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
My birth certificate lists my father as someone other than my father. Apparently my mother just made up a name so that it would be difficult or impossible to know who my biological father was. He never contacted me and though he was very well off, he never sent me a dime. Maybe he had an agreement with my mother because she claimed to be my aunt up til the day of my wedding. Neither left anything to me in their will. Both had valuable assets, just not the normal human kind.
rafflaw:
Many men have their names on the birth certificates of their progeny but do not financially support those children. Maybe they can’t. Maybe they just don’t.
Nick and Bron, I’m pretty sure all those people at a lynching were “neighbors”.
And oh yeah, sure, there were thousands of Mississippians protesting those Jim Crow laws just as all those men were going on hunger strikes in hopes that women would get the right to vote. And just look at all those “neighbors” screaming at the kids intergrating that school in that famous photograph.
You two are in another universe. But hope you both get your wish and get to live in a country without a government. (Gee. Do you suppose all those folks who are hoarding all those guns ALSO look forward to the days of no government?) Happy Trails.
pdm, No, all the folks with guns are hoping for the day when they won’t need their guns to protect themselves from the tyranny of their own government. That they will only have to concern themselves primarily with fending off ordinary criminals which numbers should be reduced because government is no longer usurping their rights and even those who contemplate criminal activities, will be better off for it.
We will than be able to organize militias, as we did against King George, to protect our land and people from foreign and domestic enemies, without the fear of the ruling oligarchy using standing armies for political and imperialistic reasons. You want to stop the many wars and the military industrial complex. This is how you do it and why our founding fathers installed the 2nd Amendment.
If people think their ideas are so good, then you should be able to get enough people to voluntarily participate using persuasion instead of force and coercion. It is the force and coercion that is wrong and why so may resist. If you can create a political system that provides for the voluntary association of people, you will have millions of followers.
The idea that you can expect any political system and its so-called representatives to protect individual rights, when they have, throughout the history of mankind, “constantly” usurped them, takes a much greater leap of faith than any individual has the legs for.
When you legalize the initiation of force and coercion, what type of people do you think your going to get in power, Saints? No, sociopaths, liars, scammers and fascists and there is a long history of their convictions as evidence of this fact. Ninety percent of the words out of just about every politicians mouth is a lie.
You think the rich are bad and are the cause of what is wrong in our world, Just study the history of Chicago and New Orleans political history and you will see what is really wrong with our world. Also remember, there is huge difference between just being rich and being part of the ruling oligarchy. Many pro athletes are rich, but they are not part of the ruling oligarchy. Tiger Woods may suffer from some infidelity, but he is not an evil person. Dick Chaney and George Bush in my opinion are however.
Most people in government are first and foremost trying to protect their own self interests and thinking that this system and the people it attracts are going to protect individual rights, is unsupportable from every known human concept. Socialism and Communism doesn’t work for many reasons and ignoring the multitude of reasons will not make them go away.
It’s not that you cannot get socialism and communism to work for a period of time, it is that it has always failed every society over the long term. The various political systems of the world used force and coercion to maintain the legalized slave trade, and finally enough people fought back to change it. The Citizens have been fighting against the tyranny of government for thousand of years. To stop now is a big mistake.
Do not acquiesce or fall for the lies, misinformation and memes put out by the ruling oligarchy and the main stream media they control. Fox News, CNBC, MSNBC, CNN, ABC, NBC, & CBS, New York Times, the Washington Post and just about every major newspaper and periodical in our nations. Even Comedy Central attempts to persuade our world into exception socialist and communist policy.
How could so many people in media be wrong. Part of if is ignorance and part of it is looking out after their own self interests, knowing that there is not much they can do anyway to change the system. The do what they are told, they don’t make waves and the get paid very well for their services. How much does someone like John Stewart earns to do his silly yet humorist rants?
Why don’t more respected legal experts use this same kind of reasoning to call for an end all victim less crimes? You know – drugs. prostitution. gambling etc.
Must be a good, rational, logical reason, right NPRers?
Dredd,
Notice how davidm2575 also observes that that the meaning of bigamy has been changed by our esteemed professor. davidm2575 quotes the OED. I now use wiktionary which squares with my recollection of Websters, etc. OED apparently defines bigamy as having two and no more plural marriages, one man and two women or one woman and two men. But Jonathan’s usage, even if modern, departs from the traditional meaning.
Hi Dale. Not only bigamy, but the meaning of the word “marry” also is being altered by this opinion. Previously the Utah Supreme Court has interpreted “marry” to mean either state sanctioned or non-state sanctioned marriage. This opinion puts a more narrow view upon the word “marry” by relying upon a dissent opinion of the Utah Supreme Court.
