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:
“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?”
Welcome to the club, although I havent ever been called a homophobe at least not that I remember.
I can tell you it really bothered me for awhile too, it is definitely used to stifle speech. It is how the left keeps conservatives in the public eye in control too. But after awhile you realize that someone who needs to use those epithets while arguing really isnt much intellectually. It is quite intellectually lazy to be sure.
I personally doubt Gene H, Tony C, and others could refrain from using those words. They think they are entitled to them because of their “superior” ideas.
There was a recent controversy over personal attacks, name calling, bullying, and personal information posted on this blog. I hope to have that controversy put behind us. However, I want to repeat the policy of this blog. We maintain a civility policy on this site. We have no interest or tolerance for personal attacks or character assaults. There are plenty of sites that thrive on that type of discourse. While I did not ban anyone in the last exchange due to our commitment to free speech principles, we will continue to delete comments in which posters choose to address the poster rather than the point. More importantly, posting private facts about guest bloggers or posters is not just creepy but prohibited. If you cannot engage in civil discourse, please just move on. People come here for adult conversation — passionate but not personal. We are not interested in how you may think a person’s background or character relates to his or her views. We are interested in the issues. That does not appeal to everyone. For those who want to insult or threaten people, do us the favor of contributing elsewhere.
annieofwi
1, December 29, 2013 at 12:14 pm
Elaine, when our wombs are out of commision, we should just fling ourselves on the pyre, it seems.
*****
Yes…onto the pyre–along with uppity women who dare express their opinions and who believe they should not be subservient to men!
“Neither do I. The problem is that someone is lying about me, and you believe the liar.”
In a word: bullshit.
davidm,
I am guilty of nothing. I asked you earlier in this thread to explain how you found out that information about Gene–information about him of which I had no knwledge…and I have been a regular on this blog for many more years than you. Still, you haven’t responded to my request. Why is that?
Elaine M wrote: “I asked you earlier in this thread to explain how you found out that information about Gene–information about him of which I had no knwledge…and I have been a regular on this blog for many more years than you. Still, you haven’t responded to my request. Why is that?”
Maybe it is because you are a woman. 🙂
Or maybe it is because I explained already that Gene revealed that information publicly. Oky said he saw that information practically verbatim and therefore thought nothing about what I wrote, virtually skipping over it. So I have a good memory. Does that give anybody the right to crucify me for it and make false allegations? A few even thought I was a paid counter-blogger, can you imagine that? It is truly unbelievable how gullible the leaders of this blog are.
Skipper,
You seem to have mistaken the position as anti-profit. I have no issue with most things we do in society and its economy being done on a for profit basis. I just don’t think that one model is the silver bullet solution to every problem or need. Again, you – like Bron, choose to ignore that a mixed economy depends on capitalism. Just not laissez-faire capitalism. No need for me to twist. You’re doing a fine job of it yourself. In fact, Chubby Checker just called and asked if you were available for lessons.
Nick,
There may be many reasons…. Don’t you and David have others to prick…. There are other sites I am sure you would be welcomed upon…. Quit making it personal…. And maybe it won’t be personal….
Elaine, when our wombs are out of commision, we should just fling ourselves on the pyre, it seems.
And should they be denied the legal protections of marriage, just because thy will no longer produce offspring? I hope you haven’t given any older lady such advice who might actually think you care about them.
annieofwi,
Women should know their place in this world, doncha know? Reproductive services out of commission? No marriage for you, lady!
😉
So they should be denied the ceremony in which they pledge themselves to one another in love ? Really? Wow, that’s cold.
Yes, older widowers–by all means–should marry again. But widows past their childdbearing years should be discouraged from doing so. Let them live alone. After all, they’re only lowly women whose only duty in life is to produce offspring…and to do those other “female” things like cooking, cleaning, and attending to their husband’s needs.
A robe is not a smoking jacket.
“In most cases, it would be best for them if they did not marry”
Oooo. Substituting your own subjective morals for the objective ethical rights of others. How very exciting.
It does make one wonder if children born to single mothers are unnaturally or perhaps supernaturally produced.
davidm wrote: “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. ”
*****
Not all married couples “naturally produce offspring.” Not all married couples choose to have children. Should such marriages be dissolved because they don’t produce the children that help “create other family relationships?”
