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
Gene
Then shall keep it simple for you
“What is the Constitutionality basis of the 1 man 1 woman marriage laws.”
What supports the State providing the benefits to such unions?
You really don’t understand how the law works, do you?
That’s a rhetorical question.
Gene
“No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ” [this is my assertion about a psychological fact]
Pair bonding for marriage and associated benefits is limited to 1 man 1 woman as argued by the State. Bonding is not limited by nature to just a Pair so your psychological argument is without merit.
As I said “Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.”
You go on with irrelevant, Sitution is simple
If the marriage laws concerning 1 man 1 woman are Unconstitutional then so are the benefits afforded to those marriages.
Anti-bigomy laws discriminate upon the orientation of the bisexual
We know marriage is not a Fundamental right for 1st cousins are allowed to marry in some States and not others
“What interest is their for the State to become involved in personal bonding?
Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?
Again, what interest is their?
You say – “The Section 3 of DOMA you refer to is unconstitutional ”
which simply means the Federal benefits afforded 1 man 1 woman married couples are also unconstitutional.
This case seeks not State support as given to Traditional Marriage, This case seeks only not be held criminally liable for living a private and personal lifestyle. In that it brings to the fore front the States definition of who may marry reaffirms the States interest in marriage as 1 man 1 woman.
“Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.
Natural procreation, the sole unique qualifier that holds as constitutionally valid, the tax benefits given to opposite gendered marriage over and above any other relationship.
Monte,
“Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits” [that is your assertion about a legal fact]
“No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ” [this is my assertion about a psychological fact]
Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.”
Ergo, I don’t have to establish a damn thing, Monte. You need to establish that pair bonding (a psychological and sociological concept) is narrowly defined to one man and one woman and that such a limitation on gender is permissible Constitutionally (a matter being decided currently on a state by state basis). Your definition of pair bonding relies upon a religiously loaded definition instead of scientifically based definition. There is no compelling state interest in defining marriage as between one man and one woman. For the tax and benefit provisions you are discussing, the DOMA was declared unconstitutional in a unanimous decision by the 1st U.S. Circuit Court of Appeals. Your definition of marriage? Not addressed. Until (unless) SCOTUS hears the case? It is still unconstitutional to define marriage as between one man and one woman for tax and benefit purposes. Also Section 3 of DOMA has been found unconstitutional in seven federal courts on issues including bankruptcy, public employee benefits, estate taxes, and immigration. There are currently five cases related to DOMA awaiting cert. Again, you wish to argue apples and oranges: gender and sexual orientation is irrelevant to the issue of plural marriage.
“Current laws do not discriminate against gender, Both genders are treated equally. To say they discriminate against homosexuals you must provide a unique qualifier to establish why they are different in class. Orientation is invalid. Other than self declaration their is no test for orientation. Claiming orientation includes the Bisexual orientation, plural marriage.”
Again, gender and sexual orientation is irrelevant to the issue of plural marriage. Plural marriage and homosexual marriage are a false equivalence for the purposes of valid state interests.
“What interest is their for the State to become involved in personal bonding?
Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?
Natural Procreation, the Constitutionality of, allows for the seperation
States Constitutional argument and DOMA establish tax payers subsides benefits for marriage are based solely upon 1 man 1 woman, natural procreation. If that position is ruled Unconstitutional, then traditional marriage and the benefits are ruled Unconstitutional.”
The Section 3 of DOMA you refer to is unconstitutional until and unless SCOTUS says otherwise, your wishful thinking on how stare decisis, the finality of decisions and the appeals process work notwithstanding.
They’re Not The Same
The Salt Lake Tribune published an article yesterday in which a Deputy Attorney General made some remarkable comments about Kody Brown’s challenge of Utah’s lame bigamy statute. In a state whose principal church successfully tells whopping lies to its membership it is not hard to notice that senior law enforcement representatives live in utter la-la-land.
Jerrold Jensen, whose unenviable task is to face down Jonathan Turley, suggested to Tribune reporter, Lindsay Whitehurst, that the 2003 Lawrence v. Texas decision will not help the Browns’ case. Just so you can see the absurdity of his thinking, let me play this out in simple terms.
When John Geddes Lawrence and his male partner were arrested in Texas for gay sex acts, it had nothing to do with any attempts to marry. Their crime was their private homosexual sexual activity. Gays all across the nation would love to get legal marriage licenses. That’s what Proposition 8 was all about. They don’t just want “legal unions”. They don’t want merely not to be classed as criminals any more – they want legal, state marriages – – you know – the kind with a state marriage license and certificate – the kind that only legal divorces can undo.