An interesting analysis is offered by a Orin Kerr who is a colleague of Jonathan’s at George Washington University. He blogs over at the Volokh Conspiracy and summarizes this opinion in the following manner:
“In other words, as reconstructed by the court, people who are married by the state already can’t get married a second time. But people who are already legally married are allowed to live with other people as if they are married to those other people, and to hold themselves out as being married to those other people, as long as they do not try to get married to those other people. At least, that’s what I think the court is saying. This isn’t an easy opinion to decipher.”
http://www.volokh.com/2013/12/14/district-court-strikes-down-and-reconstructs-bigamy-law/
My concern is that the twisting of the English language in order to accomplish political and legal changes smacks of some level of knavery concerning the true morality value of the actual underlying behavior.
davidm2575
It just goes to show you, even the words and terms of society are at the whim of those in power at the time. It is the essence and reality of government.
First of all, government should not be involved with anything except the protection of individual rights. I see no where in the Constitution where I’m required to get a government authorized marriage license. I have not married the one I love because I refuse to render to an unconstituted government. I suggest we all follow the actions of passive resistance, when we can garner the guts to do so.
Zari,
Having only one marriage license does not prevent the biological father to be on any and all birth certificates and therefore legal financial responsibility for all of his children.
Professor, I might also point out your shifting definition of the word “bigamy.” The OED defines bigamy as “the act of going through a marriage ceremony while already married to another person.” Wiktionary defines it as the state of having two (legal or illegal) spouses simultaneously. Notice how it recognizes “illegal” spouses (spouses not recognized by law but perhaps recognized by religion). Now you choose a rather narrow definition of bigamy as having two or more marriage licenses.
Why is it that almost all these changes in laws regarding sexual morality involve hijacking words of the English language in order to change their meaning and usage? Gay no long means what it use to mean. Marriage no longer means what it use to mean. Morality no longer means what it use to mean. Now bigamy no longer means what it use to mean. It is almost like the tactic is to change the meaning of language in order to create enough confusion or doubt about what is being talked about so as to change the laws.
HumpinDog,
I wonder what Twain’s wife thought of Mormon men?????
Utah: Fly over and flush.
Of American Values and Mormon way: Never The Twain Shall Meet.
Mark Twain on Mormon Women – 1861
“I am not given to exaggeration, and when I say a thing I mean it.” Page 85
Roughing It – Chapter 14, pages 97-98
Our stay in Salt Lake City amounted to only two days, and therefore we had no time to make the customary inquisition into the workings of polygamy and get up the usual statistics and deductions preparatory to calling the attention of the nation at large once more to the matter.
I had the will to do it. With the gushing self-sufficiency of youth I was feverish to plunge in headlong and achieve a great reform here—until I saw the Mormon women. Then I was touched. My heart was wiser than my head. It warmed toward these poor, ungainly and pathetically “homely” creatures, and as I turned to hide the generous moisture in my eyes, I said, “No–the man that marries one of them has done an act of Christian charity which entitles him to the kindly applause of mankind, not their harsh censure–and the man that marries sixty of them has done a deed of open-handed generosity so sublime that the nations should stand uncovered in his presence and worship in silence.”
Mark Twain’s conclusion was validated independently.
Liberty Weekly Tribune – April 17, 1863
Bron, Bingo. I was talking about people..neighbors. Many people think only the government can make us more civilized. I say government is needed, but there’s a tipping point where it becomes a creator of dissension, distrust, incivility, not being neighborly, etc. We have reached that tipping point where government is a liability, not an asset. A recent Gallup poll says 72%, let me repeat that ..72%, of US citizens agree w/ that.
pdm:
wasnt most of that done by government?
Nick, More neighborly?
Jim Crow, orphan trains, child labor, no women’s sufferage, warehousing of the mentally ill, Tuskegee experiments, school segregation, Native American relocation, anti-Semitism. Guess it sorta depended on who your neighbors were.
I am what might be described as a flaming liberal.
That said, I have no problem with the concept that morality is the basis of our laws. In fact, I don’t know what else would be a better basis for laws than some concept of human decency, respect and fairness — all of which are part of morality.
What we need to recognize is the need — from time to time — to take a look at what we view as moral, since opinions on morality can and do evolve and change over time.
But if we do away with concepts of morality as a basis for lawmaking, what should we substitute?
Should we now allow fathers to rape their young daughters because creating laws that do not allow fathers to rape their young daughters is a moral judgment on our part?
What if some group of men form a cult or “religion” declare their “religious” right to beat their wives and children? Is that okay? Most of us find it repugnant that Sharia law permits such behavior; we make a moral judgment and write laws forbidding it.
What if some parents decide to sell their young daughters to sex-slave traders? Does your sense of morality find anything wrong with that? Should we write laws forbidding the sale of our children and if so aren’t we making a moral judgment?
A plural marriage is nothing more than a modern day version of a man with a harem: the women live to serve and please the man, the man has sexual relations with the women based on his own pleasure schedule while the women’s sexual needs or desires most often are not deemed relevant. If the man in a plural marriage decides he no longer wishes to have sex with one of his “wives,” she becomes in reality a maid with no legal rights. If the man decides he is tired of one of the later wives (not the one with a marriage license and wedding certificate) and wants her out of the house, does she have any legal right to alimony or child care or training so she can become self-supporting?
