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
Oky,
A primitive understanding does not necessarily make one a primitive person. Just uninformed. There is no brake on inflation without a mechanism to check it. That is just one of the roles a central bank performs in a large dynamic economy.
**Gene H. 1, December 28, 2013 at 1:41 pm **
Like the words I hear in a song the crazy guy says something like: There must a door where I came in at.
Referring to the fact he just somehow slipped into his insanity & if he could only find that door he could cure his insanity.
So regardless if my bucket of ideas hold any water or not, society has to find the door back out of it’s mass insanity it’s currently in.
“Injustice is the result of disparate causations, but it is also in itself a cause for other results if allowed to grow unabated. ” (Gene)
**The rest of what you wrote is a primitive scree against central banking which, while I understand your frustration with the Fed, does not translate into universal truths about the utility of central banks in economies of scale.**
My neck got Red because I will bend over & do the work that’s need done.
I have not one ounce of shame over that nor should I!
Now on the other hand all those Phd’s/titles to privilege, they are the ones that had their bloody hands pulling the levers that made this mess.
So I have no problem shunning them for the shame they’ve brought upon their family’s name.
As I recall once there were some “Let Them Eat Cake” hubris types that had a lil dust up with some primitive types.
Let us hope cooler heads will rectify this out of control situation long before this country has it’s own Let them Eat Cake moment.
Oky,
No, not really where appropriate. The S&L fiasco of the 80’s sent over 2000 bankers to prison. The CDS deal? Zero. The reason? Purely corruption and abuse of prosecutorial discretion.
I won’t even mention not punishing our domestic war criminals.
Follow the root causes of dysfunction by first properly quantifying the problems. Injustice is the result of disparate causations, but it is also in itself a cause for other results if allowed to grow unabated. Systemic malfunction, especially in complex systems, often have common causations, interrelated causations and parallel exacerbating effects.
GeneH,
The last time I checked Socialism was still a big word.
**Gene H. 1, December 28, 2013 at 12:10 pm **
GeneH,
It appears to me over the past few decades the govt is handing out felonies to some animals in animal farm like they’re handing out candy canes at Xmas.
Look at this case if you’re confused. 🙂
For chrissake, I’m just expressing empathy from my heart, I swear on the souls of my children that’s what I’m doing. If that is offensive, I apologize. My God, what is happening here??
Oky,
“The people of Austria in the 30′s made the fatal mistake of believing Hitler’s Socialist German was a good model so they joined Hitler’s Socialist.”
Full stop. The people of Austria in the 30’s made a mistake thinking that Hitler was going deliver socialism when he was a fascist.
The rest of what you wrote is a primitive scree against central banking which, while I understand your frustration with the Fed, does not translate into universal truths about the utility of central banks in economies of scale.
_______________
Skipples,
If you want to pay to apply for cert for Benson’s case to be heard by SCOTUS because you are personally dissatisfied with the ruling?
Be my guest.
It’ll be denied again, but you knock yourself out, sport.
Nick,
Would I expect anything less from you…. But I’m not taking the bait…. Good fishing elsewhere….
AY, I’ve been back for a couple weeks now. With Christmas I was busy w/ family, but I’ve been around. The record will reflect that. Happy New Year, AY. I know the Holidays are tough. I had a friend of my brother, who was like a brother, commit suicide on 12/23/81. I pray for his family every year. He suffered from horrible depression and was unfortunately just prior to the meds that may have changed his life.
**annieofwi 1, December 28, 2013 at 8:46 am
Seems like those evil socialist European countries like Sweden, Norway, Denmark, Germany, are all doing pretty well and have a population that enjoy their socialistic tendencies.
**
**Gene H. 1, December 28, 2013 at 9:31 am **
The people of Austria in the 30’s made the fatal mistake of believing Hitler’s Socialist German was a good model so they joined Hitler’s Socialist.
Then as now the world’s Central Bankers & their centralized planning scams have perfected their 3 card Monty scams of pulling capital from some economies & pushing it into others.
