?pagewanted=all&src=pm

    Excerpt:
    Driving south on utah’s highway 59, you slip out of the subdivisions sprouting in the desert, ascend to a lonely stretch of ink-colored juniper trees, then suddenly find yourself at the edge of the last century. There on the Arizona border, tucked behind towering flanks of red rock, is a town of about 5,000 people. Most are Mormon fundamentalists, and most are outlaws: it is the largest polygamous community in the United States.

    Though polygamy is a felony, nobody has to hide from the law in this town, called Hildale on the Utah side of the state line, Colorado City on the other. More than a century after it was outlawed, polygamy is flourishing in Utah and small pockets of the American West, nurtured by religious directives and the hands-off stance of legal authorities.

    Laura Chapman, 36, is the 25th child from a family with four mothers and 31 children, and she knows most of the people in Hildale and Colorado City, even the few she is not related to by blood. Chapman left the town years ago — she calls it ”the land that time forgot.” Today she is one of a new group of women who have fled plural families and want to draw attention to the reality of modern polygamy.

    Forget the sepia-toned notion of kindly Mormon patriarchs frolicking with a bushel of happy wives, these women say. Forget about the polygamy of Abraham or the Mormon pioneer Brigham Young. Late-20th-century polygamy, practiced by people who seem unconcerned about the law or public opinion, is a Dark Ages hybrid, say women who have left the big families. They raise allegations of sexual abuse, pedophilia and incest. ”This is organized crime, operating under the cover of religion,” Chapman maintains.

    If the charges of women like Chapman have been shrugged off before, that may be about to change. Last year a teen-age girl emerged with a story of incest, child abuse and forced marriage at the hands of one of Utah’s biggest polygamous clans, the Kingstons — who are based right in Salt Lake City, within a few miles of the domed capital building. Whatever the outcome, Chapman and other ex-wives of polygamy hope the resulting trials, scheduled to begin in April, will force a reckoning with Utah’s oldest ghost.

    There are two worlds in the beehive state. One is the Utah of first impressions, from the powder snow in the mountains to the brisk, overtly friendly business climate. The other Utah is harder to know. Mark Twain called it ”a land of enchantment and awful mystery.” Even now one side of the state’s personality remains hidden.

  42. Outstanding work, Prof. Turley. This is truly a groundbreaking decision. I suspect the appellate process will be equally interesting. The amici are likely already lining up.

  43. If polygamy is legalized in the U.S., I’m definitely joining the Red State state secession movement, because I don’t want to live in the type of Third World societies that polygamy leads to–and more important, I don’t want my young daughter to live in one either. I will die before I see my daughter suffer in the kind of Third World, violent, backward toilets exemplified by the Arab world, Pakistan, and Africa.

    I won’t stand back and see my culture, my rights as a wife, mother and woman, and my country destroyed just because some lavishly paid, tenured, taxpayer-funded Marxist university professor wants to play social engineer/tinpot god with my family and my country’s future.

    Professor Turley, we;’ve had enough of your kinds’ arrogant, elitist, endless social engineering and using our courts as a battering ram against Western Civilization over the past 50+ years. This is supposed to be a democracy–if you want polygamy, then have the guts to put it to a vote where it will surely be voted down. Since you know it would be voted down, you will of course,have to use the same old coward’s way of manipulating the court system like you Marxist destroyers always do. Safe from your lavishly paid, taxpayer-funded, ivory tower sinecure from which you can’t get fired.

    We want shot of your kind. We want our own country. We are sick of tyrannical rule by lawyers and Marxist university professors. Do the common, taxpaying, family-raising people of this country count, or not? Or are the only people who “count” in this country Marxist university professors, NYT and NPR editors, airhead celebrities, and greedy lawyers?

  44. MK,

    Calm down. Take a deep breath. Count to 10. Read what David said, and Please learn about how the court system and state amendments work. This case is far from over.

    Noone is going to harm your family, but wait: uh oh…..

    A full moon is coming on Tuesday, the 17th: as the saying goes: ‘you can feel the affects, of the Full and New Moons, 3 days before and 3 days after.

    I see that you are having a full moon ‘episodes': someone call the men in white coats (they do still wear white coats?)!

  45. Congratulations to my friend Adam Alba for some able legal work on a thorny issue. I don’t know how this will sort out on appeal. However, some of the comments on this site seem to stem from some confusion. The question whether the Constitution protects how the Browns live is a very different one from the question whether the criminal conspiracies of the Kingstons and Warren Jeffs groups should be immune from prosecution. They should not be. Warren Jeffs is in prison (and should remain there) for deplorable acts that he committed under color of “religion,” but for him and his ilk it’s just an act; a means to maintain control of other people. Striking down parts of the anti-cohabitation statute is not at all the same thing as endorsing the child abuse and other illegal activities of the Jeffs and Kingstons. Also, contrary to MK’s assumptions, to my knowledge neither the Browns nor professor Turley, and DEFINITELY not Adam Alba, are “Marxists.” Any Marxist regime would have subjected all these people to firing squads long ago, or starved them to death the way Stalin did with the Kulaks in Ukraine.

