A Moral Victory: The Sister Wives Case And The Rejection of State Morality Codes

ad611-sister-wives-season-4Below 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

1,098 thoughts on “A Moral Victory: The Sister Wives Case And The Rejection of State Morality Codes”

  1. You mean I won’t be annoying the pig by watching football played with the ol’ pigskin?

    Seems to me the pig is annoyed either way, Bob.

    Not to mention I have no Chiefs here today.

    It is about time to watch a movie though.

  2. Yes, there are some very interesting post above & I saved a few.

    And I almost always like Matt Taibbi’s work Elaine.

    It must have been the flick rate, so I had to look away from some of other post.

    Below is one reason I like Zerohedge because they find the stuff I want to see, just like JT msg bb does.

    Ok, here’s some Dark Humor I can post on this msg bb
    ;

    http://www.zerohedge.com/news/2013-12-29/russia-wishes-nato-happy-new-year-only-russia-can

  3. “However, the worse type of attacks (and frankly the most creepy) is to research someone’s background and incorporate it in such comments.”

    PRECISELY.

  4. Gene,

    Re childless … I know it was the education bit on your end but obviously Jonathan was not thrilled with the “childless” remark … I didn’t want to take “creepy” out of context.

    It is a serious charge made by davidm and supported by nick and strikes at the integrity of the blog and the GBers.

  5. Gene,

    It bears repeating:

    “Never try to teach a pig to sing. It’s a waste of time and besides it annoys the pig.” — Robert Heinlein

    Now, back away from the pig and go watch some football.

  6. hskiprob
    1, December 29, 2013 at 2:45 pm
    Elaine & David,
    Is this personal information in question available anywhere without having to gain permission to acquire it?

    *****

    I couldn’t say. I haven’t gone searching for said information. I’d ask why david felt the need to post personal information about Gene in a comment that he made to you.

    We are respectful of people’s privacy. Some of us have mentioned certain things about/aspects of our lives that we, ourselves, decided to make public on this blog. I have. That doesn’t mean that I wouldn’t be taken aback and troubled by someone posting information about me that I had not made known. That would mean that person did some snooping/”investigating” for some motive/reason known only to that person. I think that would be kind of creepy.

    1. Elaine, what a person does for a job or what businesses they are involved with should not be considered private, unless under national security and even then, I am proud of people who are whistle blowers for having the guts to do it. It is nice to know about people to help figure out why they have such erroneous perspectives. LOL

  7. In all fairness, my complaint was only about the educational information which has not been mentioned by me here.

    I have said that I don’t have children (and in the context that I was glad for it given the state of the world).

    But I think the most salient part of what you quote Blouise is this:

    “However, the worse type of attacks (and frankly the most creepy) is to research someone’s background and incorporate it in such comments.”

    1. Gene H wrote: “In all fairness, my complaint was only about the educational information which has not been mentioned by me here. I have said that I don’t have children (and in the context that I was glad for it given the state of the world).”

      So you admit that you posted this information on the blog, and that it was fair game to include this info in my post?

    2. Gene H wrote: “But I think the most salient part of what you quote Blouise is this: “However, the worse type of attacks (and frankly the most creepy) is to research someone’s background and incorporate it in such comments.” ”

      What is creepy about remembering what schools someone attended twenty years ago? Especially when that someone keeps reminding us of his great education that makes him superior to the rest of us? I don’t get it. Sorry.

      At the very least, you should not boast about your education and credentials if you don’t want us to know about them or repeat them to others.

      Jonathan thought the comments were gratuitous, but he was not involved in the thread to see how you were denigrating someone for their lack of education.

