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
DavidM, The comment that was deleted said you need to hang tough. When you whittle away all the horseshit, smugness, nastiness, and bullshit, it come down to you are successful and some of those attacking you are not. Losers hate winners.
At some point the professor has to see the immorality of a couple of people he has put in charge.
Looks like someone got deletion fever. A comment I made to DavidM, and responded to by Gene the Dancin’ Machine, was arbitrarily deleted. Despicable violation of free speech by someone who just made a comment about free speech and”wear a cup.”
Everyone’s not a loser. Most folks here are winners.
I’m here taking heat all the time, loser. Who disturbed Mr. Turley’s Christmas vacation to whine?????
If you can’t take the heat . . . whine about what a winner you are?
No, no. That’s not it.
If you can’t take the heat . . . everyone else is a loser?
Nope. Not quite.
If you can’t take the heat . . . cry?
Apparently some think so, but no.
If you can’t take the heat . . . get out of the kitchen.
Bingo.
I respectfully submit perhaps some Anger Management class, Diversity Training, & some fresh new comedic material.
You know, lots more carrot & way less stick.
The Tax Donkeys out here are happier that way & work harder. 🙂
DavidM, This is the way it goes. The gloating goes on but you’re still here, my man. They can hammer away and the B, C team are under constant scrutiny. But, I’ll say again YOU ARE STILL HERE. Keep up the fight. You’re a successful man. And, when you cut through all the horseshit, gloating and bullshit, that’s why they despise you. Losers hate winners.
On second thought it could be I’ve just missed the humor written into those laws/regs because they all read about the same:
The Laws Sez, ya the Laws, the guys with the Guns, Badges & at the Judge’s disposal :
Listen you lil sheeet you comply or were going to pound you in the head with a club & it’ll be 10 years, $10,000 fine or both if we’is feeling particularly ornery that day.
Ya it could be they are writing that Dark Humor I spoke of earlier. 🙂
Professor Turley, thanks for stopping by, but
I can imagine Rodney Dangerfield himself saying you’re a tough act to follow.
Which started my mind to wondering, of all the legal documents I’ve attempted to discern why is there so little humor written into those laws/documents. Is the Law only meant for Robots to read & not for humans to enjoy?
Where in the US do we find Judge Roy Bean’s poetic justice today? (smile, it only hurts a little!)
** Before founding Langtry, Bean had also secured an appointment as a justice of the peace and notary public. He knew little about the law or proper court procedures, but residents appreciated and largely accepted his common sense verdicts in the sparsely populated country of West Texas.
Bean was often deliberately humorous or bizarre in his rulings, once fining a dead man $40 for carrying a concealed weapon. He threatened one lawyer with hanging for using profane language when the hapless man referred to the “habeas corpus” of his client. Less amusing was Bean’s decision to free a man accused of killing a Chinese rail worker on the grounds that Bean knew of no law making it a crime “to kill a Chinaman.”
By the 1890s, reports of Bean’s curmudgeonly rulings had made him nationally famous. Travelers on the train passing through Langtry often made a point of stopping to visit the ramshackle saloon, where a sign proudly proclaimed Bean to be the “Law West of the Pecos.” **
http://www.history.com/this-day-in-history/judge-roy-bean-dies
**Bron 1, December 28, 2013 at 8:44 pm **
Gee Bron,
And all this time I thought it was my having b-alls 2x larger then my brain computing capabilities to operate that made me this way. 🙂
Surely we’ve talked about free will before.
Emotions are indeed part of what makes a man. Even their absence. Free will however? Was never part of the contention and is an entirely separate issue.
Gene H:
“A study at University College London in the UK has found that conservatives’ brains have larger amygdalas than the brains of liberals. Amygdalas are responsible for fear and other “primitive” emotions. At the same time, conservatives’ brains were also found to have a smaller anterior cingulate — the part of the brain responsible for courage and optimism.”
That is interesting because conservatives want more freedom and autonomy from government control. Not exactly in line with fear and hardly pessimistic in thinking the individual can do a better job of taking care of himself than government could.
The brain is plastic and the study from UCL doesnt look at childrens brains only adult brains. So the variation in size could be from life experiences.
As I said above, it is a little too early to tell. But then leave it to a lefty to think emotions make the man and that man has no free will.
Bron,
How many conservatives does it take to screw in a light bulb?
Two, but they have to be really tiny, the bulb must be made in America, powered by coal and they must use the missionary position.
How many liberals does it take to screw in a light bulb?
None. They prefer scented candles.
How many Libertarians does it take to screw in a light bulb?
It depends on whether Ayn thinks they are worthy of light or not.
I got a million of ’em.
I’ve seen that before, Bron. Very funny. Not science.
Gene H:
the same science that developed this model?
http://maverickphilosopher.typepad.com/maverick_philosopher/2011/11/the-brain-dead-left.html
Bron,
I’m sorry science isn’t going your way. Better luck next time.
Should not David be allowed to further elaborate on his previously stated positions, Darren? They are, after all, what is at issue. He claims he has not had a hearing of them despite the record showing that he has clearly had a hearing of them. He couldn’t make his case before so in frustration he lashed out in an unacceptable manner. Sad but true. That doesn’t preclude him from having all the column space he wants to try to prove them right. Does it? If his arguments have merit, they’ll withstand critical scrutiny. Even ridicule. But if they don’t? Such is the Tao of things in a marketplace of ideas.
Surely his ideas are not so good that they should be accepted as true without challenge. Or even ridicule. Does not the ridiculous merit ridicule? Yeah, verily, tis so.
If one is willing to advocate a position, one should be willing to accept when it is challenged no matter the form of the challenge. Ideas survive on the merits. The rest is show business.
Many former liberals, i.e. leftists and even Marxists have renounced progressive ideology and become actual 18/19th century liberals; who believe in free markets and free people. This is really the essence of conservatism. Are their brains also constructed in such a fashion?
Since science is just beginning to figure out how the brain functions, it is a bit premature to jump to any conclusions regarding function and structure.
That line of thinking is very similar to what racists do with skin color and what the Nazis did with various cranial features.
Leave it to a progressive to become embroiled in biology to denigrate an individual.
“Many former liberals, i.e. leftists and even Marxists have renounced progressive ideology and become actual 18/19th century liberals; who believe in free markets and free people.”
Bron,
This is true which is why I loathe 19th Century progressives like Teddy Roosevelt who were racist imperialists.