Today I will be appearing in federal court in Salt Lake City, Utah to argue for standing in our challenge to the Utah statute criminalizing bigamy and cohabitation. I have previously written about the constitutional issues raised by the action. This hearing, however, concerns the effort of the state to avoid review of the law by claiming that the family lacks standing, even though the state has declared their family to be a criminal association and prosecutors have declared them to be guilty under the law.
The hearing begins at 8:30 am in Salt Lake City before Judge Clark Waddoups.
One interesting issue raised by the Court was whether granting relief to the Browns would violate the conditions by which Utah was allowed to enter the Union. We filed a response on that issue arguing that our case would not violate the so-called Enabling Act. Here is that filing: Brown.Response.Show Final
Joining me this morning in court is my former student and local counsel, Adam Alba.
Here is the complaint filed in the case: Brown Complaint
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Although I’m not a lawyer, I’m wondering why legislators don’t just try to change or amend Utah law. The law against cohabitation would seem to forbid not only polygamy but married people having affairs, too. If ‘the law is the law,’ have Utah legislators tried to change it?
Thank you, I needed a good laugh. While you are correct that laws oh cohabitation are usually only selectively enforced — expecting parochial or religiously involved legislators to change a law that they view as enforcement of one of the ten commandments, to me, is an unusually funny concept, bordering on fantasy.
Generally, Utah has not been considered a progressive state in areas that recognize liberty in the governance of personal conduct.
“The point is, however, that no matter which religion it is – it wished control over any couple marrying under their faith’s auspices — something the state generally does not exercise except for health and registration or estate reasons.,”
George,
You’re right I missed the irony, but the “get” problem was understandable. Too often the refusal of allowing a “get” by an estranged spouse has been a coercive action with vindictive undertones.
Gregory W. Chmara 1, December 16, 2011 at 6:22 pm
The social isolation caused by removing polygamy from mainstream society can be a severe cause of negative and corrosive cultic behaviors, something the mainstream LDS church strives to avoid in today’s world.
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Do I understand?:
You say: “removing polygamy from mainstream society”
meaning (?)practicing polygamy in secret(?)
continuing
can cause cultic behavior
meaning (?)allows other potentially strange seeming practices to develop(?)
continuing
something …
meaning (?)and the LDS church is trying to avoid any more practices that seem unusual to the outside world(?)
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But then also, unrelated, you say
should not be regulated by government, any more than is serial polygamy, now called divorce and remarriage is by the Roman Catholic Church.
But the Roman Catholic Church does regulate serial polygamy (divorce and remarriage). (D&R).
Did you mean “any more than D&R should be regulated”
rather than “any more than D&R is regulated”?
And if you do mean “should be”, then the sentence becomes an aside, rather than an argument based on a similarity.
Thank you for asking for clarification, sometimes my short way of saying things gets in the way of thoughtful clarity.
Your first point – correct – practicing polygamy in secret under the radar of those who actively disapprove.
Continuing point – “allowing other potentially strange seeming practices to develop” may be too narrow an interpretation, as there are already many strange practices already in continuous use for a long time — as well as some new ones. Some practices have been litigated into change by the church — although established by revelation as God’s will and followed until the threat or filing of a suit made the natter public. Some of these include parts of “sacred” temple rituals and duties.
Continuing point – “something” = you are correct with the caveat that Mormons revel in being “a peculiar people” who hold their own counsel (remain silent) about things potentially labeled “sacred.” Relatively recently, for instance, the symbols of death by various primitive actions, were removed from temple rituals aimed at reminding those participating that the church was founded in blood atonement, and retribution for breaking oaths.
Unrelated – The Roman Catholic Church indeed DOES regulate divorce as an ecclesiastical matter — and technically excommunicates and RC who remarries ofter divorce without an approved annulment. Until recently divorce remained illegal in civil law in Italy and other RC majority countries, the church fighting change to a secular standard.
In the US civil regulation of divorce and remarriage does not require ecclesiastical clearance before divorce is granted and then marriage to another takes place. This is permissive serial polygamy.
Also in the USA, bigamy and polygamy — marriage and/or cohabitation, occurring concurrently with an unbroken marriage to another, is regulated by law. This occurs even though the beliefs of some sects, including LDS, Islam, and others, include ecclesiastical permissions for such to exist, even though the practice civilly unlawful. As long as these ecclesiastically permitted additionally marriages are not openly flaunted while practiced – these laws are often not enforced.
It is my opinion that the bigamy and polygamy laws are a force that drives the practice into secrecy, avoiding civil or societal enforcement and/or monitoring of the well being of those who participate, and allows them to bring up a faux inner defense that they are practicing “God’s Law” which must supersede man’s law.
The divorce law of the RC church can only affect its members and their membership in that organization, not their criminal status. Should that not be the same standard as applied to polygamous relationships between consenting adults.
