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.
——————————————-
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,
Here’s an example of the type of greed and unethical behavior that I am referring to. My husband knew Greg Conigliaro and had done business with him. He was completely taken aback when he heard what had happened when this businessman and his family branched out into pharmaceuticals.
*****
Spotlight Put on Founders of Drug Firm in Outbreak
By ABBY GOODNOUGH, SABRINA TAVERNISE and ANDREW POLLACK
Published: October 24, 2012
http://www.nytimes.com/2012/10/25/health/with-meningitis-outbreak-a-spotlight-on-family-behind-compounding-pharmacy.html?_r=0
Excerpt:
A $4.2 million, four-bedroom Boston penthouse overlooking the Charles River in the Back Bay neighborhood. A $3.5 million home in Southborough, Mass., with more than 11,000 square feet, a home theater and an indoor saltwater pool. A $2.35 million vacation home on Cape Cod.
For the Conigliaro family of Massachusetts, owners of these properties, the past decade had been one of business success and rising personal prosperity.
Starting with a recycling company created by one brother in 1990, the family branched into pharmaceuticals, riding changes in the health care landscape to become a major supplier of tailor-made drugs to hospitals, clinics and doctor’s offices across the nation.
But those family enterprises are now under intense scrutiny by federal and state authorities and personal-injury lawyers. A pharmaceutical compounding company that is part of the family portfolio — the New England Compounding Center — was the source of a fungus that led to a meningitis outbreak that as of Wednesday had killed 24 and sickened 317.
*****
Owners drew $16m from pharmacy tied to deaths
By Todd Wallack
GLOBE STAFF
JANUARY 22, 2013
http://www.bostonglobe.com/metro/2013/01/22/new-england-compounding-center-paid-owners-more-than-million-last-year/AuUj6S3Kz76GyOkQrM8C7M/story.html
Excerpt:
The owners of the Framingham pharmacy blamed for the fungal meningitis outbreak that has killed dozens of people and sickened hundreds more pulled millions of dollars out of the company in the last year.
Bankruptcy records show the four family members who cofounded New England Compounding Center received more than $16 million in wages and profits from the firm from December 2011 through November 2012 — roughly equal to half its sales during this period.
The filings also show the family members racked up $90,000 on corporate American Express credit cards, including charges made after the company shut down in early October. The company filed for Chapter 11 bankruptcy just before Christmas.
An attorney involved in the bankruptcy case said he felt “shock and amazement” when he saw the list of payments for family members.
“It’s tremendously unusual,” said William R. Baldiga, a partner at the Boston law firm Brown Rudnick who is representing the committee of unsecured creditors owed money by the company, including people who were sickened by the company’s drugs. “This is not a large company.”
That’s not how the burden of proof works, even in argument or debate, David.
You made the claim. You provide the proof. Or else you’re asserting we should take your claim as true absent proof. “Because I say so” is ispe dixit reasoning and fallacious logic.
Since you seem to think you know where this non-existent proof is?
You provide it.
Or there is no choice but to consider your claim unreliable and untrue.
That’s how proof in debate works.
Bron,
What Elaine said plus you keep ignoring that the social compact works by limiting absolute freedoms in exchange for mutual benefit. I’ve always said that maximizing liberty is a goal in finding that balance. The problem isn’t that I don’t value or believe in individual liberty as you suggest. I just understand that it cannot be as wide as you may prefer and maintain a stable civilization. In a perfect world, where everyone was a good actor? Your positions would hold more merit. But that’s not the world as it is. Until our species either goes extinct or evolves out of the competitive/predatory mode of behavior and into something more truly cooperative, your vision of society would allow the predator to win. Homo homini lupus. It’s what we are as a species despite some individuals being more advanced than that.
“davidm,
Upthread you claimed that some of the people who frequent this blog had been calling for you to be banned. I don’t recall anyone suggesting that you should be banned from this blog. Maybe you can provide more specifics about the calls for you to be banned???
P.S. A number of regulars even complimented you on a number of occasions on the way you presented your arguments.” (Elaine)
I kept waiting for his response to your request for specifics as I could not recall any calls for banning him… still waiting.
Bron,
Where’s the proof that people called for him to be banned?
I’m not a Bond fan but he was great in Defiance
Elaine:
I am pretty sure some have called for him to be banned based on his ideas about homosexuality.
Bron,
I believe in personal responsibility. Yet, I understand that many hardworking, responsible people come upon hard times through no fault of their own and may need a helping hand to get them through difficult days.
Blouise,
It ain’t easy being green–except for the fact that it’s the color of money!
