Below 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.
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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
Bron,
The problem with that is that the subjective need not be (and often isn’t) rational or even based in reality. Morality is a subjective choice. Ethics are the dictate of objective reason. While some moral and ethical systems may share common goals, the law must be – to be effective and just long term – be based in the real. If you doubt this, look at the disastrous consequences of a legal system based primarily (sometimes solely) in moral dictates: theocracy.
Morality needs to be left in the home and the church (if you have one). If someone thinks something is immoral, then they can abstain, but they have no business forcing their morality on others. Others who may not share their sense of morality. For example, if you find homosexuality morally objectionable? Don’t practice it. However, on an ethical level, it is unethical to deprive others of their liberty in practicing consensual behavior because your subjective morality objects. Ethics, in contrast to moral, can be universally formalized and tested. They don’t rely upon subjective choice, but on objective standards and logical delineations of behavior based in observation. As a foundation for legalism, there is no question as to which is the proper foundation.
Somebody help me here. What’s the practical difference between the guy who has one marriage license and multiple, live-in partners (polygamy) and the same guy who tries to get marriage licenses for all of his partners (bigamy) so that all of his partners may share equally in whatever benefits the law allows (legitimization of children, inheritance rights, etc.)? Why is the former now legal, but the latter remains illegal?
Before anyone gets too crazy, I recognize that bigamy is usually committed for fraudulent ends. Please understand that bigamy in the above questions is meant to convey that all of the persons involved are aware of the circumstances of the purported marriages.
Fantastic win. The protection of an individual right is the most important thing a society can protect. However it is sad that we have to continuously fight various issues of unalienable rights out in the halls of our Capitals and courtrooms.
For me, being able to have multiple spouses is kind of greedy but my hat is off to anyone who can deal with more than one. The old joke about gay marriage, being that “every one should have the right to be just as miserable as any married couple is.
We tax the middle class 50% of their overall incomes and expect this policy to get them out of poverty. The right to keep ones own money and spend it as they see fit is perhaps more important to society than the right to have multiple spouses.
Until our society protects all individual rights, we will have no fabric of society, allowing the oligarchy of each generation to force their moral and social codes on the majority.
Will the Supreme Court in another 50 years flip flop on this issue as they have just done? We’ll there be those that attempt to continuously repeal Roe vs Wade? Will the countless number of tax and spending polices continue until the entire middle class is bankrupt. Will the next social policy be, to allow government to enter our homes and businesses and confiscate our property without due process? I know, the government already does this!!!!! and just another example why individual rights are so important for a civil society. If we allow one right to be usurped, does it not appear to all that it opens the door for the usurpation of others?
As a defender of individual rights, I am often attached by those who want to use force and coerce, police power on the majority into obeying their moral and social codes. To have a society where the protection of individual rights, is placed in the hands of a centrally controlled political system, just begs to have the rights of it’s citizens usurped. And if will do not protect all individual rights with equal force and vigor, those in power will continue to keep the majority in political and economic slavery. We cannot any longer allow politics to pick and choose which rights can be violated and which rights cannot. All rights must be considered unalienable and therefore inviolable and until we as a society agree that this is a truth, many in our society will continue to live in conflict and despair from the negative ramifications of our moral and social policies.
Gene H:
I dont think you can disconect the 4. The law is or should be based on a moral premise supported by reason.
For example our laws are based on the moral premise “Life, Liberty and the Pursuit of Happiness.” Our laws used to promote that moral premise; what was ethical was moral. Reason was the foundation of our founding morality and the law supported the original premise; a man’s life is his own and does not belong to the state.
Reason, morality, ethics and the law should be in harmony, reason should be used to determine what is moral, ethics and the law should be used to uphold morality.
Jonathan Turley sez: “Across the country, the era of morality codes is coming to an inglorious end.”
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This story and the comments started me thinking about the Mann Act. It has been used to go after child sexual exploitation offenders such as Jack Schaap and Brian David Mitchell. Rightly so on those cases.
However, there were a number of high profile cases that were clearly political prosecutions. Among the more notable Mann Act prosecutions was that of boxer Jack Johnson, Dr. William I. Thomas, Frank Lloyd Wright, and Charlie Chaplin.
What impact, if any, will this latest ruling have on the Mann Act?
Chuck,
Re: The Mann Act. The threat of Mann Act prosecution was used to get Governor of New York Elliot Spitzer to resign.
Jonathan,
Thank you for your efforts in the “Brown Case” and for this article that hits at a long term concern of mine. Every politician who runs on the basis of preventing sexual immorality is a fraud and a hypocrite. Humans, like all animals are sexual beings, but in our case aided by our greater sentience.
When it is not coercive or abusive, people should have the right to live the sex lives they desire without the interference of government. While the Republican Party, as exemplified by Santorum, has made sexual morality a political issue it can never be considered an issue by true conservatives or by true libertarians. The Democrats have in many instances been in favor of not legislating morality, but many “liberals” have publicly been on the fence lacking the courage to seem to go against religious moral strictures. President Obama’s “evolution” on the Gay marriage issue is a case in point. Political hypocrisy regarding sexuality created these impositions on individual rights made in the name of public morality. The proof of this hypocrisy is the many politicians who are against government intrusion on the private sector………….except when it comes to women’s and homosexual’s sexuality.
Throughout human history if one studies it closely the prevailing religious morality of a culture has had little to do with the actual sexual activity. Prosecution has almost always been selective and aimed at the lower classes.
