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
pete was saying you were fully committed to paranoia. I was just drawing an analogy to Breaking Bad. A great character, a sleazy PI, former cop, tells a great story about how if you want to get a job done, you can’t just go half way, it may even mean killing someone, but half measures never work. It’s just good natured ball busting mostly directed @ Breaking Bad fans and your idiosyncratic comment. I enjoy your humor and eclectic views.
Sorry Nick, I’m missing something & don’t understand.
**
oky
sometimes you take paranoia to a whole new level **
pete9999,
When one spends a lifetime career in building/land development those projects are exactly like getting married to those people.
(Sometimes hallway Sex! lol)
Doctors, Judges, Federal Prosecutors, Bankers, reformed hookers, everyone, they all put their pants on one leg at a time.
Oky saw the Breaking Bad episodes, Half Measures then Full Measures. He learned from Mike that half measures don’t work, you have to commit. Oky is, and will be, committed.
Bring it in even closer in today’s time, an older gentlemen is considering a back surgery to get rid of 24/7/365 daily pain, but he knows he has a big juicy Insurance policy so he’s going no where near those butchers because he knows they’ll likely intentionally set off an in hospital heart attack so those Docs will have the Insurance funds to supply their daughter’s drug habit & BMWs.
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oky
sometimes you take paranoia to a whole new level
It used to be it was small minded, religious fanatics who wanted to ban people, book, music, etc. Now it’s “progressives” obsessing on banning people and speech here. A secular religious ferocity.
Bob, Esq.,
We’ve been missing you, when did you get out of prison? 🙂
**How about the poor person who can’t get insurance, and goes without needed lifesaving surgery because they can’t even afford to go to the doctor to get their cancer diagnosed? **
OS,
Sorry, but that’s a rock in the Democratic Party’s Shoe.
“Insurance does not reduce risk, it increases it!”
IE: 2007-8 Wallst financial collapse, those were insurance products that blewup & are still blowing up. 25 trillion the 1st year, est about 5 x or more now. (Ya, the elephant in the rm most are still ignoring)
But for something most can relate to on the ground USA, without Insurance those estimated 500,000-1.5 million USA women wouldn’t not have been wrongly given unneeded hysterectomies.
It wreck many of their & their families lives forever because of increased Risk of Insurance.
Bring it in even closer in today’s time, an older gentlemen is considering a back surgery to get rid of 24/7/365 daily pain, but he knows he has a big juicy Insurance policy so he’s going no where near those butchers because he knows they’ll likely intentionally set off an in hospital heart attack so those Docs will have the Insurance funds to supply their daughter’s drug habit & BMWs.
What’s the solution, you tell me?
So, that crack suicide squad, did they represent the People’s Front of Judea or the Judean People’s Front?
**Or the woman who is pregnant and wants an abortion for personal reasons that are none of your business. **
OS,
Some would love to ban abortions.
A friend of mine was showing me the house he built for a Black Market abortion cleint. (Unknown to my friend at the time)
That Doc served time in prison over it.
Seems like then the price was up around $25,000.
But hey, the wealthy can still fly their kids to where ever for an abortion if made illegal here.
Apparently you don’t know what “democratic process” entails, David.
Garnering the support of allies isn’t sufficient. Democratic process relies on free and open elections. No one elected Lenin to be anything. He took the job. After him? Stalin consolidated power to be absolute ruler of the USSR. After Stalin? The head of state was appointed by the Communist Party. They didn’t have elections in Russia until 1990 and there is still some question as to about how “free and open” they are. If Lenin had been democratic? The first thing he’d have done was set up elections so the people could choose their own leader(s).
But he didn’t.
Nope.
Mike Spindell 1, December 27, 2013 at 4:59 pm
DavidM,
I don’t know you that well, but I know plenty of people that fit the description MikeS presented.
I’m a back door partner to one such person that I was forced to call down the thunder on 3 or 5 years ago. He’s containing himself now. Some thing we still actually agree on.
What he represents is the rock in the Republican party’s shoe that they have to throwing out.
Those concepts Mike lays out have been proven to enough people that they are no long acceptable to most of the populous.
Even Ok’s Repub Senator Tom Coburn has been forced to admit it publicly.