  46. How are other social issues such as health insurance, social security and other retirement benefits to be addressed in extended (polygamist) families? Seems like, if only one wife is a legal one, the others (and worse still, the children involved) will be left to fend for themselves when Daddy kicks it or applies to collect SS benefits. I don’t see how many complex issues regarding polygamy will benefit society as a whole. If the man in a polygamist relationship is not wealthy enough to provide for all his wives and children should the rest of society pick up the tab? As a multiple pet owner it is important to make every one of them fell wanted WHICH REQUIRES TIME. How can one man provide the attention 31 children WILL need. Oh, that’s right! The women can take care of that so that he’ll be free to make more babies with possibly even more wives.
    Frankly, the human race is in no danger of extinction from not making enough children.

  47. are you kidding me?? this is wrong!!! sister wives is just a way for him to cheat and have an open affair, the kids need to be taken from the home and put into real homes with moral and God based values!! THIS IS JUST SICK AND SHAME ON YOU JUDGE!!!!!!!!

  48. While I have long admired Mr Turley and his intellect, if he’s having trouble hiring an editor and/or a proof reader I hereby volunteer. The first sentence of this post is shameful, at best, and embarrassing for all, especially we readers who value language and its uses to communicate. And while we’re at it, get a picture that’s not 20 years old, this is not a hook up site where you’re trying to reel in potential “dates”. Maybe a decent website overhaul is in order. I know a company

  49. I understand the basis for the ruling and your devotion, legally, to winning the case. However, I believe it to be another case where an abstraction trumps the actual well-being of women, children, and other men, similar to the belief in the evil of censorship of certain forms of truly awful pornography. I have more than most persons I suspect read a number of books on the subject, other than scholars of the subject themselves, and my reading doesn’t lead me to believe polygamy is a public good.

  50. I meant to say that I suspect I have read more widely than most on polygamy with the exception of scholars of the subject themselves.

  51. Sounds like the Canadian ruling must have been all “bunk”
    “Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.”

  52. How many spouses will each Third World immigrant be legally able to import into our country under family reunification laws now? 10? 20? 1000? And who will support these millions of imported Third World spouses? U.S. taxpayers?

    We would be shortly living in either a Third World Marxist dictatorship or an Islamic state, all without firing a shot.

    John Esposito of Georgetown U. was given $30 million by a Saudi oil sheikh to make an academic case for Islamic law in the U.S. Perhaps the same sheikh has been waving a $30 million check under Turley’s nose too? Or maybe the Muslim Brotherhood?

    Those who say this “victory” for “civil rights” will not affect anybody but a few thousand Mormon polygamists are lying through their teeth.

    Just as they lied when they said that gay marriage would not lead to the legalization of polygamy.

  53. Many of the comments on this thread reflect that the writers have not actually read the decision. The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional. What it struck down was the criminalization of cohabitation between married and unmarried adults. In other words, the decision does not provide precedent for the recognition of polygamous marriage, the immigration of harems, incestuous relationships or the abuse of women and children. It falls completely within the constitutional rationale of Lawrence v. Texas. My only criticism is that the Court did not really need 90 pages to get where it wanted to go.

  54. Mike A.,

    Not to mention I fail to see how a general polygamy challenge would be able to survive Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). It’s a narrow ruling here as you note.

  55. It is now clear that the evidence and findings of fact in the recent Canadian BC Justice Bauman decision was nothing more than vile animus, bigotry and prejudice toward those who practice polygamy to wit:

    Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

    Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

    Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.

    The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.

    Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

    Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

    Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.

    The harms against women include: exploitation; commodification; social isolation; the inevitable favouritism of some women and deprecation of others within the household; discrimination; and, impoverishment.

    The harms against children include: the negative impacts on their development caused by discord, violence and exploitation in the marital home; competition between mothers and siblings for the limited attention of the father; diminishment of the democratic citizenship capabilities of children as a result of being raised by mothers deprived of their basic rights; impoverishment; and, violation of their fundamental dignity.

    The harms against men include: the unequal distribution of spouses and related ostracism of younger men forced to compete for a scarcer supply of women; the creation of a false appetite for patriarchy; inflammation of male lust; and deprivation of the essential bond of mutuality that is unique to the marital institution.

    Finally, the harms to society that flow from polygamy include: threats to the social order and a greater need for social supports as women lacking education and opportunity to enhance themselves, as well as their children, find themselves impoverished upon divorce or the death of their husbands; harms to good citizenship; threats to political stability; and the undermining of human dignity and equality.

    The evidence demonstrates that polygamy is associated with very substantial harms. The prevention of these harms is salutary. Some of the beneficial effects of the ongoing prohibition of polygamy include: a) Increased per-child parental investment, with the expected increase in the mental and physical wellbeing of children overall;
    b) Reduced social strife, conflict and crime expected from more uneven distribution of the opportunity to marry;
    c) Reduced average age gaps between husbands and wives, increasing equality in marriages;
    d) Reduction in sexual predation on young girls;
    e) Reducing incentives for male control over women and their reproductive capacity.

  56. Many of the comments on this thread reflect that the writers have not actually read the decision. The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional.

    We did read the article and we do know that. We also know that this is simply the first step, and that taxpayer-funded, radical Marxist ideologues like Professor Turley will not stop until they get full legalization of polygamy–and legalization of incestuous and pedophile relationships after that. There will be more court cases until they get what they want, just as they did with gay marriage.

    Your lot have already lied when you assured us that gay marriage wouldn’t lead to legalization of polygamy. Do you think you have any credibility whatsoever with us NOW?