When it has occurred to members of the more privileged classes it had more to do with some other offense of the powers that be, rather than the actual sexuality involved. See the case of Oscar Wilde.
Gene:
Completely agree on the distinction between law and morals. Just commenting on the origins of the law rather than its current use.
“isn’t all law a “Morality Code” of one description or another?”
Mespo/AY,
It can be, but it comes back to the discussion had here many times before. At its best, law is an ethical code based on objective standards rooted in reason instead of a moral code based on subjective beliefs. The distinction between ethics and morals is much more important than semantic when discussing the foundations of legalism.
Prof,
Thanks for the expansion on the ruling.
Dale 1, December 22, 2013 at 9:16 am
Johnathan,
An outstanding attorney you are. But your understanding of terms falls somewhat short. Polygamy is the condition of one man and more than one woman. Polyandry is the condition of one woman and more than one man, and bigamy is polygamy but with one man and only two women. The Browns understand this and refer to their situation not as polygamy, but spiritual polygamy, a form of faith based living founded on cohabitation, not the illegal procurement of multiple and still illegal licenses from the state. This confusion in your mind is disappointing.
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From Deseret News:
(Deseret News). “The Deseret News is a newspaper published in Salt Lake City, Utah, United States. It is Utah’s oldest continuously published daily newspaper …” (Wikipedia).
Who ya gonna call?
Great piece. I am curious about your assertion about that people in the 19th century were no more moral than we are. I have nothing but a love and studying of history to say that may be true, but tough to prove. I do know people were more neighborly then. Folks felt a moral obligation to help their neighbors, something that has almost become extinct in our culture. Mespo is great in showing the neighborly in people. I’m just saying that was the norm in the 1900’s and would tend to make me think those folks were more moral. Oh, they killed, robbed, raped, swindled, etc., particularly in the lawless west. They drank more than we do now. Opium and derivatives were abused. But, my money would be on they were generally more moral, not by a wide margin, but a discernible one.
Johnathan,
An outstanding attorney you are. But your understanding of terms falls somewhat short. Polygamy is the condition of one man and more than one woman. Polyandry is the condition of one woman and more than one man, and bigamy is polygamy but with one man and only two women. The Browns understand this and refer to their situation not as polygamy, but spiritual polygamy, a form of faith based living founded on cohabitation, not the illegal procurement of multiple and still illegal licenses from the state. This confusion in your mind is disappointing.
The history of polygamy largely involves male domination. Hopefully male domination is ending so don’t see much of a future for polygamy. The Utah decision on gay marriage was much more significant.
Mespo…. You got it…. Forcing folks to comply…. With what’s at the whim of the time…. Utah…. Allowed this before they were admitted to the union…. As the part of the Utah territory…. The women had the right to vote…..
Opposing polygamy doesn’t imply religious animus nor is it the same thing as opposing gay or same sex marriage (which I support). It simply looks at the fact that some people who have been involved in polygamous arrangements, those people being women in most cases, haves testified that their involvement in such arrangement was rarely consensual. It was forced upon them by “religious leaders” and that the punishment for refusal was heavy. I hate to disagree with you but when one is allowed to break the law because of one’s allegeld religious beliefs it starts a process that is not going to end well for certain segments of society, particularly women.
Congrats Professor but isn’t all law a “Morality Code” of one description or another?
Tony C. 1, December 22, 2013 at 6:56 am
JT says: Likewise, incest bans are based on claims of medical, not moral, harm.
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A person asked a Kentucky senator why so many Kentuckieans married their first cousins.
The senator replied “because they don’t have any close relatives.”
JT says: Likewise, incest bans are based on claims of medical, not moral, harm.
That is an assertion with which I disagree. An incest ban does not exclude relatives that cannot conceive, or indeed relatives of the same sex should same-sex marriage be legalized. Those relatives are banned from marriage, not because of any chance of medical harm; but because of morality. The majority of people find incest repugnant. Like me, they suspect incestual desire probably originated in power-abuse. But speaking logically, incest between consenting adults incapable of reproduction is no more likely to create medical harm than sex between unrelated consenting adults.
If JT is going to be logically consistent, a later paragraph applies. JT says: 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.
It is no more persuasive to criminalize all incestual 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.
(To be clear, I have no desire to commit incest and to my knowledge do not know any incestual couples. I am just pointing out that the same logic applies, and to the extent one thinks there is a logical hole in the incest argument, that logical hole must apply to the polygamy argument as well. And THAT said, I am in favor of JT’s legal win in this case.)
One section of the First Amendment gives religionists / spiritualists freedom to take their chosen path as they seek religious / spiritual truth, another part of the First Amendment protects them from “government guidance” during their religious / spiritual journey.
Sweet. Every time a bit of common sense prevails, a branch of the stupid tree falls off, hopefully to permanently rot.
A great article Professor that will hopefully resonate with many people to educate them on the true nuances of this landmark court decision. Many political types often distort the truth through the bully pulpit of their self declared moral high ground; making absurd claims of figuratively the doom of civilization if it is opposed or contradicted. All the while they cloud the issue with deceptive twisting of the real issues presented before the courts to make it seem those praying for relief of the injustices created by these and past politicians are the ones morally bankrupting what they consider the treasury of the politicians’ idealized fantasy world.
Now, the readers of the Washington Post can see for themselves the truths of your efforts, the courts, and the plight of the plaintiffs and their kin.