Polygamists have private sex – just like other married and single Americans. The Lawrence decision made all of that legal, – constitutionally protected. The sex and the private expression of it between (or among) consenting adults is beyond government’s power. Polygamists cannot be charged for their private sex, and Utah law enforcement officials damn well know it – which is why they now: a.) will never charge consenting adult polygamists, and they: b.) dread having to defend the bigamy statute. They insist that the law is constitutional, but they insist on not enforcing it. Let us read what AG Jerrold Jensen said –
‘. . . State lawyers, on the other hand, point to other court decisions upholding the ban and say marriage can be regulated by the government. They argue the law is fairly applied to both polygamists and people who commit fraud by marrying more than one unknowing person at a time. Deputy Utah Attorney General Jerrold Jensen said polygamists shouldn’t rely on Lawrence v. Texas, the landmark 2003 right-to-privacy case that struck down laws banning intimate homosexual contact.
“Plaintiffs try to equate private sexual conduct in the home with marriage,” he wrote in court documents. “They are not synonymous.”‘
Honestly, I am confused by his argument. He says that we polygamists equate our private sexual conduct with marriage. No, we don’t. We speak of our ladies as “wives”, but neither in Arizona nor in Utah does the state recognize or legitimize these religiously-framed relationships. In fact, in Utah, such relationships cannot claim official marriage status, because they are voided by law.
30-1-2. Marriages prohibited and void.
The following marriages are prohibited and declared void:
(1) when there is a husband or wife living, from whom the person marrying has not been divorced;
(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
(5) between persons of the same sex.
(6) Marriages between cats and dogs (yes, I added this one !!!)
I think what Jensen is trying to say is that the crime we polyg’s commit is that we think of our partners as “wives”, even though the state forbids such thinking, and that we become felons because we wish our relationships were licensed. On the contrary, we don’t wish to have our unions legitimized by the state, and certainly no homosexual has ever been arrested for wishing he could have a marriage license. Furthermore, Mr. Jensen, it seems to me that it is the state that wants to classify our non-legal relationships as “marriages”, so that it can find us guilty of committing bigamy. Tom Green spent several years in prison for having multiple wives, even though he was legally single.
Jensen is ostensibly conceding that Lawrence will protect the Browns’ sexual activities, but it will not protect the lifestyle they have adopted. I agree. Lawrence was never about lifestyle or relationships – it was only about private sex. However, when Jensen gets to argue his tortured reasoning in January, will he be able to point to a single statute or a Supreme Court decision that affirms the criminality of a RELATIONSHIP !!!!!!!!!!!!!!!!! ? I can hear Judge Waddoups giggling already. Will Jensen argue that our crime stems from our improper use of the word “wife”?
In the 1940’s, one of Rulon Allred’s wives was arrested for playing the piano at a church frequented by polygamists. If Utah still thinks that kind of tyranny is okay, I should move to France.
Renn Oldbuster,
Your comment was well argued. It is clear that the Utah prosecution is actually one that deals with the state of mind of polygamists. That they do not try to use the States legalities of marriage, but do consider themselves as being married appears to be intolerable to the State (LDS?). While polygamy is a lifestyle that doesn’t interest me, as long as it involves consenting adults in non-exploitative situations, I think it is none of the business of the State how people decide to live their lives. More-so, I believe that freedom of choice is Constitutionally protected.
It is my impression that Mormons do a wonderful job of taking care of their own, through the church. Admirable community. Bishop Romney tiths his 10% to the church, spins it as akin to a tax, as he used the total of his 13% + his 10% tith to infer he pays 23%. Cannot Bishop Romney’s substantial support of the church be said to support plural familial associations?
Another way to look at it, Bishop Romney really is misunderstood. Anne’s
right, he really is a wild and crazy guy. Plural arrangements, It’s just another name for “swinging”. I am sure Mr Hefner and Mitt will be quite comfortable as bedfellows.
Regards,
Lexmanifesta
“Furthermore, Mr. Buhman’s declaration clearly indicates that he believes the statute could be properly enforced, if the prosecutor exercises his discretion to do so, against an individual who violates Utah’s anti-bigamy statute when the individual is also committing some other crime specified in the policy.”
Utah holds natural procreation as the basis for supporting marriage.
Utah Constitution, Art. 1, Sec. 29 (2004) limits marriage to the legal union between a man and a woman, and restricts unmarried domestic unions
anti-polygamy laws were — and are — facially neutral: They apply equally to secular and religious. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious belief in the West, but also intent on preserving the long tradition of marriage between one man and one woman.
@bigfatmike
“The more some one claims ‘state interest’ the more I am inclined to ask why?”