I don’t give a hoot what men and women decide for themselves, but women in a plural marriage are kidding you and deluding themselves if they think they are in a good place.
Zari:
wouldnt making it legal prevent that from happening? Also couldnt the state go after the “deadbeat dad”?
What implication does this have for Sharia Law?
@ProfTurley: “…polygamists who traditionally have one official marriage license and multiple spiritual licenses. …This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises.”
My objection to this legal “victory” is not on moral, but financial grounds.
Every one of these polygamist “families” – at least here in Arizona – is supported by the taxpayer. Because the “spiritual wives” have no legal husbands and the children have no legal fathers, they successfully apply for, and receive, aid to dependent children, food and housing subsidies, and health care. How is taking hundreds of thousands of dollars from the state and federal governments to support this religious, personal life choice of pursuing liberty and happiness not a criminal enterprise?
Zari wrote: “Because the “spiritual wives” have no legal husbands and the children have no legal fathers, they successfully apply for, and receive, aid to dependent children, food and housing subsidies, and health care. How is taking hundreds of thousands of dollars from the state and federal governments to support this religious, personal life choice of pursuing liberty and happiness not a criminal enterprise?”
Is your main objection because it is a religious reason? The Black community has about 70% of children being raised this way. They basically do the same thing, but without a religious reason. It is cultural. Do you object to them also doing this? There seems to be a big problem with the law.
Maybe government would do better to help make sure people take care of their relatives and of their own rather than creating social programs that are abused. It should give organizational assistance and tax breaks to non-profits to create a social safety net and do less redistribution of wealth.
Congrats again Professor.
Professor, I found your article here rather confusing. You are using a rather narrow definition of the word “morality” without offering us your definition. Most dictionaries still define morality as principles concerning the distinction between right and wrong or good and bad behavior. It appears that you are narrowing the definition of morality to concern itself only with crimes against oneself rather than crimes against others (e.g., morality concerning most forms of sexual behavior). The problem is that the dictionaries have not caught up with you on this peculiar usage.
Following is an article about the definition of morality put out by Stanford Encyclopedia of Philosophy:
http://plato.stanford.edu/entries/morality-definition/
It clearly includes a code of conduct put forward by society. Your article of faith outlined above (“the belief that morality is better left to parents than to politicians”) seems to be at odds with this kind of philosophical backdrop. Would you not agree that the law should present a clear moral code of conduct for all of society?
davidm2575 – I have chosen to separate the distinction between ethics and morality. As individuals we each have our own moral code. The code that each of us chose to live our lives by. For instance, I choose to not take pharmaceutical drugs because they almost all have various contraindications and I choose not to date more than one women at a time. I have a bunch of other codes that I live by.
How I treat others I consider to be ethics. As long as I do not harm other or their property, I should be left to do as I choose as they should be. I believe that it is impossible to have any sort of moral code for society. They’re are just to many individuals that have to many different moral codes to extrapolate and more important prove that a specific moral code is good or bad for society.
Of course we can always continue to fight it out in the politically arena but I choose to protect individual rights and let people pursue their own happiness.
Skip wrote: “I have chosen to separate the distinction between ethics and morality.”
The problem with doing this is that when you choose to have your own definition of words and then proceed to force that upon everyone else, none of it lines up with how the published dictionaries use the words. For example, the OED defines Ethics as “moral principles that govern a person’s or group’s behavior.” Certainly there are connotation differences in how these words are used, but the term “moral” has traditionally always been the broader meaning. Now we have legal professionals like Gene H and Jonathan Turley deciding on a very narrow meaning for the word moral, basically divorcing it from law making completely. That is just plain weird.
Skip wrote: “How I treat others I consider to be ethics.”
You have a personal code of ethics. Fine. But trying to say that the term “ethics” refers only to you personal code of ethics for how you treat others is inappropriate.
Skip wrote: “They’re are just to many individuals that have to many different moral codes to extrapolate and more important prove that a specific moral code is good or bad for society.”
Certainly the law should not micromanage all our affairs. We cannot bear that. But some laws can be agreed upon, such as not murdering your neighbor, not stealing from you neighbor, not lying to your neighbor, etc.
Speaking of Roe vs Wade, how cool would this be to have the decision placed into a constitutional amendment whereby any challenge to this law, now and forever, must be dismissed by any and all courts of law.
Would this be possible??? On this issue. I think it is one of the rare court decisions, that has effectively dealt with this very complex and difficult subject. It is in my opinion as important as the 1st Amendment and we should take the time and energy to place this into law for all the world to see and hopefully follow. It would than take another constitutional amendment to repeal it and I don’t thing that this would every happen.
The question is, do we have the ability to enshrine it into history.