Gene H:
I am not upset because my belief in individual liberty holds up just fine. Individual liberty means both political and economic freedom.
That means personal responsibility as well. Something progressives/lefties dont believe exists.
davidm,
Upthread you claimed that some of the people who frequent this blog had been calling for you to be banned. I don’t recall anyone suggesting that you should be banned from this blog. Maybe you can provide more specifics about the calls for you to be banned???
P.S. A number of regulars even complimented you on a number of occasions on the way you presented your arguments.
Oops! That whole burden of proof thing strikes again.
______________
Blouise,
Only with envy for Daniel Craig for marrying my Rachel Weisz. Curses on you, Bond-boy! (not really, a huge fan truth be told, you lucky dog you)
davidm,
“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.”
*****
Where did Gene reveal that information publicly? Where did Oky see that information “practically verbatim?” I have a good memory, too. Yet, I don’t recall Gene ever disclosing that information. If you say Gene revealed that information publicly, the onus is upon you to provide proof that he did.
Elaine M wrote: “I have a good memory, too. Yet, I don’t recall Gene ever disclosing that information. If you say Gene revealed that information publicly, the onus is upon you to provide proof that he did.”
Despite the guilty until proven innocent motif expressed here, nobody has asked me to defend myself on this matter. There is no trial. In addition, I do not have the time nor inclination to prove this. Even if I was able to find it, he would just switch topics to be about something else. That is the way it always works here. Facts don’t matter. And clearly he would still not want the information to be published again anyway, so there is no reason to waste the time doing any searching.
Do you remember the thread where Gene erroneously claimed that he was more educated than me? I think that was the time frame if you want to look for yourself.
David,
Searched the entire thread you mentioned and couldn’t find what you said was there. This only reinforces that you are using “the big lie” technique developed by your spiritual mentor Joseph Goebbels.
For the longest time I thought he was green.
You don’t need to know, David.
Only our host needs to know as being a GB carries the requirement of using your real name. You, however, hide behind anonymity like a shield. It is your right to post anonymously. It is even a legally protected right to engage in anonymous political free speech. It is your right and if anyone posted, say, your real name, where you live, what business you own, where from and what your degrees are in or any other personally identifying information here about that you did not choose or consent to share? I would be on them in a heartbeat, taking the same action against them as I did against you when you chose to violate the policy here. That you choose to use that right of anonymity to shield you from consequences of having beliefs that can best be described as extreme and might harm your business or interpersonal relationships is your failing of character. That you do so out of manifest frustration that your positions are regularly dissected and exposed for what they are speaks volumes as well. If you had a good argument, you should be able to persuade others with it. You have not. And you then sought to gain advantage by any means possible. Tsk, tsk, tsk.
I stand by my arguments and positions and I do so openly.
You cannot say the same. That does not remove your right to do so as is your choice (that thing of mine which you violated) and I would and will stand by and protect your right even though you have violated mine. Again – the information you revealed was not made public here by me or with my consent and I, our host and all the GBs know this is simply fact. Your denials notwithstanding. Or would you care to show precisely where I gave out said information here? Or, as Elaine as asked, reveal how you came by information we all know for a fact not to be revealed here by me let alone with my consent?
But save your sanctimony and false martyrdom.
It’s tiresome and, worse, transparent.
“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)
I came to this blog about a month after you … I have no idea where Gene went to school.
Elaine, for whatever reasons, my replies to you are not going through. Sorry.
Goody …. I have been sitting back and reading and laughing but finally something I can comment on:
“Elaine, when our wombs are out of commision, we should just fling ourselves on the pyre, it seems.” (annieofwi)
*****
“Yes…onto the pyre–along with uppity women who dare express their opinions and who believe they should not be subservient to men!” (Elaine)
*****
Does that mean that as soon as the womb gives up, we can get a divorce, grab 50% and take a cruise?
Bron,
Control is an illusion. The ideas that count and what says more about a person’s character than the ideas and ideals they espouse? Only action. If you’re upset that certain ideals don’t withstand scrutiny or make others think unfavorably of you, again, perhaps the positions should be revisited.
Bron,
The Scam Wall Street Learned From the Mafia
How America’s biggest banks took part in a nationwide bid-rigging conspiracy – until they were caught on tape
By Matt Taibbi
6/21/12
http://www.rollingstone.com/politics/news/the-scam-wall-street-learned-from-the-mafia-20120620
Excerpt:
Someday, it will go down in history as the first trial of the modern American mafia. Of course, you won’t hear the recent financial corruption case, United States of America v. Carollo, Goldberg and Grimm, called anything like that. If you heard about it at all, you’re probably either in the municipal bond business or married to an antitrust lawyer. Even then, all you probably heard was that a threesome of bit players on Wall Street got convicted of obscure antitrust violations in one of the most inscrutable, jargon-packed legal snoozefests since the government’s massive case against Microsoft in the Nineties – not exactly the thrilling courtroom drama offered by the famed trials of old-school mobsters like Al Capone or Anthony “Tony Ducks” Corallo.