  57. Not to mention I fail to see how a general polygamy challenge would be able to survive Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). It’s a narrow ruling here as you note.

    Supreme Court rulings can’t be overturned or chipped away at? News to me.

    Stop the lying and propagandizing. You’re not fooling anyone.

  58. MK,

    I didn’t realize citing a spot on relevant precedent was propaganda. Did you learn that a Fred’s Mobile Law School in a van down by the river?

  59. RWL 1, December 14, 2013 at 7:56 pm

    Dredd: “This is a federal case, so the Supreme Court will not remand it to the state courts under any circumstances.”

    Really? Please read the following:

    …A federal court may also remand when a civil case is filed in a state court and the defendant removes the case to the local federal district court.

    =============================
    Like I said, this is a federal case.

    It was filed in the Federal District Court.

    It will not ever, under any circumstances, be remanded to a state court.

  60. RWL 1, December 14, 2013 at 7:59 pm

    Dredd: Forgot to add the website

    … Remand_(court_procedure) …

    Here is another incident in which the Supreme Courts may remand a case to the State Courts:

    ehow
    ==================================
    Like I said, this is a federal case.

    It was filed in the Federal District Court.

    It will not ever, under any circumstances, be remanded to a state court.

    And I will add, if you ever litigate in a trial court, appellate court, or the Supreme Court, do not ever quote ehow as authority.

    It would be like Slim Pickens (@ Dr. Strangelove) riding the nuclear bomb down yelling ehowwwwweee just before the mushroom of reality sent him back into the atomosphere.

  61. I didn’t realize citing a spot on relevant precedent was propaganda.

    We’ve already seen this show during the gay marriage debate and a hundred other debates with “progressives.” We know that deflection and incrementalism have always been winners for you guys.

    I’m not swayed or impressed.

  62. How polygamy affects your wallet
    May 11, 2006
    http://www.cnn.com/CNN/Programs/anderson.cooper.360/blog/2006/05/how-polygamy-affects-your-wallet.html

    Excerpt:
    You may or may not agree with polygamist Warren Jeffs’ lifestyle, and you may or may not think he is indeed the dangerous criminal the FBI says he is, but would you believe Jeffs and his followers are costing you money?

    “Their religious belief is that they’ll bleed the beast, meaning the government,” said Mark Shurtleff, Utah’s attorney general. “They hate the government, so they’ll bleed it for everything they can through welfare, tax evasion and fraud.”

    It makes some sense. Polygamists have multiple wives and dozens of children, but the state only recognizes one marriage. That leaves the rest of the wives to claim themselves as single moms with armies of children to support. Doing that means they can apply for welfare, which they do. And it’s all legal.

    “More than 65 percent of the people are on welfare … compared with 6 percent of the people of the general population,” Shurtleff said.

  63. Who exactly is “we”, MK? And no, the voices in your head don’t count. I was also unaware that I was the spokesman for modern progressivism let alone parenthetical “progressives”.

    I might add that directly citing relevant case law – not just on legal theory and black letter law but in fact pattern directly relevant to polygamy – does not qualify as either deflection or “incrementalism “. It is the essence of direct. I also fail to see how a case from 1878 could be considered incremental. Reynoldsis well established precedent that the government can regulate religious practice but not belief and it be appropriate under the 1st Amendment.

    Your trolling is weak, young Jedi.

    That’s what turning to the Dark Side will get ya.

  64. It might be useful to make a very clear distinction near the front of the article (ie: the part people bother to read) between “not criminally prosecuting people for cohabiting” in a plural marriage, and legalizing marriage for more than two people. (One can infer this distinction if they read the whole article carefully, I’m just suggesting being more clear up front). A large number of commentors have these ideas confused and seem to think this court decision clears the way for multiple people to be legally married.

  65. Gene H: I don’t believe for one minute that your Reynolds decision is a bulwark against formally legalizing polygamy. People like Turley will get their own way, by hook or by crook, and the public be damned. “Democracy” be damned.

    I will revisit this blog in four or five years–which is probably about when the formal SCOTUS decision will be handed down legalizing polygamy. While Turley and his ilk sit back and smile like the cat who swallowed cream. By that time I will be ready to leave my blue state for a red state and start agitating for secession.

  66. A large number of commentors have these ideas confused and seem to think this court decision clears the way for multiple people to be legally married.

    Bu isn’t that Turley’s final goal? Isn’t this Utah court case just an interim step in the process? How stupid do you think we are? We have seen this show again and again and again.

  67. MK wrote: “We know that deflection and incrementalism have always been winners for you guys. I’m not swayed or impressed.”

    Yup, I’m not impressed with the deflection either. You make some intelligent points, MK.

  68. Thank you, david m.

    PS I earlier left a message for other posters on this thread to ask if they knew of any organizations I could raise money for and join that are dedicated to fighting Professor Turley’s attempts to shove polygamy down American throats.

    The message was removed.

    it looks like taxpayer-funded, far-left-wing Professor Turley is not as much of an advocate of “free speech” as his blog would leave one to believe.

    About George Washingon University: “The George Washington University was created in 1821 through an Act of Congress, fulfilling George Washington’s vision of an institution in the nation’s capital dedicated to educating and preparing future leaders”

    So we federal taxpayers are being forced to fund a lavishly paid professor of law who is dedicated to destroying an essential underpinning of our Western culture? How is that fair or just?