Which is fine to ask why, the answer may not suit everyone
Question to be answered is
Under what Constitutionally valid claim does the State support traditional marriage?
Some unique qualifier must exist to hold one group above the others, To date natural procreation is the argument of the majority.
ie: you desire a portion of my taxes to subsides your marriage, upon what claim gives you the authority to take from me?
Natural procreation is that authority
I have no interest in your marriage based upon a committed relationship any more than the committed relationship of the co-habituating couple.
The question yet to be answered is
What is the Constitutional basis to support marriage?
Hawaii reaffirms traditional marriage is Constitutional which was put into question years ago.
Following the Supreme Court’s ruling in Baeher, then, the State confronts a situation whereby existing heterosexual marriage is ‘‘presumed to be unconstitutional
@Monte ‘For that is what the State argues ,’
Wait a minute. Now you are getting me confused. I think, and correct me if I am wrong, at first you said certain propositions are always the state interest as though some grand principle or self evident proposition were at stake. .
Now you seem to be saying that certain propositions are the state interest because the state, in a particular situation, claims those propositions are the state interest.
I think I have to conclude that what is claimed to be the state interest in a particular case or situation is not always the state interest. According to your most recent formulation, I have to believe that the state interest depends on who controls the machinery of the state – ie the administration. What the state claims is the state interest depends on elected state officials, the particular attorneys representing the state, perhaps certain influential interest groups, etc, etc.
I think part of my point was that some people remark on ‘state interest’ or ‘compelling state interest’ as though we have an obligation to give that statement special deference or assume special credibility.
But according to your most recent remark, I would have to conclude that ‘state interest’ is nothing more that the opinion of a few state officials masquerading as some sort of grand principle.
Based on your remarks I think I have to conclude that we all have an obligation to critically examine ‘state interest’ as carefully as we examine any other opinion.
Based on your most recent remark, I think I am still pretty comfortable with my previous remark to the effect that ‘state interest’ is just a way to rationalize the assumptions and prejudices of the status quo.
The more some one claims ‘state interest’ the more I am inclined to ask why?
@Gene H
“Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits”
“No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals ”
Before you can make such a claim, you must first establish the Constitutionality of the 1 man 1 woman marriage laws.
Current laws do not discriminate against gender, Both genders are treated equally. To say they discriminate against homosexuals you must provide a unique qualifier to establish why they are different in class. Orientation is invalid. Other than self declaration their is no test for orientation. Claiming orientation includes the Bisexual orientation, plural marriage.
What interest is their for the State to become involved in personal bonding?
Why then, would the personal bonding of the Co-Habitation Couple be less worthy of state support than that of the personal bonding of the married couple?
Natural Procreation, the Constitutionality of, allows for the seperation
States Constitutional argument and DOMA establish tax payers subsides benefits for marriage are based solely upon 1 man 1 woman, natural procreation. If that position is ruled Unconstitutional, then traditional marriage and the benefits are ruled Unconstitutional.
However this case is not raising that issue directly, only the decriminalisation of the actions of private people
“Sure we do Anti-Polygamy laws discriminate upon the orientation of the Bisexual, therefore orientation is an invalid.”
The assumption is that all wives involved in a polygamous marriage are bisexual instead of practicing some form of serial heterosexuality.
“Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits”
No. Pair bonding is in a pair of people. Saying it is a man and a woman solely is simply discrimination against homosexuals and relies upon a Biblical definition of marriage, not a psychological definition for pair bonding. Such bigotry doesn’t render the point moot. It merely furthers bigotry founded in religion that has nothing to do with what modern psychology tells us about how people bond with one another.
“We know anti-polygamy laws discriminate upon orientation ”
We know no such thing.”
Sure we do Anti-Polygamy laws discriminate upon the orientation of the Bisexual, therefore orientation is an invalid.
“when the standard dynamic in human behavior (regardless of gender) is pair bonding. ”
Pair bonding is that of 1 man 1 woman to be eligible for tax payer benefits
1 man 1 woman spreads that discrimination equally across genders, makes the matter moot as illustrated in the Hawaiian case
Hawaii
The ruling also says that Hawaii’s marriage laws do not treat males and females differently as a class, so the laws do not discriminate on the basis of gender.
@bigfatmike“That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman”
Why is that the state interest?
Why ‘offspring by natural procreation’.
