A Moral Victory: The Sister Wives Case And The Rejection of State Morality Codes

ad611-sister-wives-season-4Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.

There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.

There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.

The decision this month by a federal court striking down the criminalization of polygamy in Utah was met with a mix of rejoicing and rage. What was an emancipating decision for thousands of plural families was denounced as the final descent into a moral abyss by others.

Former senator Rick Santorum was among the social conservatives trying to claim the moral high ground. He tweeted on Sunday: “Some times I hate it when what I predict comes true” — referring to his 2003 claim that legalizing “consensual sex within your home” would lead to the legalization of polygamy and “undermine the fabric of our society.” (On Wednesday, with no apparent sense of self-contradiction, he expressed outrage over the removal of a Nativity scene at a South Carolina military base, tweeting: “Our Constitution protects free exercise of religion. No govt entity/official has the right to limit that.”)It’s true that the Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.

In the Utah case, I was the lead counsel for the Browns, the polygamous family featured in the TLC reality program “Sister Wives.” They are members of the Apostolic United Brethren Church, and they have one marriage license and three “spiritual” marriages among them. After the first episode of “Sister Wives” aired, state prosecutors threatened to bring charges under a Utah law that made it a crime when a married person “purports to marry another person or cohabits with another person.” The Browns were under investigation for two years and were publicly called felons before they took prosecutors to court in a challenge to the constitutionality of the law.

The case was never about the recognition of multiple marriages or the acceptance of the religious values underlying this plural family. It was about the right of consenting adults to make decisions for themselves and their families. Judge Clark Waddoups, a conservative George W. Bush appointee,ruled that the criminalization of cohabitation clearly violated the due process clause and the free exercise clause of the United States Constitution.

In doing so, he departed from the prevailing precedent: the Supreme Court’s opinion inReynolds v. United States , which upheld a ban on polygamy in 1879. Waddoups wrote that courts today are “less inclined to allow majoritarian coercion of unpopular or disliked minority groups, especially when blatant racism . . . religious prejudice, or some other constitutionally suspect motivation, can be discovered behind such legislation.”

Indeed, in Reynolds, religious and racial prejudice were vividly on display. The court unleashed a tirade of indignation and condemnation, stating, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Just a few years later, the Supreme Court also upheld the criminalization of mixed-race relations in Pace v. Alabama .

The idea that polygamy was a “barbarous practice” and contrary to democratic principles drove the demand in the late 1880s and ’90s that Utah outlaw it as a condition of statehood. And in Mormon Church v. United States (1890), the Supreme Court labeled polygamy as “abhorrent to the sentiments and feelings of the civilized world.”

The stigma attached to polygamy continued to distort legal analysis into this century. As recently as 2006, Utah Justice Ronald Nehring began his opinion in a ruling upholding the criminalization of polygamy by lamenting, “No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind Utah will forever be shackled to the practice of polygamy.” Nehring frankly admitted that this hostility “has been present in my consciousness, and I suspect has been a brooding presence . . . in the minds of my colleagues, from the moment we opened the parties’ briefs.” Rather than overcome that prejudice, Nehring not only yielded to it but warned any Utah judge of the peril of being the first to recognize the rights of polygamists: “I have not been alone in speculating what the consequences might be were the highest court in the State of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection.”

Well, it wasn’t. A federal judge in Utah assumed that burden. Gov. Gary Herbert objected to the court making “decisions on social issues.” (He has not yet announced an appeal.) Waddoups, however, was not dictating a decision on a social issue but rather saying that governments could not impose a single version of morality. He limited prosecution under Utah’s anti-polygamy law to cases of bigamy, where someone acquires more than one marriage license — which is an offense more common to monogamous couples, who care about state recognition, than polygamists, who care about spiritual recognition.

Across the country, the era of morality codes is coming to an inglorious end. This year, the Supreme Court struck down part of the Defense of Marriage Act barring the federal recognition of same-sex marriage. And this week, the New Mexico Supreme Court and another federal judge in Utah struck down the ban on same-sex marriage in those states — bringing the number to 18 states (plus the District of Columbia) where same-sex couples can marry. Meanwhile, Virginia recently repealed its 1877 cohabitation law and Colorado replealed a criminal adultery law from the 1850s — both relics of a time when states used their criminal codes to force citizens to comply with the religious values of their neighbors.

Most states have wisely turned away from absurd laws criminalizing masturbation and fornication. Obscenity laws have also been curtailed by the Supreme Court in deference to the First Amendment.

Still rightly on the books are laws against bestiality, which involves an obvious lack of consent as well as manifest harm. Likewise, incest bans are based on claims of medical, not moral, harm.

Once any crimes or abuses are stripped away in cases like the Browns’, what remains is religious animus. Yet, polygamy is widely practiced around the world by millions of families and was condoned by every major religion — from Judaism to Christianity to Islam — at one time. While plural families are called polygamists in our popular lexicon, “polygamy” actually refers to a broad array of plural relationships, from polygyny (one husband and multiple wives, like the Browns) to polyandry (a single wife and multiple husbands) to polyamory (couples who reject the exclusivity of sexual relations). The vast majority of these families are based on consenting relations among adults without abusive or criminal histories.

Critics often ignore these other plural relationships (and even polygynists like the Browns) in favor of a stereotype of “compound polygamists,” living in remote walled communities where women appear captive and molestation flourishes. It is Warren Jeffs, not Kody Brown, whom critics want to invoke in debating decriminalization — a sinister figure in a secluded compound where women wear prairie outfits and hairdos from the 19th century.

Obviously, there will always be abusers like Jeffs among polygamists — just as there are abusers among monogamists. However, it is no more persuasive to criminalize all plural relationships because of a small number of abusive individuals than it would be logical to outlaw monogamy based on the convicted spouse- and child-abusers in conventional marriages.

