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
I understand Lawrence just fine and your attempts at false equivalency are manifest, David. Someone says, “Homo!” and you yell “Pederast! Dog-humper!” as if Pavlov himself rang your bell.
If you don’t like people pointing out your false equivalencies?
Maybe you shouldn’t make them.
‘It is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.’
Begs the question: What is the historical deeply rooted plain meaning of Monogamy . .
The plain meaning of the term ‘marry,’ as it is used in the bigamy statute, “The state of a man who has two wives, or of a woman who has two husbands, living at the same time” supports the conclusion that ‘Marry’ encompasses alone, one of each gender, male and female.
However as the case illustrates, The Fourteenth Amendment expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due
process of law’ is provided. Depriving the citizen, married or not, the free exercise to co-habit, to ban the speech of ‘purport to marry’ with the unmarried violates the concept of ones free ‘liberty’
Elaine. The article cites the past belief vs the current (at the time of publication) reality. Unless you cite something authoritative and more recent than the Deseret News article, you’re merely engaging in “last wordism.”
You are making the false equivalence between consensual homosexual sex and non-consensual pederasty or bestiality, David.
That you proclaim you aren’t is irrelevant to you making the false equivalence in your assertions.
Gene H wrote: “You are making the false equivalence between consensual homosexual sex and non-consensual pederasty or bestiality, David.”
No, you cannot show where I ever made any such equivalency argument. You apparently do not understand the arguments of Professor Turley vis-a-vis “Lawrence v. Texas.”
“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.”
Sure but …
Canada 1969 did the same thing regarding the criminalization of homosexuality. Then Canadian Prime Minister Pierre Trudeau stated that “the government has no place in the bedrooms of the nations”. Now Canada legally authorized SSM only 35 years later but the Utah decision which is analagous to the 1969 Canadian decision will ultimatety lead to the same recognition of poligamy not only because the arguments against poligamy are just as legally invalid as those that were against SSM, but that the pace of social change today is MUCH faster than it was in 1969 anywhere in the world. IOW Friday’s decision in Utah is instructive to American Courts on how decriminazing conduct can lead to its legal recognition, or else the situation regarding states which recently legalized marijuana consumption can. Legal precedent also exists in “spirit of the law” decisions such as this one here.
The judge here is right and I myself have been making the same argument for a while now. The very arguments that fell prior to SSM becoming law in Canada, South Africa, France, Argentina and a host of other western states are the same arguments which stand in the way of poligamy today and are just as invalid.
Fact is where consenting adults want to live together in a certain arrangement they should be allowed to do so. Fact is if marriage is a mere contract as gay rights advocates claimed then as we all know a contract can involve more than two parties as well. As for arguments siting that marriage wasn’t meant for more than two persons, I mean really? Was marriage meant for gay people either? Lets not forget that Belgium and the Netherlands which are the first two nations and cultures to legalize and recognize gay marriage did so in 2001 ONLY! So its a little rich for gays and their advocates to start saying “there goes the neighbourhood” when the same was being said about them and STILL is being said about them today.
The simple fact is we’ve changed the opposite sex requirement for marriage so as to include gay people hence there is absolutely no reason why we can’t amend the definition again so as to change the two person requirement thereby allowing more than two to enter into marriage. Finally for those who site child and spousal abuse as being “prevalent” in poligamous relationships, again its a bad argument. The same “prevalence” could be had for poor couples or couples of certain ethnicities where abuse is more rampant, besides we’re talking about rights here and rights are never denied people simply because they belong to a class of people with a certain “prevalence.”
Nick Curran wrote: “Fact is if marriage is a mere contract as gay rights advocates claimed then as we all know a contract can involve more than two parties as well.”
Good point. Marriage is not just a contract. It defines a family relationship and the duties and obligations that go along with that relationship.
RWL,
The allegations of jurisdiction in the complaint are:
(Complaint, paragraph #14).
RWL,
The statutes for federal court jurisdiction are here.
Dredd,
Sometimes, I am not clear and concise. I will try again.
Regarding Prof. JT’s case, I asserted that the Federal District Court Judge made an error in certifying this case as a federal (civil rights/civil liberties) issue, when clearly it is a states’ rights issue. Therefore, I believe that either the Federal Appeals Court or the US Supreme Court will REVERSE AND REMAND this case to the state courts of Utah. Both federal courts have the power to do this.