  69. Actually MK, you are not being censored. WordPress has a fickle and temperamental spam filter. I’ll see if it got you.

  70. He removed two posts I made that referenced joining an organization and fighting against his attempts to shove polygamy down our throats.

    Looks like Turley isn’t as big of an advocate of “free speech” as he claims to be on this blog.

  71. I want to marry my dog and my horse. Can you help me.

    The horse betrothal would be a same sex marriage, if that matters.

  72. MK wrote: “it looks like taxpayer-funded, far-left-wing Professor Turley is not as much of an advocate of “free speech” as his blog would leave one to believe.”

    I would disagree with you on this point. WordPress does overly protect the blog all on its own. Long posts and posts with more than two links in them tend to get snagged. Some posts get snagged for no discernible reason. This happens to everybody, even guest bloggers. The general way to deal with this is to make a short public post that asks a guest blogger to see if your post could be released from WordPress. Sometimes they can be released, and sometimes they are just gone for unknown reasons.

    The blog here does allow a wide latitude of free speech. Perhaps too much. There is not enough moderation for uncivil comments by the guest bloggers, so the threads tend to be heavy upon emotion and popular liberal rhetoric rather than logic. As a result, the female mind and effeminate minds of men tend to rule. Saying such is sure to bring heckles because they like to pretend that no educated person believes in gender diversity anymore.

    In regards to Professor Turley, I find him to be sincerely interested in Constitutional rights and individual liberties. One problem is that he has bitten into the apple of the gay rights movement and the kind of egalitarian views that it pushes. This has moved him into a position of being blind to the dangers posed to society by the homosexual movement and the polygamous movement. I do not know where he stands on the issue of liberty for man/boy love or bestiality.

  73. Hugh McBryde
    1, December 15, 2013 at 8:43 pm

    To back up my refutation of Elaine, I offer the following:

    “The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”

    From an article by James Thalman in the Deseret News:

    http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html

    *****

    Hugh,

    From the Deseret News article that you provided a link to:

    The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance. There are just more than 200 receiving federal food stamps, and there are 63 children enrolled in the joint state and federal Children’s Health Insurance Program. The newspaper also reports that 283 residents are covered by Medicaid, the government medical insurance plan for the poor.

    The splinter group, which actively seeks the least possible involvement with government — local zoning ordinances the most notable exception — has had a history in other states of using whatever financial supplements provided by the government.

    Six years ago, the Utah Attorney General’s Office reported that between 65 and 80 percent of the residents of polygamous families in Colorado City, Ariz., and Hildale, Utah, were on food stamps.

  74. Gene H., thank you for removing my comments from the spam filter. Comments about Professor Turley’s censorship policies are hereby retracted. I’m new to wordpress and didn’t realize that some posts often get “lost.”

    Elaine and David: do you have any ideas of how we can fight this? I’ve never been politically active before but I feel very strongly about this issue and would like to get involved. I just don’t know how.

  75. Dredd,

    The US Supreme Court, Federal Appeals or District Court can remand a case to a state court, even if the case was originally filed in a federal court.

    Please provide me a law, rule, or regulation stating other wise. Please provide me a case and/or law, stating that the US Supreme Court cannot remand a case to a state court, even if the case was originally filed in a federal (District) Court.

  76. Mike A: “The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional. What it struck down was the criminalization of cohabitation between married and unmarried adults. In other words, the decision does not provide precedent for the recognition of polygamous marriage, the immigration of harems, incestuous relationships or the abuse of women and children.”

    I read the document, and you are right. It is too verbose. However, someone should’ve interpreted this decision in laymen’s terms. Hence, I will try (please correct me if I am wrong):

    I can have all 5 of my childrens’ mothers and our children living under my roof, as long as I am not violating the local and state housing codes, and not physically and mentally harming my children’s mother and our children? However, I can only legally marry one of them?

    IMHO, they (plural families) are circumventing Utah’s state law by cohabitating? I thought that it is illegal to circumvent a law? Or is it difficult to prove in court?

    Elaine does have a point in her articles about public assistance. The Judge refuse to acknowledge the ability to financially support the ‘plural family’ with or without public assistance. In other words, I don’t have to work and neither does my children’s mothers: the state will financially provide for them (free health insurance anyone?).

    Side note: Thanks to the O’Bama Administration, the work requirement is removed, as a requirement to continue to recieve public assistance, from Clinton’s Welfare Reform Act of 1997.

  77. RWL: “Side note: Thanks to the O’Bama Administration, the work requirement is removed, as a requirement to continue to recieve public assistance, from Clinton’s Welfare Reform Act of 1997.”

    Not true. Not even close. I wish you people would stop with the constant lies. There is plenty to criticize, without making stuff up.

  78. Juliet: “Not True. Not even close…..”

    Really? Please read the following:

    http://www.factcheck.org/2012/08/does-obamas-plan-gut-welfare-reform/

    “Under the new policy, states can now seek a federal waiver from work-participation rules that, among other things, require welfare recipients to engage in one of 12 specific “work activities,” such as job training. But, in exchange, states must develop a plan that would provide a “more efficient or effective means to promote employment,” which may or may not include some or all of the same work activities. States also must submit an “evaluation plan” that includes “performance measures” that must be met — or the waiver could be revoked.

