It 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
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?
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?)!
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.
Bravo! To each his/her own.
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.
Congratulations Mr. Turley. Well done, one and all. With prayers for your continued success.
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.”
Dredd: Forgot to add the website
http://en.wikipedia.org/wiki/Remand_(court_procedure)
Here is another incident in which the Supreme Courts may remand a case to the State Courts:
http://www.ehow.com/info_8382782_reasons-remand-state-court.html
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]”
NIce work sir.
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.
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.
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.
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.”)
Is Polygamy Really So Awful?
A new study shows that despite what you see on reality TV, plural marriage isn’t very good for society.
By Libby Copeland
1/30/12
http://www.slate.com/articles/double_x/doublex/2012/01/the_problem_with_polygamy.html
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.
“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.