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
I’m not fielding any personal questions on this topic currently.
“I’m also still basking in the glow of my “fake trip to Italy.” Those were some intelligent accusations!!”
Aw Nicky,
Lighten up I was just “ball bustin”. You know what “ball bustin” is don’t you? You’ve used it as an excuse many times and even claimed to be a master of it.
Seems to get under your skin though when others do it. Can’t take it?
“I’m not fielding any personal questions on this topic currently.”
I think that’s a good idea Nicky since they might reveal aspects of your personal views that may be at odds with what you’ve written here.
DavidM, Don’t answer questions, this isn’t a courtroom or interrogation room. Just find the evidence, if it hasn’t vanished already. I’m paying idealist forward, he taught me to always be myself, and how to deal w/ this elite Sloth Team 6.
Side note:
That post of concern DavidM reposted was almost word for word, the best I can recall, was posted on another thread within the last 3 months on this msg bb.
It looked to me just another waste of time reading & nothing GeneH would embarrassed by so I saw no need to save it/report it.
Just another standard type attack for some, that changes no ones opinion on anything.
Yes, I understand this dispute is about privacy policy on this msg bb, so even if we see something that should not have been posted in the 1st place we should not then repost it.
nick,
Who said davidm didn’t have a right to say what he wants/thinks? Disagreeing with someone and/or posting a counter-argument means you’re attempting to take away david’s right express himself???
davidm,
You disclosed personal information about Gene of which I–another guest blogger–had no knowledge. Can you tell us how you came by this information…and why you chose to post it in a comment on this blog?
“This is a classic setup by the henchmen, I’ve seen it before.”
Nicky,
The “Henchmen” you speak of were chosen by Professor Turley to be his guest bloggers. You speak of your respect for JT, but you must have little respect for his judgment if that is how you see us. Face it Nick, you came to this blog with a chip on your shoulder and when you found you lacked the skills to keep up you imagined it was a “cabal” against you, when in fact it was your own bad behavior that caused you to be rebuked. You got the message and you stopped behaving like an ass, while still retaining the right to believe as you please. You don’t like Gene or me because we can out think you. Now Elaine is a different story because not only can she out think you, but she is a woman and despite your protests to the contrary you have a “thing” about smart women.
“I believe you when you say you only said something you learned on this blog. Going back and finding it would be helpful but they’ll still act like a wolf pack.”
Gee Nick, you’re the PI and one would think you would want to help your friend out. I am a little confused by your constant defense of David and his positions though. You’ve talked of having many close friends who are Black. What do you think they’d think when David has written about their being inferior intellectually to Whites? What would your wife think about being subservient to your wishes. You have often mentioned that you support Gay rights such as marriage, so what do your Gay friends feel about David’s position?
But then you see David’s political positions are only points for discussion. His breaking the rule on investigating someones background and disclosing it is the issue at hand and perhaps you can “save” David by using your detective skills and finding the references he refers to……but don’t exist. As for your “escape” from being banned it was a rather close affair but somehow you managed to reform your ways and learned to behave civilly.
As to the differences between you and David….he doesn’t whine. In true Goebbels fashion he outright lies and denies. Then again you’re just a private dick, while David is a very skilled propagandist, but then so was Goebbels who ended up murdering his wife and children before blowing his brains out. I see in the far distant future a far more peaceful ending for David’s existence then Joseph’s, but David’s techniques are indeed those of his spiritual mentor.
DavidM, Assuming the evidence hasn’t already been deleted by The Duke of Deletions, give me some info and I’ll help you find it. What was the topic of the thread? General time frame? Was it an epic thread or just a normal one? I’ll help you find it. IF IT’S STILL THERE. I believe you. And, my business is to read people. Although I did not see your comment I have a pretty good idea the subject of this alleged, cardinal sin. I don’t agree w/ all of your ideas, but unlike too many here, I will defend your right to say it. This is a classic setup by the henchmen, I’ve seen it before.
The Rules at zerohedge:
davidm,
“Others have been calling for me to be banned for awhile now, well before this intolerable post. Hatred is the motivation. Anybody with a modicum of intelligence can see that.”
I’ll ask a second time: Who has called for you to be banned?
DavidM, They yearn for an echo chamber w/ just simple variations on the same note. Thankfully, those who do have this goal have been told in no uncertain terms “by the highest authority on this blog” as someone called Mr. Turley, that is NOT GOING TO HAPPEN. But, some will keep coming @ you and “banning” is their goal. Folks like them banned rock n’ roll songs, comedians, etc. Back then they were conservatives. It’s “progressives” who now right speech codes, foster PC, etc. I’ve see a 180 degree turn in my 61 years in that regard. Hang tough. The “personal” stuff is their ace in the hole. I believe you when you say you only said something you learned on this blog. Going back and finding it would be helpful but they’ll still act like a wolf pack. At least it will be important to “the highest authority” who no doubt is scratching his head about his posse of late. Like any posse, you have your aces, face cards and a few 3’s. It may be time to shuffle the deck again.
