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
RWL 1, December 14, 2013 at 7:59 pm
Dredd: Forgot to add the website
… Remand_(court_procedure) …
Here is another incident in which the Supreme Courts may remand a case to the State Courts:
… ehow…
==================================
Like I said, this is a federal case.
It was filed in the Federal District Court.
It will not ever, under any circumstances, be remanded to a state court.
And I will add, if you ever litigate in a trial court, appellate court, or the Supreme Court, do not ever quote ehow as authority.
It would be like Slim Pickens (@ Dr. Strangelove) riding the nuclear bomb down yelling ehowwwwweee just before the mushroom of reality sent him back into the atomosphere.
RWL 1, December 14, 2013 at 7:56 pm
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:
…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.
…
=============================
Like I said, this is a federal case.
It was filed in the Federal District Court.
It will not ever, under any circumstances, be remanded to a state court.
MK,
I didn’t realize citing a spot on relevant precedent was propaganda. Did you learn that a Fred’s Mobile Law School in a van down by the river?
Not to mention I fail to see how a general polygamy challenge would be able to survive Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). It’s a narrow ruling here as you note.
Supreme Court rulings can’t be overturned or chipped away at? News to me.
Stop the lying and propagandizing. You’re not fooling anyone.
Many of the comments on this thread reflect that the writers have not actually read the decision. The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional.
We did read the article and we do know that. We also know that this is simply the first step, and that taxpayer-funded, radical Marxist ideologues like Professor Turley will not stop until they get full legalization of polygamy–and legalization of incestuous and pedophile relationships after that. There will be more court cases until they get what they want, just as they did with gay marriage.
Your lot have already lied when you assured us that gay marriage wouldn’t lead to legalization of polygamy. Do you think you have any credibility whatsoever with us NOW?
It is now clear that the evidence and findings of fact in the recent Canadian BC Justice Bauman decision was nothing more than vile animus, bigotry and prejudice toward those who practice polygamy to wit:
Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.
Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.
Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.
The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.
Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.
Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.
Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.
The harms against women include: exploitation; commodification; social isolation; the inevitable favouritism of some women and deprecation of others within the household; discrimination; and, impoverishment.
The harms against children include: the negative impacts on their development caused by discord, violence and exploitation in the marital home; competition between mothers and siblings for the limited attention of the father; diminishment of the democratic citizenship capabilities of children as a result of being raised by mothers deprived of their basic rights; impoverishment; and, violation of their fundamental dignity.
The harms against men include: the unequal distribution of spouses and related ostracism of younger men forced to compete for a scarcer supply of women; the creation of a false appetite for patriarchy; inflammation of male lust; and deprivation of the essential bond of mutuality that is unique to the marital institution.
Finally, the harms to society that flow from polygamy include: threats to the social order and a greater need for social supports as women lacking education and opportunity to enhance themselves, as well as their children, find themselves impoverished upon divorce or the death of their husbands; harms to good citizenship; threats to political stability; and the undermining of human dignity and equality.
The evidence demonstrates that polygamy is associated with very substantial harms. The prevention of these harms is salutary. Some of the beneficial effects of the ongoing prohibition of polygamy include: a) Increased per-child parental investment, with the expected increase in the mental and physical wellbeing of children overall;
b) Reduced social strife, conflict and crime expected from more uneven distribution of the opportunity to marry;
c) Reduced average age gaps between husbands and wives, increasing equality in marriages;
d) Reduction in sexual predation on young girls;
e) Reducing incentives for male control over women and their reproductive capacity.
Mike A.,
Not to mention I fail to see how a general polygamy challenge would be able to survive Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). It’s a narrow ruling here as you note.
Many of the comments on this thread reflect that the writers have not actually read the decision. The Court did not legalize polygamous marriages. It did not rule that Utah’s ban on multiple marriage is unconstitutional. What it struck down was the criminalization of cohabitation between married and unmarried adults. In other words, the decision does not provide precedent for the recognition of polygamous marriage, the immigration of harems, incestuous relationships or the abuse of women and children. It falls completely within the constitutional rationale of Lawrence v. Texas. My only criticism is that the Court did not really need 90 pages to get where it wanted to go.
