Just an hour ago, Judge Clark Waddoups handed down an opinion denying the second motion to dismiss filed by the government. Despite predictions that the motion would succeed, Judge Waddoups has now set the case for final arguments on the merits and rejected the claims of the government that the case is now moot after it announced that it would not prosecute the Brown family.
This was the second effort to dismiss the case without a ruling on the constitutionality of the statute by the government. The first motion to dismiss was based on a claim of lack of injury. This second motion to dismiss is based on the claim that the matter is now moot. The government asked the Court not to rule on the constitutionality of the state law in light of recent changes in policy.
The court holds:
Mr. Buhman’s non-prosecution policy was implemented more than eighteen months after the alleged conduct that gave rise to this suit occurred. As discussed above, the timing of the policy implementation, lack of any public notice, and lack of reasoning given for adopting the policy suggest that the policy was implemented, not to provide a remedy to Plaintiffs in this case, but instead to evade review of Plaintiffs’ claims on the merits. Moreover, the policy implemented by Mr. Buhman does not provide Plaintiffs with all the relief they are seeking. It has already been established that the policy at issue is insufficient to alleviate the risk that Plaintiffs will be prosecuted or threatened with prosecution for their violation of Utah’s anti- bigamy statute in the future. Plaintiffs are seeking a declaration from the court that the statute is unconstitutional and a permanent injunction against enforcing the statute against them “on the basis of their consensual plural family association.” Civil Rights Complaint 39 (Dkt. No. 1).
Plaintiffs are also seeking relief under 42 U.S.C. § 1983 for injury they claim to have suffered because of threats of prosecution. The policy of Mr. Buhman’s office falls far short of providing Plaintiffs with all the relief they seek.
As previously noted, I must remain circumspect in any public comments on the case since I am serving as lead counsel for the Brown family. However, on behalf of the Browns and the legal team, I wish to express our thanks to the Court in clearing the way for a ruling on constitutionality of the anti-Bigamy statute. While our opposing counsel Mr. Jensen and Mr. Roberts should be credited with an impressive and determined defense of their client, this decision shows that there will be no alternative to a ruling on the merits in this case. I am grateful for the inspired work of our legal team including Adam Alba, Geoffrey Turley (no relation), Matthew Radler and Gina D’Andrea.
The decision does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family. Regardless of the outcome on the summary judgment motions now scheduled by the Court, both the Brown family and the people of Utah can now expect a ruling on the power of the state to criminalize private relations among consenting adults. It is a day that the Browns and many plural families have waited a long time to see in Utah. They are profoundly thankful to Judge Waddoups for allowing that day to come.
Jonathan Turley
Here is the opinion: Order Denying Motion to Dismiss
It is time for Willard Milton Romney to weight in on this fight.
Did someone commenting above blame President the Obama for this Mormon dog fight? I see it as one side of the Morman conflagration against another. The State of Utah prevents a male from having several wives even if they live in different houses and are “separate but equal”. The separate but equal doctrine was struck down by the U.S. Supreme Court many years ago but the separate but equal people keep on fighting. They are barking up the wrong tree. I suggested above, but nobody else bit, that the right of privacy argument under the Ninth Amendment could carry the day. These rights of the people are nowhere outlawed in the federal constitution and therefore remain with the people. I sure hope that Turley and his lawyer pack are not barking up the “separate but equal doctrine” in Utah state courts or Utah federal courts. Our dogpack has has a standing rule that no two dogs are equal and that it is darn near impossible to separate guys like HumpinDog from anything, much less a female dog. He claims rights under the so-called Equal Rights Amendment but we in the dogpack think he is barking up the wrong tree on that one. If I was living in Utah and those Mormons caught me with more than one wife, I would be Taking The Ninth.
AY,
It’s not yet an Obama scud. This is Utah, only
But, I would think it could be a scud for Romney. Can’t believe he wants this on people’s mind come election day. Has there been a previous discussion on how this may impact federal law?
Congratulations. Wow, the state realy, realy didn’t want to answer the question and has delayed as long as possible but it’s on now! Lots of luck in arguing the actual case.
Congrats Professor!
Dave P: I find it odd that when I read the same book, you seem to have read, I find no passage condemning polygyny. King David had several wives at the same time, was called a man after God’s own heart and was only called out for adultery when he took another man’s wife but not for his other wives… are we reading the same book?
We don’t live in a theocracy, thank God.
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Congrats to Prof Turley and the team.
itchinBayDog 1, August 17, 2012 at 10:57 pm
The Constitution is subjective. Like almost everything else. I will take on any shrink any time. They will lose. If they want to find out they can’t do it, that’s up to them.
I suppose a state can say that we each get one drivers license, but then extend that to one marriage license. But a fundamental right of privacy under the Ninth Amendment would not allow a state to deny a marriage or penalize one for a second marriage. Marriage is a matter of privacy and is a right not usurped by the federal government in the text of the constitution nor usurped by the states in the federal constitution. As with the right to decide one’s own pregnancy, a right of privacy extends to one’s family relationships. When the cops want to question me about something I have a right to remain silent under the Fifth but I have a Ninth Amendment right to privacy and can take the Ninth as well as the Fifth. These people should invoke the Ninth Amendment.
J. Brian Harris, Ph.D., P.E. 1, August 17, 2012 at 9:51 pm
Is there any viable alternative to one or another form of coercion other than living in harmonious accord with individual conscience in ways that are not actually abusive?
====================
Do you think you can hypnotize me. Don’t bet on it.
Sorry if I’m being an a**.
Handing the Obama DOJ another scud…… Lol….
Is there any viable alternative to one or another form of coercion other than living in harmonious accord with individual conscience in ways that are not actually abusive?
bigfatmike 1, August 17, 2012 at 9:25 pm
You’re not going to get a harem.
@Dave P. “polygamy in ANY form is an abomination to God and there are no exceptions”
Well maybe so. But since God is omnipotent it would seem that God could take care of problems like this all by him or her self. It is still a mystery to me what the state should be involved with the enforcement of God’s will – unless the state is a theocracy.
On the other had, since God does not seem to have taken an active role in punishing polygamy, perhaps he or she is actually indifferent to polygamy. Perhaps the idea that polygamy is an abomination is actually confusion regarding the true will of God.
Is it possible that the true interest of God has to do with loving relations regardless of the specific identities of those involved in the relations?
is Adam Alba any relation to Jessica?
You can almost hear it coming whenever you read a “I believe in blah blah,
BUT…”.
BROTHER DAVE — based on your expressed view, your concern will soon
end, given that Mormon polygamy has been around for a fairly long period of time now.
Hopefully, that will bring you some level of comfort.
I believe in giving people their freedom, but of course I also believe that people are responsible for the consequences of their own actions. Believing Mormons need to learn and understand that polygamy in ANY form is an abomination to God and there are no exceptions. In fact, for those who read and believe in the Book of Mormon, it doesn’t take long to see how polygamy became one of the reasons for the destruction of the Nephites, mainly because it was also one of the reasons for the destruction of Jerusalem as explained in Jacob 2.
Good job.
Is Utah part of the United States or not? Make a decision.
Geoffrey Turley isn’t related to Professor Turley.
I am eagerly awaiting the court’s decision.