One of the great ironies about the focus on compound polygamists is the circular logic of criminalization. The government first declared polygamists felons and then pointed to their hiding as evidence of their guilt. But decriminalization will allow these families to be plural, open and law-abiding as they reintegrate into society.

In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and lead counsel in the “Sister Wives” polygamy case.

Washington Post (Sunday) December 22, 2013

1,098 thoughts on “A Moral Victory: The Sister Wives Case And The Rejection of State Morality Codes”

  1. Sorry, Dale, but JT was correct. Polygamy is any marriage involving more than two people. Within Polygamy there are Polygyny – one man and two or more women and Polyandre – on woman and two or more men.

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  4. Bron: How are they supposed to know if their cold or flu is JUST a cold or flu, and not life-threatening pneumonia?

    Your restriction is unreasonable. You are trying to save a dime out of selfishness. Even less than a dime, in a literal sense.

  5. Tony C:

    “Bron says: and they could not be seen at the emergency room.”

    I should have included they need to have insurance and the treatment I am talking about is for non-life threatening illness like colds, the flu [in most cases], anything that could be treated at an urgent care facility.

    I am not talking about car accidents or stroke victims, etc.

  6. **Mike was successful when he was able to prove the state was laying out millions of unreimbursed dollars taking care of sick and dying smokers, and the state did NOT have a choice in the matter.

    When an uninsured or underinsured person is taken care of at a hospital, somebody has to pay for it. Accidents and severe illness can strike anyone at any time. By that time it is too late. **

    As is the case for everything. What kind & amount of govt service is necessary? Where does the funding come from to pay for the service?

    With tobacco, do as is done with gasoline/highway funding & add the healthcare cost to the product through out it’s production.

    1. A hospital or government has no ethical duty to care for the sick. Doctors do however take an oath to care for all.

      With smoking, it’s like suicide, just slower. Those that do smoke, know the risk, yet they continue the habit, believing that others are ethically bound to care for them. They end up dying slowly, costing others, rather than a suicide that ends quickly and does not cost very much.

      I recently had a very interesting case. An Attorney and long time friend of my father, both an alcoholic and tobacco addict, called out of the blue, asking for assistance. He had lost his apartment to foreclosure and his life long business partner which he relied on for income, had passed away. He had already stayed with me prior to going to New Mexico and ended up back in Florida. His phone call sent chills, as I knew he was now homeless, broke and unhealthy. His feet were so infected that he needed hospitalization (ala the US government) for over 9 weeks (antibiotics) total and had a toe removed. He had asked me to bring him a couple of things, cigarettes and Oreo Cookies. The minute he got out of the hospital, he went strait to the local tavern.

      What would you have done with him when he got out? I don’t have the resources or real desire to care for him. I’m already caring for a disabled brother that takes a great deal of my time.

  7. DavidM says: Everybody thinks they have a good reason when they are intransigent. When we demonize people for it, it only makes the intransigence stronger.

    I don’t think that makes sense. Intransigence is an absolute. It cannot get stronger. Demonizing people for it cannot make it stronger, it can only make it weaker by embarrassing them or, for the sociopaths, making them worry about losing their power or money. If the sociopaths take pride in their demonization or laugh at it, so what? They were intransigent to begin with, they remain intransigent, and perhaps the non-sociopathic part of their support will be weakened by public condemnation.

  8. David,
    I don’t recall you saying anything about the wars in Afghanistan and Iraq, but suspect we are on the same page regarding whether we ought to get out and stop spending lives and treasure there. Yet, neither of us have any say at all, in that when we fill out that Form 1040 every year, we get no boxes to check what the money can be used for. It goes to the general fund, to be dispersed on the projects our elected representatives vote for. Health care should no different from any other kind of social protection, whether it is bridge inspections and repair to law enforcement.

    As for signing up being voluntary, that only works in theory. Here is a real world example. Mississippi Attorney General Mike Moore realized the state was spending an unconscionable amount of money providing health care for smoking related illnesses. Mike was the one who came up with the way in which big tobacco could be sued successfully. The previous defense by tobacco was that smoking was a choice. Mike was successful when he was able to prove the state was laying out millions of unreimbursed dollars taking care of sick and dying smokers, and the state did NOT have a choice in the matter.

    When an uninsured or underinsured person is taken care of at a hospital, somebody has to pay for it. Accidents and severe illness can strike anyone at any time. By that time it is too late.

  9. **davidm2575 1, January 3, 2014 at 5:03 pm

    OS wrote: **

    Yes, I can agree with parts of what both of you wrote.

    My biggest demand is that the States/Feds write the laws/regs, that prevent monopolies/set up as public non-profit utilities & set up oversight/enforcement, but the govts are not directly involved between the patients, doc, hospitals & clients.

    The immediate concern is if those advisers I’m hearing are correct that Obamacare was the trigger that ‘s bring us rapidly into an economic collapse.

    Many have been claiming the big one is coming for years. It reminds me of the boy who cried wolf & those predicting Jesus’s return.

  10. DavidM: I am a realist; I see no problem with locking the door and setting the alarms and being prepared for self defense. I invite people into my home frequently, it doesn’t mean we should leave the door standing open.

    I would close the borders on the grounds of terrorism alone; not to mention other forms of smuggling (sex slaves, drugs, weapons, other illicit products). I know drug smugglers have frikkin’ full military submarines now, and can transport drugs by motorized rubber rafts under dead of night, steering by camera and GPS coordinates to their pickup agents on the shore. Can you do the same thing with the components of a nuclear weapon? I don’t know, but I sure don’t see why not.

    To me, stopping illegal immigration is a side benefit. Legal immigration? Let people in. (Keep products out!)

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