But this just-completed trial in downtown New York against three faceless financial executives really was historic. Over 10 years in the making, the case allowed federal prosecutors to make public for the first time the astonishing inner workings of the reigning American crime syndicate, which now operates not out of Little Italy and Las Vegas, but out of Wall Street.
The defendants in the case – Dominick Carollo, Steven Goldberg and Peter Grimm – worked for GE Capital, the finance arm of General Electric. Along with virtually every major bank and finance company on Wall Street – not just GE, but J.P. Morgan Chase, Bank of America, UBS, Lehman Brothers, Bear Stearns, Wachovia and more – these three Wall Street wiseguys spent the past decade taking part in a breathtakingly broad scheme to skim billions of dollars from the coffers of cities and small towns across America. The banks achieved this gigantic rip-off by secretly colluding to rig the public bids on municipal bonds, a business worth $3.7 trillion. By conspiring to lower the interest rates that towns earn on these investments, the banks systematically stole from schools, hospitals, libraries and nursing homes – from “virtually every state, district and territory in the United States,” according to one settlement. And they did it so cleverly that the victims never even knew they were being cheated. No thumbs were broken, and nobody ended up in a landfill in New Jersey, but money disappeared, lots and lots of it, and its manner of disappearance had a familiar name: organized crime.
In fact, stripped of all the camouflaging financial verbiage, the crimes the defendants and their co-conspirators committed were virtually indistinguishable from the kind of thuggery practiced for decades by the Mafia, which has long made manipulation of public bids for things like garbage collection and construction contracts a cornerstone of its business. What’s more, in the manner of old mob trials, Wall Street’s secret machinations were revealed during the Carollo trial through crackling wiretap recordings and the lurid testimony of cooperating witnesses, who came into court with bowed heads, pointing fingers at their accomplices. The new-age gangsters even invented an elaborate code to hide their crimes. Like Elizabethan highway robbers who spoke in thieves’ cant, or Italian mobsters who talked about “getting a button man to clip the capo,” on tape after tape these Wall Street crooks coughed up phrases like “pull a nickel out” or “get to the right level” or “you’re hanging out there” – all code words used to manipulate the interest rates on municipal bonds. The only thing that made this trial different from a typical mob trial was the scale of the crime.
USA v. Carollo involved classic cartel activity: not just one corrupt bank, but many, all acting in careful concert against the public interest. In the years since the economic crash of 2008, we’ve seen numerous hints that such orchestrated corruption exists. The collapses of Bear Stearns and Lehman Brothers, for instance, both pointed to coordinated attacks by powerful banks and hedge funds determined to speed the demise of those firms. In the bankruptcy of Jefferson County, Alabama, we learned that Goldman Sachs accepted a $3 million bribe from J.P. Morgan Chase to permit Chase to serve as the sole provider of toxic swap deals to the rubes running metropolitan Birmingham – “an open-and-shut case of anti-competitive behavior,” as one former regulator described it.
More recently, a major international investigation has been launched into the manipulation of Libor, the interbank lending index that is used to calculate global interest rates for products worth more than $3 trillion a year. If and when that case is presented to the public at trial – there are several major civil suits in the works here in the States – we may yet find out that the world’s most powerful banks have, for years, been fixing the prices of almost every adjustable-rate vehicle on earth, from mortgages and credit cards to interest-rate swaps and even currencies.
But USA v. Carollo marks the first time we actually got incontrovertible evidence that Wall Street has moved into this cartel-type brand of criminality. It also offered a disgusting glimpse into the enabling and grossly cynical role played by politicians, who took Super Bowl tickets and bribe-stuffed envelopes to look the other way while gangsters raided the public kitty. And though the punishments that were ultimately handed down in the trial – minor convictions of three bit players – felt deeply unsatisfying, it was still a watershed moment in the ongoing story of America’s gradual awakening to the realities of financial corruption. In a post-crash era where Wall Street trials almost never make it into court, and even the harshest settlements end with the evidence buried by the government and the offending banks permitted to escape with no admission of wrongdoing, this case finally dragged the whole ugly truth of American finance out into the open – and it was a hell of a show.