For that is what the State argues as the Constitutional basis for supporting marriage, that is why. matters not other opinion, the State is in charge of benefits distrubition
Hawaii case reaffirms that claim by the State holding 1 man 1 woman marriage Constitutional
” There are various interests that the traditional definition of marriage, even alongside a regime of civil unions, can rationally be thought to serve: encouraging the stability of relationships that have the ability to procreate naturally (pp. 98-105); promoting the ideal that children be raised by both a mother and a father in a stable family unit (pp. 105-111); and cautiously experimenting with social change (pp. 111-116)”
“Why not limited only to citizens who choose to commit to the essential duty of parenting.”
Without compelling reason to hold marriage above all other pairings you run into 5th Amen arguments. Why should the co-habitation couple be denied benefits. Without cause all those individuals who are actively engaged in parenting are of equal standing married or not.
“We know anti-polygamy laws discriminate upon orientation ”
We know no such thing. Polygamy is less about gender than it is about multiple parties when the standard dynamic in human behavior (regardless of gender) is pair bonding. Anti-polygamy laws are policy against mutli-party relationships, not orientation which is a function of gender identity. That’s why it’s a non-issue. The key is form, not gender identities of the parties involved.
Should the court (or SCOTUS if it comes before them) find that polygamy is protected by the Constitution? Then the details of succession/devolution issues, mutual capacities, rights to benefits, etc. will become an issue primarily for the legislature but secondarily for the lower courts. As with the issue of homosexual marriage, I’m sure the Full Faith and Credit issues will eventually be litigated as well.
“The state has the right to license and/or prohibit any behaviour it can show a valid state interest in licensing and/or prohibiting.”
That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman.
Lawarance argued what “Two Consenting Adults” Question becomes, Does “Two Adults” compound itself to 3 or more.
We know anti-polygamy laws discriminate upon orientation so orientation is a non issue. We also know procreation itself can be regulated (first cousin marriage). The States interest then boils down to the benefit package and the question, should one State allow polygamy do the other States have to recognise it.
@Monte “That State interest is, as always, the offspring by natural procreation limited to 1 man 1 woman”
Why is that the state interest?
Why ‘offspring by natural procreation’. Why not by what ever method of procreation citizens find suitable and technically feasible?
Why ‘limited to 1 man and 1 woman’. Why not limited only to citizens who choose to commit to the essential duty of parenting.
I am sure readers can think of other reasonable formulations.
Perhaps there are other readers who, like me, find that the more the state interest is explained the more it sounds like the assumptions and prejudices of the status quo.
“Has the Court concluded that the perceived social harm of polygamy is a ‘legitimate concern of government,’ and the perceived social harm of homosexuality is not?”
In re homosexuality, that is de facto the finding of the Court in Lawrence: the Constitutional liberty interests of the individual outweigh any other rationale for governmental interference with consensual sexual acts. Does the perceived social harm of polygamy rise to the level of a “legitimate concern of government” or will the liberty interests of individuals trump any of those concerns? That’s what is at issue in the current case at bar.
Problem with Romer v Evans. , Romer supports polygamy
“remains to be explained how §501 of the Idaho Revised Statutes was not an “impermissible targeting” of polygamists, but (the much more mild) Amendment 2 is an “impermissible targeting” of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a “legitimate concern of government,” and the perceived social harm of homosexuality is not?”
Marriage equality is an economic issue; there are about two dozen economic advantages to marriage that a “civil union” couple cannot now benefit from. There are also other advantages (social and legal) to marriage.
But let’s look at the polygamy issue from the economic viewpoint. If a guy has children with seven women but only one of the seven is his legal wife, and the other six mothers are single-parent households for tax purposes, census purposes, and entitlements, what are the economic ramifications?
If a man has a family consisting of seven wives and 19 children, and yet his taxable income is under $100,000/year, and the women do not work outside the home, and two of the children are disabled, and one of the wives becomes disabled during the minority of some of the children, what economic benefits does THIS family get from the state and from the federal government? What about Medicare, Medicaid, and Social Security? Will all seven wives be able to collect widow benefits? What’s the deal here?
If one out of the seven wives divorces the husband, will a custody battle that might result from that divorce involve the Division of Children’s Services possibly getting involved in the other 18 children’s lives? What will this look like?
On the other hand, if a man has one wife and six other women living with him WITH their children and those children are HIS CHILDREN TOO, will the six other women have to declare half of the man’s income on their federal tax returns? On the six other women’s applications for food stamps and Medicaid, will they have to declare part of the man’s income because they live in his house?
QUOTE “Consenting adults can live as they want to . Its called freedom.”
TA DA!!!
But careful how you bandy that freedom around, our country is getting LESS FREE everyday….
Consenting adults can live as they want to . Its called freedom.
Only one mutineer was still alive along with nine Tahitian women..
http://en.wikipedia.org/wiki/Fletcher_Christian