Again, my unstudied opinion: I think parallels could be drawn in application of the state’s interest in these matters of polygamy along the lines of those standards applied to conscientious objectors in time of the draft, including sect membership and doctrine, whether the involved individuals were using the framework for convenience rather than deeply held doctrinal belief and practice, and whether the individuals were otherwise qualified for the status.
I hope this clarifies my thinking for you.
“I think parallels could be drawn in application of the state’s interest in these matters of polygamy along the lines of those standards applied to conscientious objectors in time of the draft, including sect membership and doctrine, whether the involved individuals were using the framework for convenience rather than deeply held doctrinal belief and practice, and whether the individuals were otherwise qualified for the status.”
In my opinion this is problemmatic. What if three atheists,
two women and a man, or vice versa, decided they wated to marry? Why would “convenience” be a bar to their being taken seriously?
As a former Mormon now Atheist I agree. Any meddling by the government in these affairs, including gay unions, multiple marriages, polyandry and polygamy, even monogamy for other than public health and estate reasons, to me is an unnecessary evil.
I also believe the Soviets had a good thing going in that church had no state power to legally consummate coupling unions — and those who wished to “sanctify” their union were first married at a civic registry, then had to schedule any religious wedding to fulfill their personal beliefs, if wished. A separation of church and state.
Whereas in the US, a marriage license is issued, but the legal union is then consummated by a separate ceremony that might be completed by a civic official (judge, mayor) with the certificate (license) then returned to be registered. Clergy of most faiths are authorized to perform what i believe should be this governmental function of legally sealing the marriage, and in many states are required to report such to government, based upon the license before the marriage is considered legal.
Therefore the discussion of civil union versus marriage was mute for the Soviets. You had to have the civil union for the marriage to be recognized by the state, and what you chose for your religious union was not supposed to be state business – and ceremonies of faith held no legal weight.
In your three atheist example I agree that any government intervention or license qualification based upon faith should be antithetical to standards of liberty and privacy. However in the real world of “Christian” America, I do not believe the faithful would cede the power of union to the state easily.
After all, that might allow gays to marry, Jews to marry Christians without a rabbi’s counsel against such foolishness, atheists to use unordained people to complete a marriage ceremony, and ceremonial profit centers surrounding a church wedding to be removed from the clergy.
The word “convenience” BTW, has been applied to conscientious objection in military service to determine commitment based upon the longevity of demonstrated belief in the religiously convicted pacifist. Apparently, according to the government, atheists are not committed pacifists. This is another issue that rankles demonstrating the entanglement between church and state.
“Jews to marry Christians without a rabbi’s counsel against such foolishness,”
Gregory,
What are you talking about, this happens all the time. Both my nieces have married non-Jews and neither needed to consult anyone, much less a Rabbi.
Yu are correct and probably did not catch the Yiddish lilt in the way I say “such foolishness,.”
The point is, however, that no matter which religion it is – it wished control over any couple marrying under their faith’s auspices — something the state generally does not exercise except for health and registration or estate reasons.,
Mh first marriage was on the road to ruin when a Catholic priest, the night before the wedding, DEMANDED my wife to be, a protestant, sign an oath to raise the children Roman Catholic — or he would not permit the use of the church facilities, or sanction the wedding, even though bookings and arrangements had been made months in advance.
A dearly beloved woman with whom I was together with for 15 years following my divorce from that first wife — did not feel right about dating anyone after her civil divorce, until her Get came through from her Rabbi.
The involvement between the state enforcing the law on marriage and licensing, and the ecclesiastical involvement in both cases, I feel was onerous — and in the former case, coercive. Obtaining the Get (a religious divorce) was a personal choice based on belief and did not involve the government.
BTW, this is much the way the Mormon’s handle temple divorce.
And please — do not start me in various entanglements between Sharia and government!
Gregory W. Chmara 1, December 16, 2011 at 6:22 pm
This (your quote) is correct as far as it goes — the PRACTICE of polygamy calls for excommunication. BUT, the doctrine of polygamy is alive and well …
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Good enough.
Gregory W. Chmara,
… the practice of polygamy was prohibited, the doctrine was never repealed and remains among the dogma of the LDS Church.
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You are a spreader of falsehood:
“The family is ordained of God. Marriage between man and woman is essential to His eternal plan. At certain times and for His specific purposes, God, through His prophets, has directed the practice of plural marriage (sometimes called polygamy), which means one man having more than one living wife at the same time. In obedience to direction from God, Latter-day Saints followed this practice for about 50 years during the 1800s but officially ceased the practice of such marriages after the Manifesto was issued by President Woodruff in 1890. Since that time, plural marriage has not been approved by The Church of Jesus Christ of Latter-day Saints and any member adopting this practice is subject to losing his or her membership in the Church.”
LDS Link
This (your quote) is correct as far as it goes — the PRACTICE of polygamy calls for excommunication. BUT, the doctrine of polygamy is alive and well, with the end goal to create population increasing residents, first of Kolob, then of other worlds, through polygamy. It is the DOCTRINE to which I refer, not the practice. The manifesto has not been included as a revelation contradicting doctrinal beliefs, EXCEPT for practice. And, those practicing polygamy, who moved to the colonies (Colonia) in Mexico were not excommunicated.
