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
Does anyone really think a person should be able to disclaim their stated positions and complain when others take them to task for those positions or draw conclusions about them based upon said statements?
If one does not like the impression others get about them from their stated positions, then perhaps they should revisit their positions.
DavidM, Always take note of the “law degree” not lawyer. There are 2 main reasons people who spend all the time, effort, and money to get a law degree and then are not lawyers. I mean there are many reasons, but there are 2 main ones.
Bron, WTF is it about people who always NEED[that’s not shouting it’s emphasis] to have the last word? Is it a breastfeeding issue? Now, that’s just a question! I have no knowledge of ANYONES breastfeeding habits other than my own. I’m just trying to understand the pathology. I mean I know I’m correct. Most everyone just wants this to end, but there’s something in this guy that just can’t let things go.
Bron,
Wouldn’t own a Rolls. They’re pimp-mobiles. Well built, sure, but tacky.
Also, I consider a robe on Sunday after a holiday perfectly acceptable attire.
Gene H wrote: “Also, I consider a robe on Sunday after a holiday perfectly acceptable attire.”
LOL. Now you have created an image in my mind of a wealthy Hugh Hefner type.
David,
It’s not my fault you said you majored in biology and yet couldn’t differentiate between a species and a sub-species. I didn’t doubt you have a degree in biology. I simply took you at your word. It’s also not my fault you don’t have a law degree yet insist on playing at knowing what you are talking about.
Again, heat, kitchen.
Some want to end the warfare when it appears they have lost.
As for marriage, if it concerns itself primarily with procreation, then God help those who are beyond childbearing years and wish to marry, are their marriages not legit?
annieofwi wrote: “then God help those who are beyond childbearing years and wish to marry, are their marriages not legit?”
In most cases, it would be best for them if they did not marry, but the complications that would arise by making such illegal are not practical.
Furthermore, as I have outlined in the past, there are two primary reasons for marriage. 1) Gender diversity resulting in complimentary unity, and 2) Reproduction resulting in a family. Lacking reason 2, there still remains reason 1. In some situations, that might be sufficient enough a reason, but in many situations it is not.
nick:
Are you revealing personal information about Gene by saying he dresses poorly? I think you should be reported.
I think you are wrong though, I imagine Gene H wears tailored shirts and $500 dollar English last shoes which he has made to order. He probably gets his suits from his personal tailor in Hong Kong and I am guessing he drives a Benz or a Beamer, a Rolls would be too flashy and wouldnt put him down with the kause.
That is how all rich socialists are, they live high and massage their guilt by making other people pay to support the poor. Tony C is probably worse, he probably has a Rolls.
nick,
Sorry, but that is simply counter-factual. If someone posts personal information about you without your permission? I’ll be the first to knock the comment out and report the problem. I’d suggest you get someone to do that for you as a test, but that would kind of defeat the whole “without your permission” part of the equation. However, if you don’t think I’ll report violations against other posters? Ask Smom or AY. I’ve gotten between them and others involving policy disputes. I’ve even taken steps about policy violations for posters who didn’t (and still don’t) know I had done it.
So unless you just want to call me a narcissist again, I suggest you end this now. You’re the one persistently on the attack. I have not abdicated any right to self-defense nor have I been asked to. In fact, you’re attempting to insert yourself (again) into something which is quite simply none of your business.
So if you want to end it?
Don’t reply and it’s over.
Try it.
You’ll get what you want.
Unless, of course, “wanting it over” isn’t really what you want.
Elaine:
nope, the government did so by not letting some of the banks fail. As they rightly should have. Their assests would then have been distributed to more efficient institutions.
This is exactly what started to happen before Paulson convinced Bush to bail out Paulson’s Wall St. buddies. A purely socialistic move by government. No libertarian economist that I know of supported that move and no Objectivist philosopher I know supported the bail-out either.
“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.”
Nick,
Where did you get the idea that anyone “ruined” JT’s Christmas vacation? Certainly not from personal communication. I know that because me and the other GB’s have been in touch with him a lot since Christmas and he in no way expressed the idea that his “Christmas” vacation had been ruined.
However, you made that up because you were looking for some way to attack Gene and given your rather limited creative faculties you came up with this lame attempt at acerbic humor. You should stick to being a dick, Nick, and leave the creativity to other members of your family that actually have a talent greater than snooping on people.