    Ron Haskins, a former Republican House committee aide who was instrumental in the 1996 overhaul of the welfare program, told us the Obama administration should not have unilaterally changed the work-requirement rules. But Haskins said the Romney claim that Obama’s plan will “gut welfare reform” is “very misleading.”

    “I do not think it ends welfare reform or strongly undermines welfare reform,” said Haskins, co-director of the Brookings Institution’s Center on Children and Families. “Each state has to say what they will do and how that reform … will either increase employment or lead to better employment” of recipients.

    The Obama policy responds to state officials who say they can improve job placement and retention if freed from the time-consuming process of documenting and verifying that recipients are engaged in those work activities.

    “In times of reduced funding, waivers may be the best method to allow states to find effective and efficient approaches to assist the unemployed to find and keep work,” the Utah Department of Workforce Services wrote to federal welfare officials last year.”

    Question(s): If the federal government is unable to create jobs, force the private sector to create decent paying jobs by going after their overseas tax havens, or provide enough incentives to encourage indviduals to go back to work, or incentives to encourage 55 year olds to retire early, do you actually think the states can do a better job?

    Do you want to make a guess pertaining to which state(s) applied for the waiver? You guessed it: Utah and Nevada.

  79. RWL: You clearly have reading comprehension problems. Are you trying to make my argument for me? Two Republican governors asked for waivers to substitute other substantive activities for the work requirement. That’s not even in the same universe with the Obama administration gutting the welfare work requirement.

  80. Hugh,

    I think you’re the one who’s “mything” something!

    *************************
    Hugh McBryde
    1, December 15, 2013 at 8:43 pm

    To back up my refutation of Elaine, I offer the following:

    “The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”

    From an article by James Thalman in the Deseret News:

    http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html

    *************************

    Elaine M.
    1, December 15, 2013 at 10:35 pm

    Hugh McBryde
    1, December 15, 2013 at 8:43 pm

    To back up my refutation of Elaine, I offer the following:

    “The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”

    From an article by James Thalman in the Deseret News:

    http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html

    *****

    Hugh,

    From the Deseret News article that you provided a link to:

    The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance. There are just more than 200 receiving federal food stamps, and there are 63 children enrolled in the joint state and federal Children’s Health Insurance Program. The newspaper also reports that 283 residents are covered by Medicaid, the government medical insurance plan for the poor.

    The splinter group, which actively seeks the least possible involvement with government — local zoning ordinances the most notable exception — has had a history in other states of using whatever financial supplements provided by the government.

    Six years ago, the Utah Attorney General’s Office reported that between 65 and 80 percent of the residents of polygamous families in Colorado City, Ariz., and Hildale, Utah, were on food stamps.

    *************************

    Hugh McBryde 1, December 16, 2013 at 12:03 am

    Link please Elaine.

    *************************

    Elaine M. 1, December 16, 2013 at 12:10 am

    Hugh McBryde
    1, December 16, 2013 at 12:03 am

    Link please Elaine.

    *****

    I provided the link in my comment to you. Here it is again:

    http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html

    *************************

    Hugh McBryde
    1, December 16, 2013 at 3:49 am

    Elaine, you’ve now provided TWO links to articles that are older than the one I linked to, so LINK PLEASE. You’re perpetuating a myth.

    *************************

    Hugh McBryde
    1, December 16, 2013 at 3:52 am

    Scuse, but you provided a link to the SAME article I cited, and then one much older.

  81. RWL 1, December 16, 2013 at 1:51 am

    Dredd,

    The US Supreme Court, Federal Appeals or District Court can remand a case to a state court, even if the case was originally filed in a federal court.

    Please provide me a law, rule, or regulation stating other wise. Please provide me a case and/or law, stating that the US Supreme Court cannot remand a case to a state court, even if the case was originally filed in a federal (District) Court.
    ================================
    In discussing where the cohabitation-as-a-crime case is going, you asserted that the Supreme Court and/or Federal Circuit Courts of Appeal have jurisdiction to remand this case (which was filed in the Federal District Court of Utah) to a state court.

    The one alleging jurisdiction has the burden of proving that jurisdiction.

    Thus, you have the burden of proof and you must provide a case that so holds.

    There aren’t any.

    In this case the federal district court found that it has original jurisdiction of the case.

    Thus, if an appeal is perfected by the defendants it will go next to the Federal Court of Appeals for the Tenth Circuit.

    This case was not filed in state court then properly removed to the Federal district court.

    If it had been properly filed in state court and properly removed because of a federal question issue, then the District Court could have taken jurisdiction of concurrent state issues, or not have.

    The issues in this case involved federal questions, not state law questions in pleadings filed in state court, thus there is no concurrent removal jurisdiction of any state law issue.

    Had the case been brought in state court, the plaintiffs losing and the defendants winning, the case could never be taken next to a federal district court to try to get a different decision.

    That is because of the “Rooker-Feldman doctrine” (District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983), Rooker v. Fidelity Trust Co. – 263 U.S. 413 (1923)).

    The top of the food chain in this case is the U.S. Supreme Court, and the bottom of the food chain is the federal district court in which the case was filed.

    No state court is anywhere in the food chain.

