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
CHRISTMAS VACATION! FAMILY MAN! Wait a minute, “It’s like tryin’ to tell a stranger about rock n’ roll.”
“CHRISTMAS VACATION! FAMILY MAN! Wait a minute, “It’s like tryin’ to tell a stranger about rock n’ roll.”
Nick,
Now knowing your rather limited mental perspective, your vicious streak and your bad attempts at acerbic humor I know that remark was directed at Gene, because of David’s comment. I really think you don’t want to get into family issues because when it comes to that, you are also vulnerable, being far less successful than your mate.
nick,
If you don’t like that part of the GB job is reporting policy violations, I suggest you take it up with the owner.
I do believe “bogus” and “fraudster” covered that, David. The difference between tax avoidance and tax evasion as a term of art is one is based in legality, the other is not, however both seek tax avoidance ergo a tax evasion scheme is merely an illegal tax avoidance scheme. Which again is covered by the non-art but yet easy to understand terms “bogus” and “fraudster”.
Q: Who ruined a nice Chicago family man’s CHRISTMAS VACATION w/ a load of shit?
A: Al Capone
B: Cousin Eddie
C: Gene “The Whiner” Howington
D: Ernie Banks
Answer: B and C, but cousin Eddie had more class and dressed better.
Dredd: Most true atheists (by which I mean people that do not believe in anything supernatural), and I am acquainted with dozens, are critical thinkers, which means they do not believe what they read or are told unless it fits in with a coherent and logical model of reality. That is how they became atheists in the first place, and came to recognize that 95% of humanity is just wrong to believe in the supernatural, which includes as a subset any supernatural deity, or supernatural justice or punishment.
As critical thinkers, we do not feel compelled to reject any large collection of stories and ideas in its totality. We are free to pick and choose amongst the pieces and find bits we like without believing the supernatural premise. Just as a bad song, book or movie can have a few clever or moving or funny lines, the Bible has many quotable lines.
It should, it is based on many centuries of verbal traditional stories refined by thousands of tellings to be memorable and pithy. Why deny ourselves that human legacy just because some ancient group hijacked it for their own selfish gain?
“But yes, quoting a scripture is not the same as understanding it, and also not what makes one a scholar of that scripture.”
The same can be said of law, OS. Knowing the letter of the law without proper context is a recipe for getting it wrong. Much like that convicted fraudster Benson did with his bogus tax avoidance scheme.
Gene H wrote: “Much like that convicted fraudster Benson did with his bogus tax avoidance scheme.”
Tax evasion scheme, not tax avoidance. There is a legal difference.
An income tax is a disgrace to the human race. If you read the various debates in all the legislative bodies, the average man was surely not supposed to be burdened by the aggressive nature of government to steal their wealth at gun point.
Skip,
You assume that disdain for the actions of one set of plutarchs doesn’t translate to disdain for plutarchs or plutocracy in general. That would be a bad assumption. Get back to me when the Rockerfellers are funding the Tea Baggers and try to make government their own private fiefdom though. I’ll heap plenty o’ scorn upon them.
“Do you really consider those who favor lassie faire over a mixed economic model, as more greedy and less caring of their fellow Citizens?”
Yes, I do. Because they put profit above principle, social responsibility and civic duty. If they didn’t, they wouldn’t whine so much about not being free to exploit anyone or anything however they see fit so long as it complies first with their profit motive. QED that makes them more greedy and less caring of their fellow citizens than someone who understands the value add to a social structure, a political structure and an economic structure of a strong safety net and proper regulation. What does or does not entail proper regulation was dealt with extensively here and is a separate discussion.
Gene H. Really?
You cannot understand the simple concept, that if you do not have profit, it is impossible to provide a benefit to others.
Try building a house for your family without the excess money to do so.
Take the average Citizen, he cannot contribute to the poor if he has no excess money left over to contribute. Bill Koch cannot build a private school unless he has profits to do so.
It is as if you believe all business people are unethical, because the seek profits to improve their lives and the lives of others.
Greed in not giving back to your fellow Citizens when you have the ability to do so but you must have the ability to do so, to be able to give back.
Not all capitalists are greedy Gene H. and I would suggest that it is not capitalists that are impoverishing the average Citizen in this country.
Skip says: Do you really consider those who favor lassie faire over a mixed economic model, as more greedy and less caring of their fellow Citizens?
I certainly do. A combination of more greedy, less caring, and less intelligent.
Otteray Scribe 1, December 29, 2013 at 9:01 am
David writes in response to Mike: “Then shalt thou call, and the LORD shall answer; thou shalt cry, and he shall say, Here I am. If thou take away from the midst of thee the yoke, the putting forth of the finger, and speaking vanity;” Isaiah 58:9″
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What a curious response from someone who professes to not be religious or, IIRC, does not have a religion. For such a person, Biblical quotes should be irrelevant.
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Some atheists/agnostics are very good bible, koran, vedas, etc. scholars.
The reason is that they have the professional ability to set their own whatnot aside when studying text to determine what it says first, then perhaps what it means, second at least.
Whether the text is “true” or not is not a primary concern of such scholars.
But yes, quoting a scripture is not the same as understanding it, and also not what makes one a scholar of that scripture.
And, as always, I should proof before I post. (runaway bolding).
DavidM says: At some point, you should consider that Gene’s style is counterproductive to a free speech blog.
That doesn’t follow; a free speech blog should allow one to express their opinions, even insulting opinions or racist opinions, as you have oft expressed. Gene (or I, or Bron, or Nick) can be insulting of others comments within this blog without trying to research each other and bring information in from outside this blog.