AKA: Credit default swaps, interest rate swaps, etc.
Or one could think of nations/economies as a bunch of jars & jelly beans. The amount of jelly beans remains basically the same, the only difference is some days the US dollar is falling or raising against other currencies so the Federal Reserve, BIS, IMF & other Central Banks they move some jelly beans from one jar to another & then back again as they play “God” with all our lives.
(“Doing God’s Work”, Quoting Goldmansachs)
The very limited “Ron Paul” audit of the FRS is now a matter of public record showing a small widow into their constant scamming us & the world’s gen pop.
So I complete reject the fantasy the socialist ** Nordic model** works.
If people are not close minded & can set their long held beliefs aside for a few minutes & consider a different blueprint.
Govt, Banking, Insurance, Military(LE),Energy make up the bulk of USA expenses.
The govt has to keep the Wallst debt fraud scam going to fund Wallst banks/insur’s expansion of global empire at the expense of our USA sovereignty.
In my view what has to happen eventually is the Commercial Banking & the Insurance Industry has to be turned into 1000’s coop type public utilities, allow only enough profits for administrative cost.
Look at the Social Security program, had their funds been invested into normal Home/Biz loans there would be no question of solvency today!
Yes, this type plan has a socialist bent to it, but currently as it is banks/insur are under a fascist monopoly type system protected by govt force.
I’ve long suggested that when people consider the govt’s proper size/role & the amount of real taxes they pay they use the example of a piece of lumber used in their homes.
From the land/forest that the govt taxed where the log was 1st cut, to all the steps in between, to when it’s permanently installed in the homes & property taxes are owed against it every year from now on.
Workers/Citizens don’t just pay that amount they see on their income tax form/sales taxes/etc… They pay a greater price for all the taxes, bank, insur, FRS expense other workers, citizens, biz owner paid on that product from the beginning of production to the end user & they keep paying.
There’s more I could write on these subjects, I’ll spare us all.
But I doubt this nation can make any progress for now as I’m one of only a few that writes anything close to what I wrote above.
And the red/blue teams are headed off in completely different directions & can’t even consider citizen owned/controlled non-profit banks/insur co’s some what on the model South Dakota’s state bank.
Hell, we can’t even agree on a honest currency system, basic property title ownership rights or the rights to expect private contracts be honored by the govt. Talk about a 3rd world Banana Sh.. hole the USA has become.
Well, at least some seem to be catching up to what is & isn’t.
http://www.zerohedge.com/news/2013-12-27/world-according-ron-paul
(I’ll post this so I can then see the typos lol)
“Give me some specific examples”
Of humans being a self-predatory species, Skipple?
Turn on the news. Any station. Read a history book. Try understanding it too. Look at an encyclopedia.
What mitigates this tendency from running amok is social pressure brought to bear by cultural convention as enforced by government in the form of laws and regulations.
If you don’t understand that basic truth about human nature by now?
Then you never will understand human nature.
Genie or Dredd wrote: his answer to my question: “Give me some specific examples” Of course he didn’t answer my specific question and diverted as usual to a generalized question.
Dredd wrote: “Of humans being a self-predatory species, Skipple?
Turn on the news. Any station. Read a history book. Try understanding it too. Look at an encyclopedia. What mitigates this tendency from running amok is social pressure brought to bear by cultural convention as enforced by government in the form of laws and regulations. If you don’t understand that basic truth about human nature by now? Then you never will understand human nature.
Dredd and Genie, you fail to understand that it has always been government agents, anti-capitalists themselves, not capitalists, that have caused every single major atrocity throughout history: 260,000,000 people were killed by their own governments in the 20th century alone.
Gene H. wrote: “What mitigates this tendency from running amok is social pressure brought to bear by cultural convention as enforced by government in the form of laws and regulations.”
Say What???? Gene H. You and your Comrads don’t see the ridiculous and irrational nature that the legalization of the initiation of force and coersion bares on society. You are embracing a system the does exactly the opposite of what you think it does and you think that lassie faire, does the exact opposite of what it really does.