  82. RWL,

    The allegations of jurisdiction in the complaint are:

    “This Court has subject matter jurisdiction of this case under 28 U.S.C. § 1331 (Federal Question) because this action arises under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, a federal law; under 28 U.S.C. § 1343(a)(3) because this actin is brought to redress deprivations, under color of state law, of rights, privileges, and immunities secured by the United States Constitution; and under 28 U.S.C. § 1343(a)(4) because this action seeks equitable relief under 42 U.S.C. § 1983, and Act of Congress.”

    (Complaint, paragraph #14).

  83. The judge here is right and I myself have been making the same argument for a while now. The very arguments that fell prior to SSM becoming law in Canada, South Africa, France, Argentina and a host of other western states are the same arguments which stand in the way of poligamy today and are just as invalid.

    Fact is where consenting adults want to live together in a certain arrangement they should be allowed to do so. Fact is if marriage is a mere contract as gay rights advocates claimed then as we all know a contract can involve more than two parties as well. As for arguments siting that marriage wasn’t meant for more than two persons, I mean really? Was marriage meant for gay people either? Lets not forget that Belgium and the Netherlands which are the first two nations and cultures to legalize and recognize gay marriage did so in 2001 ONLY! So its a little rich for gays and their advocates to start saying “there goes the neighbourhood” when the same was being said about them and STILL is being said about them today.

    The simple fact is we’ve changed the opposite sex requirement for marriage so as to include gay people hence there is absolutely no reason why we can’t amend the definition again so as to change the two person requirement thereby allowing more than two to enter into marriage. Finally for those who site child and spousal abuse as being “prevalent” in poligamous relationships, again its a bad argument. The same “prevalence” could be had for poor couples or couples of certain ethnicities where abuse is more rampant, besides we’re talking about rights here and rights are never denied people simply because they belong to a class of people with a certain “prevalence.”

  84. “The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional. What it struck down was the criminalization of cohabitation between married and unmarried adults. In other words, the decision does not provide precedent for the recognition of polygamous marriage, the immigration of harems, incestuous relationships or the abuse of women and children.”

    Sure but …

    Canada 1969 did the same thing regarding the criminalization of homosexuality. Then Canadian Prime Minister Pierre Trudeau stated that “the government has no place in the bedrooms of the nations”. Now Canada legally authorized SSM only 35 years later but the Utah decision which is analagous to the 1969 Canadian decision will ultimatety lead to the same recognition of poligamy not only because the arguments against poligamy are just as legally invalid as those that were against SSM, but that the pace of social change today is MUCH faster than it was in 1969 anywhere in the world. IOW Friday’s decision in Utah is instructive to American Courts on how decriminazing conduct can lead to its legal recognition, or else the situation regarding states which recently legalized marijuana consumption can. Legal precedent also exists in “spirit of the law” decisions such as this one here.

  85. […] starting this thread by citing a legal document and not a review of the ruling. So, here's this – Federal Court Strikes Down Criminalization of Polygamy In Utah | JONATHAN TURLEY My original argument is that, if you find that discriminating against one form of marriage is […]

  86. Gene H wrote: “Ooo. More false equivalency. Delicious.”

    You love to proclaim this “false equivalency” fallacy, but you fail to recognize that I am not arguing for equivalency. My stance has been that homosexual unions and heterosexual unions are distinctly different based upon a number of parameters such as gender diversity and reproductive capabilities that I have outlined elsewhere. In contrast, your stance is one of equivalency. You argue that these two types of unions are essentially the same. You argue that the law should make no distinction between them in regards to marriage or it runs afoul of discrimination against homosexuals.

    When I bring up other types of sexual relationships, such as pedophilia or bestiality, I am not saying that they are the same as homosexual or heterosexual relationships. I am saying that your erroneous arguments advocating support for homosexuality and same sex marriage apply equally well toward these other situations. This is EXACTLY what Professor Turley has done in this case of “Brown et. al. v. Buhman” by arguing for the privacy issues in “Lawrence v. Texas.” The decision of the court is almost entirely based upon “Lawrence,” a decision that declares a portion of a Utah State Statute unconstitutional, paving a way to open up the legalization of polygamy. If you have a beef with so-called “false equivalency,” I suggest you take it up with Professor Turley and the United States District Court.

  87. You are making the false equivalence between consensual homosexual sex and non-consensual pederasty or bestiality, David.

    That you proclaim you aren’t is irrelevant to you making the false equivalence in your assertions.

  88. Elaine. The article cites the past belief vs the current (at the time of publication) reality. Unless you cite something authoritative and more recent than the Deseret News article, you’re merely engaging in “last wordism.”

  89. Nick Curran wrote: “Fact is if marriage is a mere contract as gay rights advocates claimed then as we all know a contract can involve more than two parties as well.”

    Good point. Marriage is not just a contract. It defines a family relationship and the duties and obligations that go along with that relationship.

  90. Gene H wrote: “You are making the false equivalence between consensual homosexual sex and non-consensual pederasty or bestiality, David.”

    No, you cannot show where I ever made any such equivalency argument. You apparently do not understand the arguments of Professor Turley vis-a-vis “Lawrence v. Texas.”

  91. ‘It is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.’

    Begs the question: What is the historical deeply rooted plain meaning of Monogamy . .

    The plain meaning of the term ‘marry,’ as it is used in the bigamy statute, “The state of a man who has two wives, or of a woman who has two husbands, living at the same time” supports the conclusion that ‘Marry’ encompasses alone, one of each gender, male and female.