I don’t hate you, but we’ve here in the USA, as a people, have moved beyond that ole dogma of that type of oppression.
And yes, the Democratic party has a few rocks in their shoes that they need to throw out.
David,
How about the gay couple who want to get married? Or the woman who is pregnant and wants an abortion for personal reasons that are none of your business. Or the woman who does not want to be subservient to her husband or any other male on the planet? How about the transgender person who simply wants to use the bathroom? How about the poor person who can’t get insurance, and goes without needed lifesaving surgery because they can’t even afford to go to the doctor to get their cancer diagnosed?
Those are all issues on which you have weighed in multiple times with your bigotry.
You got yours, and to heck with the rest.
Also, there isn’t a difference between being created equal and therefor equal under the law and being equal. They are the same thing as it applies to legalism. There is a difference between created equal and equally created. The later for which you provide a fine example of – just not in the way I’m sure you think you do. It is either willful ignorance, a lack of self-awareness, or political malice trying to sugar coat the hate for one who holds your views to claim to be an egalitarian. It’s counter-factual by your own example, hypocritical and a really bad joke.
Gene H wrote: “It is either willful ignorance, a lack of self-awareness, or political malice trying to sugar coat the hate for one who holds your views to claim to be an egalitarian. It’s counter-factual by your own example, hypocritical and a really bad joke.”
Perhaps you lack awareness of the views of Thomas Jefferson, the man who penned those words, that it is self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. Jefferson recognized differences between blacks and whites, and between male and female, and he expressed those views in writing. You would be deriding him instead of me if he were here posting comments on this blog. You quote Jefferson’s words about all men being created equal, you even enshrine them, but you have little understanding of what they actually meant to the author who penned them. It must be quite disturbing to you that the author of these words “all men are created equal” was a slave owner who liked the idea of freeing slaves but thought it not possible because of their station in society. He wrote about both the superior and inferior aspects of the black race. Jefferson also did not think to give women the vote, and he also believed that property owners and the educated were the ones qualified to vote in governmental matters. I’m sure you will just go on about how Thomas Jefferson was not a true egalitarian, about how he was a hypocrite, or how he lacked self-awareness, or that he had political malice. You invent whatever denigration possible because logic and intellectual capacity are not on your side.
Let’s see.
Doesn’t want gays to be able to marry or enjoy the same contractual relationship as heteros? Check.
Thinks blacks are inferior? Check.
Thinks women should be subservient to men? Check.
Thinks the wealthier a person is, the more votes they should have? Check.
Sounds like a perfect summation of your previously advocated stands, David.
OS wrote: “A person who advocates limiting rights and privileges for gays, blacks, women, and people who are not well off sure as hell is not an egalitarian.”
This does not describe me. I believe all people are created equal and are therefore equal before the law. Their rights and opportunities are equal. But that does not mean that I believe all people are equal. There is a difference between being created equal and being equal. The felon in prison is not equal to you. His rights have been taken away.
David sez. “I am a true egalitarian…”
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Dave, I don’t think that word means what you think it means. Either you are ignorant of the etymology and definition of the word, or you are a bald faced liar.
A person who advocates limiting rights and privileges for gays, blacks, women, and people who are not well off sure as hell is not an egalitarian.
Try this on for size: “I am a true bigot….”
See how much better that fits?
OS wrote: “David sez. “I am a true egalitarian…” “Dave, I don’t think that word means what you think it means. Either you are ignorant of the etymology and definition of the word, or you are a bald faced liar. A person who advocates limiting rights and privileges for gays, blacks, women, and people who are not well off sure as hell is not an egalitarian.”
I have NEVER advocated limiting the rights of gays, blacks, women, and poor people. These are malicious lies perpetuated by you and other leaders on this blog to discredit me.
An egalitarian is someone who believes in the principle that all people are created equal and deserve equal rights and opportunities. An egalitarian believes in a society where all people are treated with respect and dignity, despite whatever station in life they hold. It is because I am an egalitarian that I have jumped to the defense of Skip. I am horrified at the utter disrespect and abuse heaped upon him that led him to express that he was leaving the blog. There was not a single word of contrition from any of you when that happened.