DavidM says: I have a pretty thick skin,
Apparently not. Your skin is so thin you felt compelled to seek advantage by Googling for trumping ammunition on Gene, or however you obtained it.
The point of the “thick skin” is that attacks do not penetrate it and the owner is not wounded by attacks, or barely scratched. It is a metaphorical allusion to toughness and invulnerability. As Gene has said, I think you became desperate or frustrated and chose to seek advantage elsewhere, because to you, winning by any means necessary is the only rule you follow.
That is how sociopaths think. And the only thing they respond to is threats of force and force itself, in this case being threatened with banning. That is not just true in politics writ large, it is true in communities as small as this, numbering in the mere hundreds (of writers).
Which is a good example: Because even on something as free as speech, you cannot be trusted to play by the rules when losses are threatened, even when those losses have no material value whatsoever and are nothing but your pride or your ego. Instead of surrender or walking away from the verbal battle, you have to win no matter what it takes.
If you cannot behave in the freest “market” imaginable with nothing whatsoever at stake, why should we think you would behave in a free market with money and lives at stake? We should not think that; and that is why we have to set rule after rule, law after law, to constrain those that think like you.
DavidM says: but you will never have a balanced blog with both conservatives and liberals able to have civil dialogue …
What in the world makes you think that balance is the goal? Nothing in Dr. Turley’s post claims that as a goal, at best his goal is civil discourse.
IMO, the type of “balance” you seek is equal “respect” for good ideas and bad, but that should never be the goal of any debate or argument. Those that demand respect and politeness are frequently those whose ideas cannot withstand criticism, or that wish to dictate a point without anybody arguing against it or calling it bullshit.
“Balance” is counter-productive, as may be politeness and respect if, as they often do, their practitioners mistakenly cross the line into deference and a failure to challenge the basis for spurious claims. The point of debate, like the point of science, is to discriminate between good ideas and bad, ideas that work and ideas that fail.
Some ideas deserve to be vilified, some ideas are stupid, misguided, and misinformed, unintentionally based on lies and deceit, or grounded in fantasy, or intentionally deceptive and promulgated to deliver selfish gain.
Some ideas and some persons have proven they do not deserve respect, or politeness, or civility. I consider you one of them.
“The foundation of Western civilization has its origin in Judaism.”
I’m not sure Plato, Socrates, Hippocrates, Sophocles or Aristotle would agree with that assertion. There is a difference between the articles “the” and “a”.
hskiprob 1, December 28, 2013 at 4:37 pm
Genie or Dredd wrote: … 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.
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It is not difficult to find out who wrote what (CTRL F works on most browsers to initiate a search algorithm for finding text on a page).
I did not write what you said I wrote.
For one thing, I have never referred to you as “Skipples.”
For another thing, I tend to refer to everyone by their own self-selected blog handle.
Did I mention your assertion that the wealthy should have greater voting rights than the rest of the citizenry, David?
Convince me of that one too.
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OS,
Yeah, I noticed that too. Curiouser and curiouser.
David writes in response to Mike: “Then shalt thou call, and the LORD shall answer; thou shalt cry, and he shall say, Here I am. If thou take away from the midst of thee the yoke, the putting forth of the finger, and speaking vanity;” Isaiah 58:9″
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What a curious response from someone who professes to not be religious or, IIRC, does not have a religion. For such a person, Biblical quotes should be irrelevant.
OS wrote: “What a curious response from someone who professes to not be religious or, IIRC, does not have a religion. For such a person, Biblical quotes should be irrelevant.”
Mike Spindell is Jewish. (Oops. Am I allowed to disclose that information?) My quote is no more odd than my quoting an empirical study to a scientist. Hopefully the passage has meaning to Mr. Spindell.
I am a theist who belongs to no religion. Nevertheless, I have great respect for the Jewish religion and their Scriptures. I think I have stated this many times. The foundation of Western civilization has its origin in Judaism.
However, let’s go back to those issues you “want to discuss”, David.
Like why homosexuals should be denied equal protection and equal rights because it conflicts with your “traditional values”.
And how black are inferior.
And women should be subservient.
And how a couple of billionaires trying to privatize the government for their personal financial gain are really just swell upstanding folks and fine Americans.
You claim you didn’t have a fair hearing of your ideas?
Convince me you’re right.
“I do not lie.”
Only like a rug.
Gnite,
you kids play nice now. lol
Oooo. Cranky. How very predictable.
Unreliable news sources! LOL
Oh, I’m so anger at the Birchers for exposing CIA ties to a known propagandist oufit, but what do I know, I must be bat Sheet Crazy to not trust those aholes. 🙂
Ya… Right.
(Don’t Drone me Bezos!) lol
**Washington Post Urged to Disclose New Owner’s CIA Ties
Alex Newman
The New American
December 28, 2013
The Washington Post, one of the premier mouthpieces for the establishment, is facing a tsunami of criticism and calls for full disclosure after the newspaper’s new owner, Amazon CEO and Bilderberg luminary Jeff Bezos, secured a $600 million contract with the U.S. Central Intelligence Agency for “cloud” services. According to critics, theWashington Post boss’s CIA ties represent a serious conflict of interest that, under basic ethical standards in journalism, must be disclosed to readers — at least whenever the paper is reporting on the “intelligence community” and its activities. So far, however, the Post has not publicly announced whether or not it will acknowledge what analysts say is a cut-and-dry conflict of interest. **
http://www.prisonplanet.com/washington-post-urged-to-disclose-new-owners-cia-ties.html