  8. nick,

    I know you are frustrated with me but please take a moment to read Jonathan’s post again and make special note of the following:

    “I was surprised and greatly disappointed in your use of personal information from Gene’s education to a description of this life as “childless.” It was petty and beneath both you and this blog. As you know, we have a civility rule on the blog and do not like any personal attacks. However, the worse type of attacks (and frankly the most creepy) is to research someone’s background and incorporate it in such comments. ”

    If that info was given by Gene on this blog, then no research was needed or done. If Gene or any other GBer deleted that info from this blog as davidm claims and you support, then Jonathan needs to be concerned. If, on the other hand, the info was never on this blog, then the charge itself needs to be looked at with the same concern.

    It’s a matter of integrity … not loyalty.

  9. Bron,

    “H3ll, as a first step I would love to see all business gimmes go and let them survive on their own or not at all.”

    On that, we agree.

  10. nick,

    If you had a comment deleted last night? I suggest you ask the host about it. To my knowledge, no GB has deleted any comment of yours on this thread.

    I did not deny that you were put in moderation as an object lesson about your perpetual bad behavior because that is indeed what happened. You were put in moderation for 12 hours. That’s not deleting your comments. That’s not approving your comments that were over the line aggressive. It’s a subtle but important distinction. And contrary to what you might think, I suffered no repercussion from trying to teach you the error of your ways with a stick instead of a carrot (or indeed smaller sticks as had been used to that point). Not that it worked. Which is why it has not been done again, combined with your relatively good behavior until just recently.

    Also, what I did was point out that David was using his right poorly. Not for chastising him for using that right. That is belied by the fact I noted that it is his right to post here anonymously (and that I would protect that right).

    Really. Do try to keep up.

  11. I’ve said that at least 6-7 times over several months. I’ve said it directly to DavidM. It’s on the record.

  12. DavidM says: I simply stated the truth, that Gene himself made this information publicly available.

    WHERE, exactly? On this blog? On every blog entry, under the name, is a link with the date and time the blog entry was posted. Give us the link, please.

    It is my suspicion you continually use this non-specific language precisely because whatever you found was not on this blog, it was elsewhere and the result of your trying to find some sort of leverage or ammunition with which to make an ad hominem attack on Gene, because you are a prideful egotistical petty little man irritated at being continually bested.

    What Gene makes publicly available elsewhere is immaterial. Show us the link in this bog, give us the date and time. Or admit your lie, that what you claim Gene made publicly available was not made public in this blog.

  13. Two sets of rules, Barney. You disparaged him for using anonymity, that’s against blog rules. That’s what YOU told me. We need Andy to get your mind right. Remember the 3:30-7p CT. please, for Andy’s sake.

  14. Elaine:

    I didnt say that did I. There are a lot of bad actors running businesses, take the GE president for example or the Solyndra president or any other companies who have their hands out to the pot of money in DC.

    H3ll, as a first step I would love to see all business gimmes go and let them survive on their own or not at all.

  15. As the record reflects, I did not know what DavidM allegedly revealed until Mr. Turley posted. I offered to help him find evidence. I do not know if the evidence exists, but merely offered helped to find it. To accuse Gene of deleting comments is not baseless, he has done so for various reasons, and has been admonished for it. A fairly stinging comment I made last night that was responded to by Gene, was then deleted. Gene did not deny the accusation. There’s no denying it was deleted. Gene’s response @ 10:51p last night was directed @ my comment just a bit earlier. Then voila, my comment disappeared. I admire your loyalty, but this has been a load of horseshit. Why don’t you jump on Gene’s ass like you jumped on mine for going to Mr. Turley? A team, B team, and C team horseshit exists here. You’re better than that, but get sucked into the vortex of the power base sometimes. We both see injustice in race, gender, class, etc. As I’ve said MANY times, I don’t agree w/ DavidM on much, but for chrissake, can’t you see the inequity on how people are treated here? Damn, woman!

  16. Apparently you should learn to read for comprehension, nick.

    I explicitly stated that I would protect David’s right to post anonymously and control the personal information he chooses to share here despite his violating my very same right. To wit: “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.”

    So maybe you both should bookmark it. Maybe print it out. Get a tattoo.

Comments are closed.