The initiation of force is wrong and legalizing it has caused more death and destruction than any other single concept in history. My eighteen your old nieces even understand the concept.
I also am getting really tired of your lies about not wanting to have a rule of law. I’ll sign on the dotted line right now.
It is very seldom that private enterprise creates major problems.Of course the do though, the BP oil spill was one. So don’t buy BP gas anymore and you can punish BP and it’s share holders. How about the government regulation of the various nuclear plants around the world. How is that working out for the folks in the pacific???
Or how bout government regulations of Bernie Madoff etc, etc. etc.
hsk, If you stick around long enough, you hear the same “critical thinker” “logic” meme’s over and over and over again. They use the boilerplate meme, declare victory, and then go back to Dungeons and Dragons or Betty the blow-up doll.
Nick,
Good to see you’re back… It’s been fairly calm here without the tactile banter…. It kinda reminds me of sophomore logic….. Or family infighting…. There’s a time and place for everything…. Take from this what you wish….
Benson is a convicted felon and the FRE serves to eliminate evidence based on probative quality, i.e. eliminate bullshit. But of course, he said what you wanted to hear so finding him a fraud must be some kind of conspiracy instead of courts serving the public interest of protecting them from fraudulent advice that if taken would land a person in the pokey. 🙄
Also, if you don’t like that trained critical thinkers can dismantle what you say with ease, then perhaps you have the wrong audience for what you are a sellin’, Skippy.
Gene H. Critical thinker? Like a blow job isn’t sex and that’s depends on what the definition of is, is? The only thing you’ve shown the reader is that you are most likely part of the corruption and problem with this country.
Gene H. wrote: Benson is a convicted felon and the FRE serves to eliminate evidence based on probative quality, i.e. eliminate bullshit. Everyone knows Genie, how the system is supposed to work, so thanks for telling the readers what they already know. You do this a lot btw.
Another great term Genie, “probative”: Having the effect of proof, tending to prove, or actually proving. When a legal controversy goes to trial, the parties seek to prove their cases by this …
So let’s do some “real” critical thinking by asking ourselves some critical questions. 1. Did the Prosecution prove that the documents were fraud? No, since they just happen to be missing from the Public Records in DC. Well that’s interesting. 2. So did the Prosecution go to the various State Capitals, as Benson did, to get information that would have proven the fraud; Nope, they just got the Judge to deny due process. It would have been way to much work to get the true documents, to prove the government case: much easier just to deny due process, right Gene.
“Think” about it Gene. What would have happened if Benson & Beckman would have won the case and thus proven to the world that 6th Amendment was not properly ratified?
No more Federal Individual Income Tax. The fascists are not going to let that happen Genie, it’s the second platform of their manifesto. But go on believing that especially the Federal Judiciary, that when they deny due process, they are trying to provide truth, justice and enhance the American way.
http://betweentheheadlines.net/public-information-on-insurrection-from-within/#more-170
This is a very interesting read on this very topic – for those of you who are really critical thinkers. lol
Spinelli offers help to a fellow privacy invader, how precious and special is that?
I’m also still basking in the glow of my “fake trip to Italy.” Those were some intelligent accusations!!
If not responding to incessant rants from an angry, negative, paranoid, man is “improving my behavior” then that may be the case. But there has always been an ebb and flow during my tenure in that regard. I’m in the Christmas spirit and doing pretty well right now. Thanks for noticing.
Elaine:
I just found out from a South Dakota State Rep. that he pays for his own Alec subscription but the state has many subscriptions to legislative orgs. like Alec from all sides of the political spectrum. In fact he says Alec is the least expensive of them all which is why he can afford it.
Seems to me Alec is only one of many such orgs which try and influence the legislative process.
How come you didnt report on the multiple orgs which do the same work as Alec? Are they in agreement with your beliefs?
I think you ought to do a story on all such orgs, just to be fair and balanced of course. 🙂
Also,
I can’t recall who put up that other post.