How many spouses will each Third World immigrant be legally able to import into our country under family reunification laws now? 10? 20? 1000? And who will support these millions of imported Third World spouses? U.S. taxpayers?
We would be shortly living in either a Third World Marxist dictatorship or an Islamic state, all without firing a shot.
John Esposito of Georgetown U. was given $30 million by a Saudi oil sheikh to make an academic case for Islamic law in the U.S. Perhaps the same sheikh has been waving a $30 million check under Turley’s nose too? Or maybe the Muslim Brotherhood?
Those who say this “victory” for “civil rights” will not affect anybody but a few thousand Mormon polygamists are lying through their teeth.
Just as they lied when they said that gay marriage would not lead to the legalization of polygamy.
Sounds like the Canadian ruling must have been all “bunk”
“Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.”
I meant to say that I suspect I have read more widely than most on polygamy with the exception of scholars of the subject themselves.
I understand the basis for the ruling and your devotion, legally, to winning the case. However, I believe it to be another case where an abstraction trumps the actual well-being of women, children, and other men, similar to the belief in the evil of censorship of certain forms of truly awful pornography. I have more than most persons I suspect read a number of books on the subject, other than scholars of the subject themselves, and my reading doesn’t lead me to believe polygamy is a public good.
While I have long admired Mr Turley and his intellect, if he’s having trouble hiring an editor and/or a proof reader I hereby volunteer. The first sentence of this post is shameful, at best, and embarrassing for all, especially we readers who value language and its uses to communicate. And while we’re at it, get a picture that’s not 20 years old, this is not a hook up site where you’re trying to reel in potential “dates”. Maybe a decent website overhaul is in order. I know a company
are you kidding me?? this is wrong!!! sister wives is just a way for him to cheat and have an open affair, the kids need to be taken from the home and put into real homes with moral and God based values!! THIS IS JUST SICK AND SHAME ON YOU JUDGE!!!!!!!!
How are other social issues such as health insurance, social security and other retirement benefits to be addressed in extended (polygamist) families? Seems like, if only one wife is a legal one, the others (and worse still, the children involved) will be left to fend for themselves when Daddy kicks it or applies to collect SS benefits. I don’t see how many complex issues regarding polygamy will benefit society as a whole. If the man in a polygamist relationship is not wealthy enough to provide for all his wives and children should the rest of society pick up the tab? As a multiple pet owner it is important to make every one of them fell wanted WHICH REQUIRES TIME. How can one man provide the attention 31 children WILL need. Oh, that’s right! The women can take care of that so that he’ll be free to make more babies with possibly even more wives.
Frankly, the human race is in no danger of extinction from not making enough children.
Congratulations to my friend Adam Alba for some able legal work on a thorny issue. I don’t know how this will sort out on appeal. However, some of the comments on this site seem to stem from some confusion. The question whether the Constitution protects how the Browns live is a very different one from the question whether the criminal conspiracies of the Kingstons and Warren Jeffs groups should be immune from prosecution. They should not be. Warren Jeffs is in prison (and should remain there) for deplorable acts that he committed under color of “religion,” but for him and his ilk it’s just an act; a means to maintain control of other people. Striking down parts of the anti-cohabitation statute is not at all the same thing as endorsing the child abuse and other illegal activities of the Jeffs and Kingstons. Also, contrary to MK’s assumptions, to my knowledge neither the Browns nor professor Turley, and DEFINITELY not Adam Alba, are “Marxists.” Any Marxist regime would have subjected all these people to firing squads long ago, or starved them to death the way Stalin did with the Kulaks in Ukraine.
MK,
Get a life and worry about how you are living and allow others to live as they would like and the world will keep revolving around the sun.