You see, a true egalitarian recognizes that everybody has different abilities and talents. He is not blind to differences, but rather he celebrates diversity. A true egalitarian does not denigrate someone whose education is less than their own. He helps that person have the same opportunities that he has had in life. He shares his knowledge and his benefit of education with others. If he finds someone illiterate, he does not mock and scorn that person. He teaches him to read.
What you guys do is create a class system in society that makes people unequal. You hate the wealthy and worship the poor. You hate the white man and adore the black man. You deplore manliness and elevate feminism. You mock virgins and glorify sexual liberation. You trash the religious and adulate the secularist. This is NOT egalitarianism. It is liberalism gone amuck.
I challenge you and anybody else to actually read what I have posted and not how others have characterized my posts. I have NEVER advocated limiting rights for any class of people. I have advocated for a classless society that while cognizant of the differences that exist in different groups of people, treats them all equally with respect and dignity. I have argued that there is nothing wrong with a football or basketball coach showing preferential hiring for blacks over whites. I have argued that same sex unions are distinctly different from opposite sex unions and so the laws concerning marriage should not destroy the traditional definition. I have advocated for laws that establish the rights and obligations that make sense for same sex unions without disturbing the unique relationship represented by opposite sex unions. It is your twisted mind that makes my unique position of advocacy for gay rights as something desiring to limit rights.
A similar situation exists with the issue of abortion. I have time and time again expressed that I do not believe like the pro-life groups that a person exists at the moment of conception. I believe that there are competing rights of the mother, rights of the father, and rights of the unborn. Nevertheless, because I believe in acknowledging the existence of a potential life and our duties and obligations in that regard, suddenly I am against the rights of women? Again, it is only your desire to create classes of people (which actually creates an unequal society) that causes you to stereotype me in order to judge me in the worst ways as being beneath you and unfit for your blog. Oh, you proclaim in words that you are egalitarian, but in action you are far, far away from being egalitarian. What you really want is a society where the privileges are reversed. You want to take away the privileges of certain groups and bestow favored treatment and privileges to those of your choosing. Anybody wealthy, successful, male, heterosexual or white will be denigrated and privileges removed and anybody poor, unsuccessful, female, homosexual or black will be given favored treatment and privileges. Oh, and if anybody lacks the education you have, they are fair game to be mocked and ridiculed. The way Skip has been treated is all the proof any objective person needs to see the truth of this.
That’s one man’s take on it. History shows otherwise, David. Lenin was still a communist in action, David, who didn’t come into power by democratic process but by revolutionary action. No one voted Lenin into office. He seized power by violence. I don’t care if he wrote the recipe for sugar cookies, that doesn’t make him the Pillsbury Doughboy in action. At least your appeal to authority wasn’t a fallacious appeal, just an appeal to someone who got it wrong. If you want to trace the genesis of market socialism? You really need to start with (and this is really going to get you) Adam Smith.
As for your second comment?
Well, it isn’t a lie. Plain and simple. You disclosed personally identifying information about me that I choose not to share in this forum and you did so without my permission and in violation of the policy of this blog. I don’t care where you got it.
And try to martyr yourself all you like.
The discussion of your unacceptable behavior is currently not working out in your benefit.
Gene H wrote: “Lenin was still a communist in action, David, who didn’t come into power by democratic process but by revolutionary action.”
He used both revolutionary action and the democratic process. You overlook the many organizations that voted for and joined his cause. His violence was more of necessity than desire. He ideally would have opted for something more purely democratic like Germany, but the situation in Russia did not allow for it. From an idealism standpoint, he was not much different from many on this blog, but from a practical standpoint, he had the fortitude and courage to fight violently for the goals he believed was best for the poor suffering working class.
“Who on Jonathan Turley’s blog better fits this definition of bigotry than”
DavidM,
Your comment that begins with this sentence has been deleted. You have violated one of the few rules we have on this blog and that is investigating and revealing personal information about anyone commenting, especially if they use their real names to comment. You don’t use your name do you, since there are many David M’s in this world. If you pull this crap again you will be banned and I have that from the highest authority on this blog. Make any arguments you want but do not violate this rule.
davidm2575 1, December 27, 2013 at 6:15 pm
My reply to Gene H about Lenin did not post. Have I been banned already, or is it snagged in WordPress?
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“Yes.”