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
annieofwi:
I notice you dog him every chance you get. You either have a school girl crush on him or he did something to you. At least that is my perception.
annieofwi:
Ball busting? Nick is pretty benign if you ask me. He pokes at Gene and Mike but they poke him too.
Did he do something to you? Your interest in him seems to be more than him busting balls.
Gene H:
yes but the judiciary seems to ignore, tolerate or even encourage the corruption. And many think they are elected to make the laws.
Skipple,
Judicial impropriety is more of an issue than judicial corruption simply by operation of most higher judicial posts being appointed versus elected. The 900 pound gorilla of corruption is the campaign finance and lobbying systems that allow the monied to dictate law and policy. That’s where the primary corruption has its home. I’d rather focus on the gorilla first and deal with the monkeys later. If you mitigate the ability to influence the pols who appoint the suspect judges, you mitigate the suspect judges.
You want to rage against the judiciary? Okay. I’m the first to admit it has flaws, but when the issue is corruption and malfeasance of office, the judiciary is a pale comparison to Congress and the Executive.
Gene H.
How do you get any realistic campaign freeform passed? The majority of those in elected, feed off of it. That is why I believe we have to do and end around game on them, which I will discuss later. I’m tied of blogging today.
Gene Stated:
Skipple, “Judicial impropriety is more of an issue than judicial corruption simply by operation of most higher judicial posts being appointed versus elected. The 900 pound gorilla of corruption is the campaign finance and lobbying systems that allow the monied to dictate law and policy. That’s where the primary corruption has its home. I’d rather focus on the gorilla first and deal with the monkeys later. If you mitigate the ability to influence the pols who appoint the suspect judges, you mitigate the suspect judges.
You want to rage against the judiciary? Okay. I’m the first to admit it has flaws, but when the issue is corruption and malfeasance of office, the judiciary is a pale comparison to Congress and the Executive.”
Genie, you may be correct, to a degree, but I would not use the term “pale”.
Rereading the Law that Never Was: It is both well researched, impeccably documented and written and is not just the work of two men. A group called the Montana Historians helped but the information for the book together. Their original information however was stolen by a Judge in one of the first cases challenging the law and never returned.
The book however does point out some of the dubious actions by both State and Federal politicians and bureaucrats who committed various frauds against our nation in it’s fraudulent ratification.
Any person who cares one iota about your fellow human beings should read this book. Your eyes will be opened even wider, if they are aren’t already.
Campaign reform I believe is impossible, but as I’ve said before Genie, I’m willing, as others I’m sure are, to take a close look.
Hmmm, maybe I should call it “ball busting”.
annieofwi:
are you saying he behaves badly on other blogs? What has he done to you? It seems very personal.
Nick Spinelli doesn’t tolerate turnabout very well. I won’t speak about him and the behaviors he engages in elsewhere because it would violate this blog’s rules. Commenters here already know what he is about, because he has done the very same things, but in a less invasive way here to Turley commenters.
Bron,
The govt/Fed/Wallst have us all locked in pretty tight with their issuance of currency at their whim & control/favoritism of this current income tax system, ie: global corporate/503s,etc., but there still are a few ways left to apply pressure.
I’ve seen you’re post, that you’re also attempting to back out of their current systems the best you can as are we.
Our credit union & one insurance companies gives us a small bit of relief.
We’ll soon see what the polecats fresh game is in a few weeks.
I see here a tea party type guy announced his running in the Repub spring primary against an incumbent neo-con type governor.
It may just another fake out for the voters?
With what Obama has done I doubt there will be hardly a demo polecat left standing in office in OK after Nov 2014.
That may not be good as these Repub polecats have been writing laws just as bad for the people/the real local business as the Demos used too.
But hey got the 10 commandments carved in stone at the capital building, like that was a real pressing priority. LOL
Maybe it was the polecats way of a plea to the citizen: Please don’t kick our butts, remember what the 10c say. 🙂
Keep pushing I guess.
Got ta go.
Gene H. 1, December 28, 2013 at 1:08 pm
“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.
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One of the exercises of the ages has been “to find” some of those who are not “subject to human nature.”
That takes herculean efforts, and never is successful, so the second of the various exercises of the ages kicks in: invent some humans who don’t have human nature (in “literature” and in “religion” for examples?).
Send in the
clownssuper-heroes.Which also takes a herculean effort, so, The Story Flow had to become an industrial strength dynamic, which it
didis (The Deceit Business).“Practically everyone” in the blog wrestling match games points to some social system malady, which is kosher, because there are many such maladies, and it is most-often relatively easy to verify the existence of that malady, or not, so … that it not a big problem.