What is the difference between the two private Sam Spade and Nick Spinelli?
One is actually a nuanced and interesting character, who surprises the audience by not acting in a stereotyped manner.
The other is Nick Spinelli.
It has been brought up repeatedly by more than one commenter that marriage is about sex and having children, because of something called ‘natural law’ and body parts fitting together.
Sorry, but if marriage is necessary to have a child, 40.7% of American women never got the memo. As many as 48% of first-born children are born out of wedlock.
Sources:
http://www.cbsnews.com/news/almost-half-of-first-babies-in-us-born-to-unwed-mothers/
http://www.cdc.gov/nchs/fastats/unmarry.htm
OS wrote: “…if marriage is necessary to have a child, 40.7% of American women never got the memo. As many as 48% of first-born children are born out of wedlock.”
Not saying that it is necessary, but that marriage is an institution that defines the relationship between man and wife, who naturally produce offspring that create other family relationships. Go to your studies, and you will find that children born out of wedlock have a higher likelihood of engaging in crimes, drugs, and other social ills. In recent times, thanks to feminism and the homosexual agenda, marriage has been on the decline and ultimately societal ills reminiscent of barbarism will increase, school violence will increase, etc.
That’s a lie and more people than your narcissistic mind could ever comprehend, know that. Now, let’s end this. We’ve both said all that needs to be said. Mr. Turley would want this back and forth to end, I want it to end, Lord knows most everyone does. How ’bout you?
“You cannot understand the simple concept, that if you do not have profit, it is impossible to provide a benefit to others.”
I think you don’t understand what profit actually is, Skupper. As Tony has pointed out before, profit is excess money taken as reward. Or as properly defined “a financial gain, especially the difference between the amount earned and the amount spent in buying, operating, or producing something”. It is perfectly possible to build a house and break even. I have zero concern over Koch’s ability or inability to exercise his charitable inclinations nor do I trust him to have them and exercise them in the interest of the general welfare. We’ve tried the “let charity handle it” mode of social welfare. It didn’t work on scale or uniformly. Just so, not everything can or should be done for profit. For example, health care insurance. Every penny of profit those private companies take is money that could, and many would argue should, be spent on patient care instead.
Profit is not a God given inalienable right and is unjust if it harms others, harms society as a whole or deprives others of their rights.
People who think otherwise worship money.
Which is such an appealing humanistic compassionate state of mind.
Or not.
Gene H. wrote; It is perfectly possible to build a house and break even. I have zero concern over Koch’s ability or inability to exercise his charitable inclinations nor do I trust him to have them and exercise them in the interest of the general welfare.
Really? So, as an example, if a buy a used motorcycle for $5,000, do some work on it such as a new paint job, add some cool parts to it and sell it for $7,500 deducting parts, labor and time of $2,000 thus profiting. $500, that I do not have the Right to this profit? That I should only sell it for $7,000 and forgive the gain?
Who does if not me. Corrupt politicians and Judges?
My point is that as long as I don’t harm others, which as you know, is the foundation of libertarianism, as every member of the LP must sign an agreement under oath, “that they will not initiated force or fraud against others or their property,” that I cannot give to others without this profit. I’m not greedy for desiring the profit, I’m only greedy if I do not contribute to the welfare of society with my excess profits, because I must also feed, clothe and shelter myself and family before giving to others.
I guess I could give all my money away and be homeless or perhaps as we have today, let government take so much profit from average people, they can not longer afford homes or feed themselves.
You must trust yourself before you can trust, that not all people are bad actors. If we have a system that promotes bad actors, that perhaps this is part of the problem. We have legalized the initiation of force and coercion in every aspect of human endeavor and believing that that this will not have a profound effect on the psychology of our Citizens is in my opinion, missing an element of human nature in that we as humans do not like to be ruled by others and we do not like our property taken form us without our consent, believing that each one of us, has just as much authority, to spend our money as we feel necessary and proper.
Thinking that those in government are more trustworthy than your neighbors, friends, family, fellow townspeople and countryman working in voluntary association has been a fools errand. It apposes the nature of human beings of self determination, liberty and responsibility. There are few that like being ruled over by others, and those who do, I do not think you would want them in the determination.
I can wait to see how you can twist this one. You guys never cease to amazes me though. Twist away.