    However as the case illustrates, The Fourteenth Amendment expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due
    process of law’ is provided. Depriving the citizen, married or not, the free exercise to co-habit, to ban the speech of ‘purport to marry’ with the unmarried violates the concept of ones free ‘liberty’

  92. I understand Lawrence just fine and your attempts at false equivalency are manifest, David. Someone says, “Homo!” and you yell “Pederast! Dog-humper!” as if Pavlov himself rang your bell.

    If you don’t like people pointing out your false equivalencies?

    Maybe you shouldn’t make them.

  93. The Supreme Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing the citizen to hold their tongue, to not speak as in ‘purport to marry’ violates that freedom of the mind.

    Even though unmarried by state mechanism, all are free to live and speak as if they were, even if one of the parties is already legally married to another..

  94. Hugh,

    You’re the one who posted an excerpt from the Desert News article in order to refute the article that I had posted. I quoted a different excerpt from the Deseret News article. You asked me to provide the link–which I did. If you don’t like what I did…so be it. I don’t post here according to your rules.

  95. Quite frankly, Waddoups is brilliant. The State of Utah really does not want to appeal this decision. Waddoups has built a fortress guarding against successful appeal around his decision and stayed with Plaintiffs strongest arguments. Also should give props to Utah Supreme Court Justice Durham, who laid the extensive, thoughtful, framework for Judge Waddoups decision in her dissent in Green. After 120 years the courts have finally come to the right decision, laws targeting and criminalizing someone’s religion deserve strict scrutiny and should almost always found to be unconstitutional.

  96. Laws directed at limiting religious practice already get strict scrutiny under Lemon v. Kurtzman. Any law must 1) have a secular legislative purpose, 2) must not have the primary effect of either advancing or inhibiting religion and 3) must not result in an “excessive government entanglement” with religion.

  97. Elaine. First you quoted an article from 2006. The article I quoted CONTRASTED prior views (filed under the heading of “Bleeding the Beast”) with actual fact. While it was believed that a fundamentalist sect of the LDS faith WAS taking welfare, they were not. If I’m not mistake, AFTER the FLDS children WERE taken into custody, then some of the families DID end up on some form of assistance. That was a result of interference.

    What you’re doing is pointing to the same article. Emphasizing what WAS believed and ignoring part of the point of the article. What WAS believed, didn’t turn out to be true.

    I have no doubt whatsoever that some plural families in this country take inappropriate advantage of government welfare problems. What you posted was “LOOK! All PLYGS STEAL FROM YOU THE TAXPAYER” as a way of drawing a Red Herring through this discussion. There are many answers to your distraction:

    First and foremost, it simply points out the error of Government interference at all levels. Not only should they get out of marriage, but they should get out of rent, mortgages and stay away from the dinner table.

    Second, you presented plural families as lock step thieves. They are not, and weren’t. It’s a classic straw man argument, which you’ve wrapped in your smelly herring. We’re not all variants of the LDS out here. Not all LDS variants are thieves. We don’t all live in gated/closed communities and we don’t all dress funny. Even if we were all lock step in the categories that were legal, there’s nothing wrong with that.

    This is about the law. The premise for Gay/Lesbian rights and “Same Sex” marriage is access to the benefits of marriage in terms of societal acceptance, insurance benefits, inheritance rights, adoption and tax classifications, all based on sexual proclivities and preference. The proclivities of the Brown family are oriented toward four heterosexual women who are willing to have one heterosexual man between them. In addition to that, they have a religious belief that exaltation in the after life is enhanced for all participants by being in such a relationship. They believe if they want to call themselves married in terms of speech only, they should be allowed to do so. Those last two are covered by the First Amendment.

    Frankly if that offends your egalitarian ethic, you’re going to have to do what all evangelists do, social or religious. Convince them one on one by the strength of your arguments and their willingness to listen. If you fail, you’re just going to have to live with it.

  98. Dredd,

    Sometimes, I am not clear and concise. I will try again.

    Regarding Prof. JT’s case, I asserted that the Federal District Court Judge made an error in certifying this case as a federal (civil rights/civil liberties) issue, when clearly it is a states’ rights issue. Therefore, I believe that either the Federal Appeals Court or the US Supreme Court will REVERSE AND REMAND this case to the state courts of Utah. Both federal courts have the power to do this.

    You didn’t provide me with any evidence, stating that either the federal appeals or us supreme court do not have the power to do this.

    Hence, it is not a matter of whether they can do this, but when (or if) they will do this.

    Prof. JT knows this, and he also knows that his clients circumvented the law by cohabitating

  99. Dredd,

    Sorry, I didn’t finish my point:

    I meant to say his clients circumvented the state of Utah’s law against polygamy. We will see if it holds up on appeal.

  100. 16 Dec 2013,
    North Dakota Attorney General Wayne Stenehjem filed a legal opinion last week confirming that the state does not recognize out-of-state same-sex marriages, allowing a man [woman] married to another man [woman] to come to North Dakota and marry a woman [man] without divorcing his [her] husband [wife].

    The Slippery Slope of Polygamy to Plural marriage is paved with the carcass of Marriage Equality

  101. This was not about polygamy, but about cohabitation with multiple partners, mutually consenting partners, here sisters. Attorney Turley’s clients wisely called their situation “religious co-habitation” not marriage. There is only one marriage certificate among the four sisters. For now this distinction will differentiate this case from Save Sex cases. The Court’s 91 page opinion is a great read.