It is this dogma that allows the fractious schisms to chip off the practicing (fundamentalist) sects to parallel LDS beliefs. Of note, the Romney clan was one of those Mexican colonial families – who, upon being driven from Mexico by Pancho Villa, ceased the polygamy in most branches of the family as the elders died off.
My point, however, is that the polygamous life, as a religious belief, should not be regulated by government, any more than is serial polygamy, now called divorce and remarriage is by the Roman Catholic Church.
The social isolation caused by removing polygamy from mainstream society can be a severe cause of negative and corrosive cultic behaviors, something the mainstream LDS church strives to avoid in today’s world.
Therefore I disagree with your quotation of the manifesto as anything but a weasel worded document issued to allow Utah to be admitted to the union and get out from the onerous opinions of theocratic rule of the early Mormon church in the territory.
I think that the claim that the Browns do not wish the state to acknowledge their public living arrangements is not a fair request to ask of the state. At some point, the state will be asked, in the general case if not this particular one, to take into account the public living arrangements, as various members of the group assert their rights, should conflicts arise, and should they turn to the courts for relief.
The idea that this is a private matter into which the civil government need not be involved is, i believe, not a presumptively reasonable claim.
The presumption might possibly be overcome if each member signed a release, but even then, is your right to access judicial remedy unalienable?
Does Utah recognize common-law marriage might be a relevant question.
Possibly the state should eliminate the assumption of a standard marriage contract, and make each couple or assembly file an explicit contract.
As a former participant in the Dungeons and Dragons adult mind game promulgated by the “real” Mormons, I realized that although the practice of polygamy was prohibited, the doctrine was never repealed and remains among the dogma of the LDS Church.
In my opinion it is only the legal constraints on polygamy that has forced the “fundamentalist” Mormon practitioners underground and into cultic separations from society. It is this separation that has removed free will from equation of those who must hide the practice and then impose it on the faithful of their group — including minors. It is this practice being kept secret to avoid legal entanglements that removes open interaction and its concurrent societal monitoring from the social equation. Generally open social interaction offers better protection to the the young or brainwashed.
It is not just the problem of polygamy and privacy that needs to be addressed, but the totality of blind faith and belief in destructive totalitarian doctrines of many religions, polygamous or not. Religion has no place looking into other people’s private lives and labeling them sinners or criminals for not adhering sectarian rules which members may believe as their spiritual guides.
Anyone know how the hearing went?
Mike,
Indeed.
So much of societal “knowledge” that the state is wont to force on others is actually, upon closer analysis, nothing more than belief in what others say they know.
“First, the statute simply required the prohibition of “polygamous or plural marriage.” The Browns have expressly and repeatedly stated in their Complaint and later filings that they are not challenging the Utah Constitution’s prohibition on recognizing plural marriage. They have not sought, and do not now seek, recognition of their spiritual relationships or beliefs by the State. They are asking to be left alone by the State in their private associations between consenting adults. There is only one marriage license in the Brown family and that license is between two consenting adults in conformity with state law.”
This to me is the bare bones and crucial issue at stake. Does the State have a right to define the living arrangements entered into freely by adult individuals? I agree that the State does not have the right to intervene into peoples privacy. Your response also disposes of the anti-polygamy clause of the enabling act. This issue is far from frivolous. The Browns are being selectively prosecuted because they had the temerity to go public with their living arrangements. Adults have the inherent right to cohabit, have and raise children with other consenting adults, without State oversight.
Bravo Mike,
I couldn’t agree more. Over time there have been a great number of attempts to legislate what goes on in our bedrooms. Laws against Sodomy, oral sex, homosexuality, Poligamy, etc.
In every case the result was to turn a otherwise average population into criminals.
No one ever stopped any sexual activity because someone passed a law against it. The drive is too strong. This is evidenced by the overwheming rate of recidivism among Pediphiles.
The drive is the same. It’s just that the Pediphile is also a predator who chooses those who have not the capacity to consent. He is therefore is infringing on that child’s rights and is therefore a criminal.
To attempt to legislate the behavior of consenting adults is not only wrong but it is a very expensive way to declare your own righteousness. Strictly a political tactic. Why else would a man propose a law which is unenforcable and a drain on the public coffers as well.
I can see that a jurisdiction might not want to allow Polygamy because of the possible legal entanglements involved with Community Property, Medical decisions, inheritence etc. But these are legal matters and have nothing to do with the free choices of adults concerning where and with whom they sleep and procreate. O reven what words they use to describe their relationship as long as there is only one legal spouse.
The use of a “lack of standing” defense, by the state, makes me wonder if they have some concern about their defenses they will try to assert against the merits of the case in chief.
Good Luck….and…does this really surprise you…giving the fact that…civil liberties are being stripped away….
Give them hell Prof.
Good luck Professor! I think you may have a book to write on this case before you are through.