“The problem roots” all stem from a “curiosity” concerning who caused the malady (“which one of my enemies did this”) or the scientific effort “when, why, how, who, and why?” did this malady originate …
And so forth with vigor …
Stay thirsty my friends.
Bron, I can’t comment on who she is for risk of violating the cardinal sin. But, it does appear she has an ax to grind, doesn’t it? Many, if not most, of her comments are about me. And, lol on the diaper comment. I never heard that and I have a pretty good repertoire. Hope you had a nice Christmas.
nick:
Who is that annieoffal chick who seems to be your very own personal internet stalker? She is on your a$$ like a diaper.
oky1:
“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.”
Sure I can, we had them in the 19th century, they were called mutual aid societies. i am all for that type of free market “innovation.”
GeneH,
Some of the best info on the Fed has come from Paul Volcker in recent years.
But we can hear him parsing his words carefully.
Dec, 2009, Europe, Paul Volcker
Paraphrasing: The operation of commercial banking is such that it takes just a little more then an honesty paper boy to refill the ATMs.
Also, he was furious at his grandson for even thinking about getting into the banking biz.
**And I’ve said that I find zerohedge to be wholly disreputable.**
I’ll take note of that. That’s ok by me, but you don’t mind I’ll keep using them. 🙂
I don’t know what I’d call them they’re target info I’m looking for & they’ve a sense of humor.
(I don’t feel comfortable doing/posting dark humor here on this msg bb)
Oky,
And I’ve said that I find zerohedge to be wholly disreputable.
I might add that correlation is not causation. The 1st Fed wasn’t established as a response to inflation but to war. Hamilton’s argument was that such a bank would be indispensible in the event of a national crisis such as a war and was necessary won the day. Like I said, there are more than one reasons to have a central bank, but I agree that it doesn’t need to be a private institution.
Gene Wrote: 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.
Yes Gene, we all know they are corrupt. There is a long list of cases they will not hear, despite their requirements, of upholding the Constitution, to do so. I thought the case on the right to Redress of Grievances, We the People vs US was pretty interesting, as it abrogated a very important right, outlined in the 1st Amendment, in just one case; perhaps a record. Essentially, one corrupt Judge, because the appeal to a three panel Court was denied for a ridiculous reason and the appeal to the SCOTUS was not heard, has changed our rule of law. The reason they gave was that “we must rely on the original court decision more often because it is setting a bad precedent to hear all appeals “. How is that for arrogance and corruption. They’re not even hiding their indiscretions anymore. Most Americans are however, lost in the matrix, trying to make sense of decades of lies and corruption, not wanting to believe the facts.
Many do however know, that the legal community has long been the lackies for the banksters. Just remember, they will throw you to the wolves, if needed or desired.
So Genie, my question to you, is how would your proposed system change a system likes ours, that is fraught with these levels of Judicial corruption, so that justice could be restored?
Spinelli has a way of bringing in personal issues (another commenter’s personal loss) and directing them toward his victims, when he is caught in his own game, he valiently attempts to appear innocent and “concerned”. His big heart and compassion are in his own imagination only, from what I’ve observed about this man.
My oh my, poor misunderstood Spinelli, ever the victim, never the abuser. How many times has he had to scramble to paint a prettier face on his comments? Quite often from what I’ve seen here on the Turley blog.
GeneH,
I don’t see the link now, but I posted a zerohedge chart a week or so ago showing there were no more economic down cycles in the US before the creation of the FRS then after.
The only major difference was this continued massive inflation that the Fed is creating.
IE: Insurance doesn’t reduce risk, it massively increases risk.
Elaine M. 1, December 28, 2013 at 11:32 am
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?
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This blog is certainly a target of Sauron, whom they have pennamed “the NSA.”
AY, I have a special place in my heart for parents who have children die. My mother lost twins, shortly after birth, when I was 4. All I remember were the emotions, the sadness and anger. It was never spoken about. I have an aunt who had two teenage sons die from a congenital blood disease. Finally, I have a friend who struggles through every day of her life. When she was 7, her sister died of cancer @ age 4. I worked w/ this girls dad. She has had 2 children die, the second after 3 heart surgeries @ Lucile Packard Hospital @ Stanford. She lived in KC but flew out to Stanford for 3 long stays @ a Ronald McDonald House to get the best surgeon in the country for this condition. The best was not good enough. Her first died @ childbirth.
You have been pretty tough on me in your own way. I do not lash back @ you, I will never get angry @ you, I will always pray for you and all people who have children die. It’s not supposed to happen that way. That’s my background. I’m pretty much an open book here. I not only lay my thoughts and opinions out, I lay my heart out too. I’ve been tough on your buddies @ times and you don’t like that. I understand that, I am Italian, we understand loyalty. However, I do not have an angry bone in my body toward you, AY.