  102. Jonathan, This is one of the few times I disagree with you. Polygamy is simply another way misogynistic men subjugate, minimize, objectify, & abuse women and children. There is nothing healthy about it, and it should not be allowed. I wonder if the result would be the same if the common practice was for women to have multiple men in their household to service their “needs?” I feel very sorry for the children of such relationships. They have no say in the matter.

  103. Seeking. Please save me from people who want to save me.

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

    And whose children should these children be? Yours?

    Clive Staples Lewis

  104. David: “The blog here does allow a wide latitude of free speech. Perhaps too much. There is not enough moderation for uncivil comments by the guest bloggers, so the threads tend to be heavy upon emotion and popular liberal rhetoric rather than logic. As a result, the female mind and effeminate minds of men tend to rule. Saying such is sure to bring heckles because they like to pretend that no educated person believes in gender diversity anymore.”
    ***

    Let’s start here: “There is not enough moderation for uncivil comments”

    David, David, David, you really have no concept of incivility being applied to you. Even Mike S has said you have “credibility”. I suggest Mike check the dictionary regarding “credibility” because he has IMO confused it with civility and predictability. You have no credibility. Your arguments can not be trusted because they are founded on bigotry, misogyny and ant-social political ideology.

    Just look at your above statement. You long for ideas and opinions to be moderated/censored. You allege, fear actually, that the female mind and feminized men rule. There is no ‘female mind’, just women with opinions and you don’t like that. You’ve fallen back onto that kind of statement before. Feminized men? Would that be “fags” and “faggy” men? Your homophobia is so obvious that any self-declared male that does not share it, or your other quaint ideas about family can’t be ‘real’ men, can they. They have been feminized. An insult so degrading to women (as a bank shot) that you can’t be ignorant enough to not realize what you have done.

    That you are better spoken and less volatile than Tootie (a now infrequent and totally rude and mentally deranged poster- I hope she is doing better) lulls others here. They value civility in form over the substance of the hatred that lurks just below the surface of your comments and occasionally breaks through. Not me pal, not me.

    I’m an old, unreconstructed feminist and for about 20 years would have called you a pig to your face as I do now. I only stopped using that word because I like and respect my porcine cousins and in general, using an animal name to describe a person or a persons ideas is unfair and deeply insulting to the animal. But you David, you are an old fashioned, unreconstructed pig.

  105. […] 9. It is no longer merely hypothetical to argue that sanctioning same-sex marriage leads down a slippery slope toward other redefinitions of marriage, as well. Recently, a United States District Court judge recently struck down Utah’s ban on polygamy as unconstitutional. The polygamist’s attorney in the case, Jonathan Turley, cited the “right” of homosexual couples to marry as a precedent. See his Dec. 13, 2013 blog entry, “Federal Court Strikes Down Criminalization of Polygamy In U…. […]

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  108. Thank you your Honor’s – – now that we have discussed a few of the more pointed rationales as why we support the two person of opposite gender marriage, what ever you decide as is the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in an ’emotional relationship’ can be extended to all other ’emotional relationships and that will be OK

  109. Point is clear – – Rationality determines marriage – – As the question being – is marriage a Fundamental Right – then by what measure shall it be cabined ?
    Clearly no existing ‘Platonic Relationship’ [which Bob and the Twin Sisters co-habit under] can be excluded from translating that relationship to and under the umbrella of civil marriage – –

  110. The inter-personal relationship is eternal – social acknowledgment of can be obtained by Matrimony without civil marriage – civil marriage is what the state acknowledges – by what measure shall the state not acknowledge what is known and accepted towards the co-habit and not towards the married . . .

    ‘Bob and the twin sisters Sue and Sally’ may freely co-habit and create children together – – each child is equal under the states tenancy of the co-habit – which child is to be as second to the other under the tenancy of civil marriage – one from Bob and Sue or the one from Bob and Sally . . .

    . . . what ever you decide as to the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in a child rearing relationship can be extended to all other child rearing relationships and that will be OK

  111. Stepping into a discourse well beyond the subject of civil marriage
    Mapping of the Mind – Rita Carter
    Located in the temporal lobe is a religious hot spot hard-wired into humanity
    After all, if God exist, it figures He must have created us with some biological mechanism with which to appreciate Him – –

    Can perhaps define eternal as that which upward and downward causality meet, as that regardless of the point in space and time, in creation a truth is measured by the message that travels upward must always intersect with the message that travels downward, the point of intersection, the law of that intersection never changes . . e.g. no matter where is time and space, given the conditions of fuel, air and heat, rubbing two sticks together will produce fire . .

    Here though it is civil marriage and by what measure shall it be weighed ?
    State takes no action to prohibit the brother and sister from the relationship of the co-habit – – The state views it as a Platonic Relationship, yet under the tenancy of civil marriage that relationship becomes one of a sexual nature, one that the state denies giving its stamp of approval upon. If civil marriage is indeed a “Fundamental Right” that without merit transfer from the Platonic to the sexual is untenable – that transference may be made by a rational person and upheld under rationale review, that same rationale made by a rational person fails the exam of strict scrutiny – – the state makes no effort to curb the co-habit

    . . what ever you decide as to the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in a “Platonic Relationship” can be extended to all other Platonic Relationships and that will be OK

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