Davidm2575
Make up a word than, if you don’t like two homosexuals getting married or a guy having more than two wives, as long as there are equal protections under the law and equivalent to what married couples have.
I don’t think that they would really care what the word is, as long as they have equal protections.
You never no, they word gay caught on, as now being homosexual, a classical liberal is now a libertarian and a socialist is now a liberal or progressive. Some people that think they’re progressives or liberals are really fascists.
Skip wrote: “I don’t think that they would really care what the word is, as long as they have equal protections.”
This is not true. They already have those equal protections in California under Domestic Partnership. I posted in another thread a link to a Supreme Court of California opinion making it clear that all the legal protections afforded same sex unions under their Domestic Partnership Law are identical to marriage. That is not enough. Their objective is to destroy the institution of marriage, which is done by changing the legal definition of marriage and basing it upon contract law.
I also linked in another thread to a YouTube video where a homosexual activist named Masha Gessen says that the institution of marriage should not exist. She says that homosexuals lie about what they want to do with the institution of marriage when they get there. She wants the law to acknowledge multiple parents. Through her various marriages, she has three children with five parents total, one of whom is her brother (she is married to a lesbian who has a child by her brother). She wants the legal system to recognize this family arrangement. She does not believe this is possible with the institution of marriage. Gessen is a well known gay activist who has fought for gay marriage from the beginning and was among those first married in Massachusetts when they changed the law there to allow gay marriage. Here’s the link to the YouTube video.
http://youtu.be/n9M0xcs2Vw4
“I don’t go snooping into the private lives of people who comment on this blog. I let their words speak for them.”
Yep.
davidm2575
1, December 29, 2013 at 11:30 am
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?
*****
You’re telling me who I’m talking about. You presume to know my thoughts now? What have your discussions with “my colleagues” got to do with the comment of mine that you quoted?
I have no idea what kind of businessman you are. I don’t go snooping into the private lives of people who comment on this blog. I let their words speak for them.
Elaine M wrote: “I don’t go snooping into the private lives of people who comment on this blog.”
Neither do I. The problem is that someone is lying about me, and you believe the liar.
If you line up with your buddies who speak disparagingly about me, you are as guilty as being the passenger of a car being used by your friends in a bank heist.
No, David, it wasn’t. I’ve never told anyone in this forum publicly where I went to school and when. So keep lying all you like. It’s a shovel of your own making.
Bron,
The banksters of Wall Street and some of the financial instruments they created helped to devalue the pension funds of millions of Americans.
*****
The Guardian March 20, 2002
Enron: capitalism in a nutshell (Part 5):
Ripped off at work, ripped off in retirement
by Anna Pha
http://www.cpa.org.au/z-archive/g2002/1084en1.html
Excerpt:
“It’s unconscionable that hard-working, dedicated workers were forced to
sacrifice their life savings to prop up a failing company”, said Edwin
Hill, President of the International Brotherhood of Electrical Workers
(IBEW), testifying before the Senate Commerce, Science and Transportation
Committee in December 2001. “Those who ran the company into the ground
certainly aren’t wiped out financially — just the workers who made their
success possible.”
“Little did those of us working hard every day to make the company
successful know what was going on at the top of Enron”, Bob Vigil, an
electrical machinist working foreman, told the Senate Committee.
“We trusted management’s glowing reports of strong financial growth and
opportunity. Then in October 2001, Enron’s house of mirrors came crashing
down.”
Bob is one of almost 1000 members of IBEW Local 125 who worked at Portland
General Electric (PGE) in Oregon, which was taken over by Enron in 1997. He
worked there for 23 years. The shares in his retirement savings account
automatically converted to Enron stock at the time of the takeover. Now
they are almost worthless.
Tragic losses
Bob Vigil gave examples of some of the devastating losses suffered by other
PGE workers:
Tim Ramsey, age 55, 33 years with PGE, lost US$995,000;
Roy Rinard, age 53, 22 years with PGE, lost US$472,000;
Al Kaseweter, age 43, 21 years with PGE, lost US$300,000 plus,….
“There was a time not so long ago when we all thought [Enron CEO] Ken Lay
was just the most wonderful person in the world”, said Shane Yelverton “but
now we’re hearing all this stuff: that he was selling off stock, even while
he was telling us not to sell our stock. It’s disgusting.
Obviously “wanting it to end” was not what you really wanted, nick.