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
The Lawrence court made it clear that the Bowers court was so narrow minded that they failed see that the scope was broad, not narrow:
(Lawrence, supra, emphasis added). The liberty interest the Mr. Magoo [Bowers] court was looking at, but not seeing, is the liberty of consenting adults to do sexuality any which way they want to in the privacy of their home.
The Lawrence court expanded the case law out to the proper boundaries, leaving grandpa’s narrow, Mr. Magoo vision of teensy weensy liberty in its wake.
“That is why Bowers was
reversedoverturned …”For those who have the Bowers impairment, listen to what the Lawrence court said to the Bowers court, and by extension is saying to you:
(Lawrence v. Texas, 539 U.S. 558, emphasis added). That is why Bowers was reversed, the Bowers court had been way to narrow minded, failing to envision the ramifications of what the state was doing.
No, but it is relevant to the fact that you are not interpreting the situation regarding applicability of Lawrence properly as they apply to this case which involves much more than just consensual sex between two adults in the privacy of their own home. But you stick to that false equivalence between homosexuality and polygamy all you like. It looks good on you.
Gene H. 1, August 18, 2012 at 10:59 am
Totally missing the point as usual, Dredd.
…
Now where did you go to law school again?
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Where I went to law school will not have any impact on the case, so it is irrelevant.
And it is you who is missing the point, which is a consequence of your misreading of Lawrence.
Homosexuality or any other sexuality is not a pertinent factor, and was not considered in reaching the decision, making it dictum:
(Lawrence v. Texas – 539 U.S. 558). Therefore, as in Lawrence, “the [Sister Wives] case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty”.
The material facts are as they were in Lawrence: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.”
The fact that the state backed off, as did the county, in terms of publicly stating they would not prosecute the Sister Wives is indicative that the state feels some heat from Lawrence, so they went further and asked the court not to decide the constitutional question.
The relevant facts that were used to decide Lawrence are already established in the present Sister Wives case, so all that remains to be ruled upon is whether the act of two adults having consensual sex in the privacy of their home can be deemed criminal.
Totally missing the point as usual, Dredd.
The state has the right to license and/or prohibit any behavior it can show a valid state interest in licensing and/or prohibiting. Given the difference in fact patterns (homosexuality does not equate to polygamy just because certain segments of society don’t like it; fallacy of false equivalence) and vastly different sociological and psychological impacts of polygamy when contrasted with homosexual relationships, that the anti-polygamy statue in question doesn’t constitute both a valid state interest and doesn’t substantially impair any Constitutional rights in pursuing valid state interest(s) is not a given. So, like I said, the factual patterns are different enough so that Lawrence isn’t prime facie controlling although it will play substantially into the arguments. Either new law will be created or the statute will be upheld.
Feel free to disagree all you like.
Now where did you go to law school again?
The Lawrence court considered three issues, the second one being:
(Lawrence v. Texas – 539 U.S. 558). The issue of “criminal convictions for adult consensual sexual intimacy in the home” is the case in chief in the present Sister Wives case.
The Sister Wives are not asking for a state license for polygamy, they are only asking not to be criminally prosecuted for their adult consensual behavior in the privacy of their home.
This seems to me to be well within the parameters of Lawrence.
What Mike S. said!
Gene H. 1, August 18, 2012 at 9:00 am
… Dredd, it may seem that Lawrence would be controlling but the courts have a fair amount of wiggle room provided by the different fact patterns vis a vis licensing.
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rcampbell 1, August 18, 2012 at 9:44 am
Dredd
“As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom….”
I admit I neither read the decision nor am I an attorney, but I thought the ruling was considered narrow …
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Justice Kennedy, who wrote the opinion in Lawrence, picked up on the notion of the Texas criminal statute, as well as the Bowers statute, being more narrow than his language in Lawrence would indicate:
(Lawrence v. Texas – 539 U.S. 558, emphasis added). This is on all fours with the issues in JT’s Sister Wives case, in the sense that the state has a licensing right to only license one husband / wife relationship, but at the same time the other behavior, even though not licensed, is protected activity that a state cannot criminalize.
“Polygamy is a much less offensive lifestyle than same sex marriage or even opposite sex couples cohabiting and having children out of wedlock.”
Michael J. Marsalak,
I would suggest that you do some study of the Constitution because you are under the mistaken impression that what is offensive to you should be prohibited. I personally find people who would look down on gay marriage and children born via cohabitation as extremely offensive individuals. Should my judgment of these people, perhaps yourself, be enforceable by law?
Malisha,
Agree wholeheartedly with your main issue.