You didn’t provide me with any evidence, stating that either the federal appeals or us supreme court do not have the power to do this.
Hence, it is not a matter of whether they can do this, but when (or if) they will do this.
Prof. JT knows this, and he also knows that his clients circumvented the law by cohabitating
RWL 1, December 16, 2013 at 1:51 am
Dredd,
The US Supreme Court, Federal Appeals or District Court can remand a case to a state court, even if the case was originally filed in a federal court.
Please provide me a law, rule, or regulation stating other wise. Please provide me a case and/or law, stating that the US Supreme Court cannot remand a case to a state court, even if the case was originally filed in a federal (District) Court.
================================
In discussing where the cohabitation-as-a-crime case is going, you asserted that the Supreme Court and/or Federal Circuit Courts of Appeal have jurisdiction to remand this case (which was filed in the Federal District Court of Utah) to a state court.
The one alleging jurisdiction has the burden of proving that jurisdiction.
Thus, you have the burden of proof and you must provide a case that so holds.
There aren’t any.
In this case the federal district court found that it has original jurisdiction of the case.
Thus, if an appeal is perfected by the defendants it will go next to the Federal Court of Appeals for the Tenth Circuit.
This case was not filed in state court then properly removed to the Federal district court.
If it had been properly filed in state court and properly removed because of a federal question issue, then the District Court could have taken jurisdiction of concurrent state issues, or not have.
The issues in this case involved federal questions, not state law questions in pleadings filed in state court, thus there is no concurrent removal jurisdiction of any state law issue.
Had the case been brought in state court, the plaintiffs losing and the defendants winning, the case could never be taken next to a federal district court to try to get a different decision.
That is because of the “Rooker-Feldman doctrine” (District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983), Rooker v. Fidelity Trust Co. – 263 U.S. 413 (1923)).
The top of the food chain in this case is the U.S. Supreme Court, and the bottom of the food chain is the federal district court in which the case was filed.
No state court is anywhere in the food chain.
Hugh,
I think you’re the one who’s “mything” something!
*************************
Hugh McBryde
1, December 15, 2013 at 8:43 pm
To back up my refutation of Elaine, I offer the following:
“The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”
From an article by James Thalman in the Deseret News:
http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html
*************************
Elaine M.
1, December 15, 2013 at 10:35 pm
Hugh McBryde
1, December 15, 2013 at 8:43 pm
To back up my refutation of Elaine, I offer the following:
“The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”
From an article by James Thalman in the Deseret News:
http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html
*****
Hugh,
From the Deseret News article that you provided a link to:
The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance. There are just more than 200 receiving federal food stamps, and there are 63 children enrolled in the joint state and federal Children’s Health Insurance Program. The newspaper also reports that 283 residents are covered by Medicaid, the government medical insurance plan for the poor.
The splinter group, which actively seeks the least possible involvement with government — local zoning ordinances the most notable exception — has had a history in other states of using whatever financial supplements provided by the government.
Six years ago, the Utah Attorney General’s Office reported that between 65 and 80 percent of the residents of polygamous families in Colorado City, Ariz., and Hildale, Utah, were on food stamps.
*************************
Hugh McBryde 1, December 16, 2013 at 12:03 am
Link please Elaine.
*************************
Elaine M. 1, December 16, 2013 at 12:10 am
Hugh McBryde
1, December 16, 2013 at 12:03 am
Link please Elaine.
*****
I provided the link in my comment to you. Here it is again:
http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html
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Hugh McBryde
1, December 16, 2013 at 3:49 am
Elaine, you’ve now provided TWO links to articles that are older than the one I linked to, so LINK PLEASE. You’re perpetuating a myth.
*************************
Hugh McBryde
1, December 16, 2013 at 3:52 am
Scuse, but you provided a link to the SAME article I cited, and then one much older.
Scuse, but you provided a link to the SAME article I cited, and then one much older.
Elaine, you’ve now provided TWO links to articles that are older than the one I linked to, so LINK PLEASE. You’re perpetuating a myth.
Mike A: “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.”