DavidM, They yearn for an echo chamber w/ just simple variations on the same note. Thankfully, those who do have this goal have been told in no uncertain terms “by the highest authority on this blog” as someone called Mr. Turley, that is NOT GOING TO HAPPEN. But, some will keep coming @ you and “banning” is their goal. Folks like them banned rock n’ roll songs, comedians, etc. Back then they were conservatives. It’s “progressives” who now right speech codes, foster PC, etc. I’ve see a 180 degree turn in my 61 years in that regard. Hang tough. The “personal” stuff is their ace in the hole. I believe you when you say you only said something you learned on this blog. Going back and finding it would be helpful but they’ll still act like a wolf pack. At least it will be important to “the highest authority” who no doubt is scratching his head about his posse of late. Like any posse, you have your aces, face cards and a few 3’s.
Hey people, this is a blog, not a government operation. It is privately owned and operated. In point of fact, the First Amendment does not apply here except by the largesse of the blog owner. It so happens the owner of this particular blog, unlike Redstate, Daily Kos, Democratic Underground, Little Green Footballs, and dozens of others on all sides of the political spectrum–he tries honestly to apply the principles of the 1st Amendment; however, there are limits. In fact, the 1st Amendment itself has limits that are codified into case law by Federal Courts.
There is an old adage which was proposed by the great psychotherapist Dr. Elvin Semrad. “If you ask yourself, ‘Should I do or say this, you probably shouldn’t’. ”
David, don’t play dumb with the victim card. Privacy is privacy. If there is information online about me, that does not give you the right to post anything–or link to anything–about me that I have not shared here. I don’t care if it is online or not, it is still off limits unless I give you (or anyone else) express permission. That applies to everyone, commenters and guest bloggers alike. Civility is a ‘soft’ rule. Privacy is a ‘hard’ rule.
DavidM: Part of the problem here is that you all know each other, but you are relatively anonymous to us.
On the contrary; I do not know any of these people except by their writing within this blog, and I have (thus far) never communicated with any of them in writing or otherwise outside this blog.
“DavidM: Part of the problem here is that you all know each other, but you are relatively anonymous to us.
On the contrary; I do not know any of these people except by their writing within this blog, and I have (thus far) never communicated with any of them in writing or otherwise outside this blog.”
Tony is absolutely correct. He and I only know each other from the blog and have never communicated outside of the blog. This is mostly the case with all the regular commenters here. I don’t know Tony’s last name even, or if his first name is really Tony. Yet I do know and respect the TonyC who comments here because of the intelligence and insight he has displayed, that is what counts.
As for you David, the “problem” that you complain of is true of you. You are an “anonymous” person here and so can only be judged on the basis of what you write. As OS and as Mespo (Mark Esposito is a guest blogger here) have stated you are seemingly a professional propagandist simply based on your writing here and the techniques they exemplify, but other than that you are just another anonymous blogger. Now your defender Nick has in the past vilified people who post anonymously, but in your case since he shares exactly the same political views as you do, he makes an exception.
DavidM:
I do hope you stay. While I disagree with some of what you say, it sure is fun to watch you say it. And you say it so well.
The guest bloggers post under their real names so I am not sure what they are trying to hide.
DavidM:
You left out that they want the people they are denigrating to pay for the “privilege” of being denigrated and to say “thank you I deserve to be maligned and derided because I am successful.”
I think Rand calls that the sanction of the victim.
Just say “No” to collectivism.
By the way, that was one of the finest examples of the English language I have seen on this blog.
Excellent, both in substance and execution and accurate as well.
I guess they dont get the nuance of your positions. Liberals are such binary thinkers.
Eh, who will quibble over a lil’ formatting error? Anyone can miss a / . 😀
David,
You know what you have written, and you can do all the mental and logical gymnastics you want, it doesn’t change the facts. You oppose same sex marriage. That is discrimination against a class of people. If a woman wants an abortion, it is none of your business–or the government–as to why. People who oppose government regulation on themselves, such as you and several other commenters here, don’t seem to mind imposing it on others if it fits their own world view.
Do you deny you are a professional counter-blogger as Mespo said? For someone who claims to be a full time businessman, you seem to have an awful lot of time on your hands to write long hypergraphic screeds. You are trying to use the propaganda technique advocated by dictators for as long as anyone can remember.
Otterray Scribe – Now you know what it fees like when you and your socialist Comrads when they are trying to impose various social policies by force and coercion on me. It is no better than DavidM trying to force his moral policies against you.
I am not trying to force any social or moral policies on anyone else as I prefer persuasion, contracts and the various forms of self defense to achieve my goals.
Gene H. 1, December 28, 2013 at 9:45 am
Wow, Dredd. That was actually impressive in displaying that you understand the Constitution is a living document. Well played.
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I screwed up the italics.
Wow, Dredd. That was actually impressive in displaying that you understand the Constitution is a living document. Well played.