And you do bring effectively why marriage is a state regulated matter, ie the “property and child rights” involved.
Mohammad had his wives living in separate houses.
The lethal battles of wives competing for the favor of their sons is another precedent, notably in the Ottoman Empire.
Having ONE husband to abuse you is enough, having his other wives doing it would be too much.
Or the japanese wife who is household slave in her mother-in-law’s home.
Marsalek,
Read my comment from yesterday about gay and lesbian couples enjoying their children here in Sweden. Come and see how it works.
And let us not forget polyandry. Practiced in Mustang, a little buddhist Kingdom in Nepal. The shortage of women leads to the older brother sharing his wife with his younger brothers.
The duties of the brother visavis his dead brother accdg to OT will not be mentioned further, but us noted.
Dredd
“As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom….”
I admit I neither read the decision nor am I an attorney, but I thought the ruling was considered narrow and decided not that the state (Texas) had NO jurisdiction but that the law as written prohibited certain acts if performed by some people (homosexuals) while allowing those same acts by others (heterosexuals). The decision may well have gone farther in defining a state’s or all states’ role in privacy, I don’t know for certain.
I really can’t find this all that exciting. Marriage is not a private contract; it is a state-involved thing. I don’t know how it will play out when one of seven spouses wants to divorce two out of the five others, do you? At the bottom of it, I have begun to wonder what is so sexy about some constitutional issues and cases while others die in vacuums. I remember becoming quite exercised in 1986 when I tried to find legal help for a true constitutional issue (A CHILD BEING ENTITLED TO REPRESENTATION IN A CUSTODY BATTLE ABOUT HIM) when one of the top constitutional scholars in the country, at U/Penn, was working on constitutional animal rights of some dog named Torro. And I’m a dog-lover.
What OS said.
And Dredd, it may seem that Lawrence would be controlling but the courts have a fair amount of wiggle room provided by the different fact patterns vis a vis licensing. I used to be in the “contractually formally valid so why not camp” concerning licensed polygamy until Elaine and (I think) anon nurse turned me on to some studies that revealed some fairly convincing valid social policy reasons based in both psychology and sociology to not allow the practice formally. When balanced against other competing issues (free exercise, etc.), this could still go either way once a hearing on the merits is had. As the Prof. himself notes, “[t]he decision does not indicate how the court will rule on the merits of the challenge and both parties will be given an opportunity to argue the myriad of constitutional issues raised by the Brown family.” While the denial of the Motion to Dismiss is a technical victory leading toward finality based on a full and fair hearing on the facts, Lawrence is not factually similar enough to be prime facie controlling (although I’m sure it will play a substantial part in the arguments).
And congrats, Jonathan.
I look forward to seeing how this issue plays out.
Michael J. Marsalek,
There are a lot of things that are personally offensive to my delicate sensibilities, but they are legal and should remain legal. I don’t like broccoli, but would not think of keeping others who like it from having it if they want it.
As for gays somehow disrupting heterosexual marriages, all I can say is that if a marriage is that fragile, then the couple has a bigger problem than the gay couple down the street.
The real gist of the case at this stage was explained by JT:
This gets back to Lawrence v. Texas – 539 U.S. 558 (2003).
The case was cited in the complaint as I mentioned on another thread.
As you recall, Lawrence held that states have no jurisdiction over consenting adult behavior in the privacy of their bedroom.
Lawrence involved state criminalization of that behavior between homosexuals.
The current case involves one marriage license, yet multiple non-homosexual relations between several women and one man.
It seems to me that the principles enunciated in Lawrence are controlling in the context of the facts of the case.
Polygamy is a much less offensive lifestyle than same sex marriage or even opposite sex couples cohabitating and having children out of wedlock.
Many thanks and Gratulations to you Professor Turley and your legal team for another frequent victory in attaining civil rights for us.
I wonder if the state will move to settle the section 1983 action in short order, perhaps it might be to try to deflect having a judgement against them setting a precident. I know circumspection is of importance but I wonder if the family might want this to come to a conclusion.
I tend to believe that some cases are of such greater importance if it goes to a ruling of a jury and sets a historic decision to solidify the action for others.
Sadly, it is the case where individuals who are up against the government or a large corporation in a civil rights action that these folks are the ones who tend to pay the highest price in terms of worry and cost (often more than economic) It is from this that we should also afford the Brown Family as much acclaim for their courage and resolve to endure the ordeal so that others will not have to.
This is getting interesting, I thought that the court would avoid the big issues (as they often do), but this could set some real precedent in constitutional and family law. I congratulate Mr. Turley and his team on getting this far.