Skip says: So how is government the ability to make marriages “well-functioning.”
Exactly as it has done, by making marriage constitute a standardized contract with thousands of particulars, by clarifying that marriage gives the participants both hundreds of privileges (like visitation during illness, protection from testifying against a spouse, power of attorney in medical decisions and so on) and hundreds of obligations as well (such as sharing property equally, being jointly liable in lawsuits, and so on).
The law makes marriage well-regulated by resolving disagreements and misunderstandings and various puzzling situations that have come up, over time, about specifically what “marriage” means to society and what it does not mean to society, what it permits and does not permit, what is a responsibility of marriage and what is not, what is a privilege of marriage and what is not.
Marriage is a state defined by society, with rights and privileges to be honored and protected by society, using the police and courts of law paid for and operated by society. As such, society has the right to determine and clarify, to any extent it deems necessary, precisely what it will honor and protect under the label of “marriage,” and indeed what requirements it will impose upon people to enter that societal contract to be called “marriage.” That includes licensing, for a fee if we deem it necessary. A marriage entails a certain level of obligation of society to honor and protect it, responsibilities which on average costs a non-zero amount of money to execute, and a licensing fee is not an unreasonable demand in return for the protections and privileges afforded.
That would be correct, Elaine.
No, nick. It was about the policy. Had David done that to another poster, even you, I’d have done the exact same thing.
By the way, uncontrolled shouting can be a symptom of a much greater underlying problem.
You should get a doctor to look at that.
Gene H wrote: “No, nick. It was about the policy. Had David done that to another poster, even you, I’d have done the exact same thing.”
May I remind you that in the past, you and others ridiculed my educational background, yet nobody was reported for it. Your hyperbolic comments even led another commentator to think erroneously that I had never earned any college degrees.
“May I remind you that in the past, you and others ridiculed my educational background, yet nobody was reported for it.”
DavidM,
May I remind you that you are an anonymous blogger. We don’t know your real name and in truth your picture may not be you and your initials might not be DM. Since you are anonymous your educational claims are open to question, especially because your writings give lie to those claims. When an anonymous individual presents purported “facts” about themselves as proof of a position, then their claims are fair game for questioning. Even Nick will tell you, that since he has questioned the motives of anonymous commenters in the past.
Mike Spindell wrote: “May I remind you that you are an anonymous blogger. We don’t know your real name and in truth your picture may not be you and your initials might not be DM.”
What does this have to do with it? I am in exactly the same position. I don’t know that what Gene has revealed about himself is true. I don’t know for sure that he is using his real name, or that he really attended the colleges that he claims to have attended, or any other information that he has chosen to reveal about himself. I just rely on his word about it, despite how his interaction stretches credulity.
I think Gene believes as I do that unethical and greedy business people are unethical and greedy. That doesn’t mean that we believe that all business people are unethical and greedy. The banksters of Wall Street have helped to impoverish the citizens of this country.
Elaine M wrote: “That doesn’t mean that we believe that all business people are unethical and greedy.”
No, you are not talking about all business people. You are talking about me. Your colleagues have called me a liar, a sociopath, a psychopath, a bigot, a phony, a fraud, a homophobe, a hater, a fake, a lover of money, a sophist, illogical, greedy, selfish, uncaring, uneducated, without understanding, lacking intelligence, etc. etc. etc. Do you really think such epithets are appropriate in a public forum that is not about me?
Not on his CHRISTMAS VACATION. It was all about you, not the policy. If I, hsk, DavidM, Bron, or a few others had personal stuff revealed about us it would not have been reported, certainly not on a FAMILY CHRISTMAS VACATION.
I am not sure where “well regulated” in its historic context comes into play regarding marriage. I agree with the concept of “well regulated” as meaning “in good working order,”
The main purpose of the state regulating marriage is twofold. First, it serves a record keeping function. For example, if it weren’t for marriage records, the study of genealogy would be infinitely more difficult. Second, it is an enforceable contract, providing for both rights and responsibilities. It has nothing to do with sex, reproduction, or who is responsible for taking out the trash. It does provide an enforceable contractual guarantee for issues of custody, support, inheritance, health care, and hospital visitation rights, to name a few.
Again, if you don’t like that part of the GB job is reporting policy violations, I suggest you take it up with the owner, nick.