I read the document, and you are right. It is too verbose. However, someone should’ve interpreted this decision in laymen’s terms. Hence, I will try (please correct me if I am wrong):
I can have all 5 of my childrens’ mothers and our children living under my roof, as long as I am not violating the local and state housing codes, and not physically and mentally harming my children’s mother and our children? However, I can only legally marry one of them?
IMHO, they (plural families) are circumventing Utah’s state law by cohabitating? I thought that it is illegal to circumvent a law? Or is it difficult to prove in court?
Elaine does have a point in her articles about public assistance. The Judge refuse to acknowledge the ability to financially support the ‘plural family’ with or without public assistance. In other words, I don’t have to work and neither does my children’s mothers: the state will financially provide for them (free health insurance anyone?).
Side note: Thanks to the O’Bama Administration, the work requirement is removed, as a requirement to continue to recieve public assistance, from Clinton’s Welfare Reform Act of 1997.
RWL: “Side note: Thanks to the O’Bama Administration, the work requirement is removed, as a requirement to continue to recieve public assistance, from Clinton’s Welfare Reform Act of 1997.”
Not true. Not even close. I wish you people would stop with the constant lies. There is plenty to criticize, without making stuff up.
Juliet: “Not True. Not even close…..”
Really? Please read the following:
http://www.factcheck.org/2012/08/does-obamas-plan-gut-welfare-reform/
“Under the new policy, states can now seek a federal waiver from work-participation rules that, among other things, require welfare recipients to engage in one of 12 specific “work activities,” such as job training. But, in exchange, states must develop a plan that would provide a “more efficient or effective means to promote employment,” which may or may not include some or all of the same work activities. States also must submit an “evaluation plan” that includes “performance measures” that must be met — or the waiver could be revoked.
Ron Haskins, a former Republican House committee aide who was instrumental in the 1996 overhaul of the welfare program, told us the Obama administration should not have unilaterally changed the work-requirement rules. But Haskins said the Romney claim that Obama’s plan will “gut welfare reform” is “very misleading.”
“I do not think it ends welfare reform or strongly undermines welfare reform,” said Haskins, co-director of the Brookings Institution’s Center on Children and Families. “Each state has to say what they will do and how that reform … will either increase employment or lead to better employment” of recipients.
The Obama policy responds to state officials who say they can improve job placement and retention if freed from the time-consuming process of documenting and verifying that recipients are engaged in those work activities.
“In times of reduced funding, waivers may be the best method to allow states to find effective and efficient approaches to assist the unemployed to find and keep work,” the Utah Department of Workforce Services wrote to federal welfare officials last year.”
Question(s): If the federal government is unable to create jobs, force the private sector to create decent paying jobs by going after their overseas tax havens, or provide enough incentives to encourage indviduals to go back to work, or incentives to encourage 55 year olds to retire early, do you actually think the states can do a better job?
Do you want to make a guess pertaining to which state(s) applied for the waiver? You guessed it: Utah and Nevada.
RWL: You clearly have reading comprehension problems. Are you trying to make my argument for me? Two Republican governors asked for waivers to substitute other substantive activities for the work requirement. That’s not even in the same universe with the Obama administration gutting the welfare work requirement.
Juliet N.,
This would’ve been an interesting discussion. However, I see that you have some growing up to do.
Dredd,
The US Supreme Court, Federal Appeals or District Court can remand a case to a state court, even if the case was originally filed in a federal court.
Please provide me a law, rule, or regulation stating other wise. Please provide me a case and/or law, stating that the US Supreme Court cannot remand a case to a state court, even if the case was originally filed in a federal (District) Court.
Hugh McBryde
1, December 16, 2013 at 12:03 am
Link please Elaine.
*****
I provided the link in my comment to you. Here it is again:
http://www.deseretnews.com/article/700226972/Children-eligible-for-welfare.html
Link please Elaine.
Gene H., thank you for removing my comments from the spam filter. Comments about Professor Turley’s censorship policies are hereby retracted. I’m new to wordpress and didn’t realize that some posts often get “lost.”
Elaine and David: do you have any ideas of how we can fight this? I’ve never been politically active before but I feel very strongly about this issue and would like to get involved. I just don’t know how.