Constitutional Law, Courts, Criminal law, Free Speech, Politics, Religion, Society, Supreme Court

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.

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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

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

  1. I’ll let the posse know when the Packer/Bear game is over in case there are any infractions in the next few hours.

  2. Tony, Being an atheist, you apparently don’t respect a family Christmas vacation. It could have waited. It wasn’t a felony threat.

  3. Gene,

    With your knowledge and al gore inventing the internet are you two more dangerous than the NSA…..

    Well yeah, sorry you control it I forgot, you can delete anything…. Who killed Jimmy Hendrix…. Marilyn Monroe ….

  7. Nick says: A pow wow was called over where someone went to college on Mr. Turley’s Christmas vacation. Just sayn’

    Diminish it all you want; a pow wow was called over somebody intentionally trying to violate somebody else’s privacy. You don’t seem to think that is a big deal, those of us that value our privacy do. This has become the only blog I comment on because it has a privacy policy, and will both police and ban people for violating it. Minimize that all you want, it is valuable and I’d rather such attempts are nipped as they bud, before they bloom into great harm, even if it means we have to lose the perspective of the petty, vindictive, lying bullies that violate it.

  8. Well nick, I guess I’ll just have to muddle through life without your approval. I’m terribly disappointed you don’t admire, respect or trust me. I’ll just make do with the admiration, respect and trust of my family, friends, co-wokers and, yes, even fans.

    And by “terribly disappointed” I mean “completely indifferent”.

  9. Blouise, I neglected to include, but it was implicit, I do care what you say about me.

  11. Help! If this longer than usual comment is eaten. Thanks for your anticipated assistance. Blouise, I do not know the facts of this situation. This was my business. I read people yesterday making assertions like, “I never heard that from Gene” and considering that dispositive. Well, as an investigator I know those assertions, “I never heard that”, no matter what kinda case, are horseshit. They’re worth a bucket of warm spit. I STILL don’t know the truth here. It was not until last night did I learn of the alleged transgression. I’ve done no research because DavidM didn’t ask me to. I offered, he deferred. When I read the childless thing I KNEW that was a non issue because I have said it @ least a couple times and Gene never threw the penalty flag. He sure as hell would of it was an issue

    Blouise, I’m not sure of your take on my “supporting” DavidM that the info WAS taken off. My recollection was I said to David, “assuming” the info was not deleted,, and I stand by that. However, the record of what I said will speak for itself. I’ll simply say Gene’s double speak about “moderations”of me is just that. He has deleted me on @ least 4-5 instances. I can’t prove it because they were deleted. You can’t prove a negative, and he knows that. You admire, respect, and trust Gene. I don’t. There’s the rub. We agree it is a matter of integrity. I don’t know if DavidM is correct or Gene is correct. I do know from my years as investigating that both can truly believe they’re correct and maybe both pass a polygraph. That is a scenario most people don’t understand, but I do. I’ve worked many cases where both witnesses, parties, etc. believed what they were saying was absolutely true. They weren’t sociopaths, they were good, honest people, who saw a situation, accident, conversation, incident, in polar opposite ways.

    Finally, since it’s agreed that while “childless” was a big deal to Mr. Turley, it was not to Gene, and that’s all that matters in that regard. So, it comes down to where someone went to school. WTF?? Do you set up a conference call or chat on a Christmas vacation over that? That’s why I felt compelled to mention the Bears/Packers game today. I think you get that!

    You mocked me over contacting Mr. Turley when I was being called a liar. I get mocked, ridiculed, condescended to by people I wouldn’t piss on if they were on fire. I give a rat’s ass what they say. I believe we have moved past that. Holding grudges shortens one’s lives. At our ages we need every freakin’ day. I emailed Mr. Turley on a regular work day and I was mocked. A pow wow was called over where someone went to college on Mr. Turley’s Christmas vacation. Just sayn’

    1. “Blouise, I do not know the facts of this situation.”

      B.S…..like you always so foolishly do, you saw an opportunity to attack Gene and you took it. As with almost all of your production here Nick, you let your angry nature precede the little common sense you have. Also as usual you don’t have guts to admit you screwed up again and thus compounded it with ridiculous charges about deletions. Some of us just can’t escape the destiny predicted by our lack of self control. Now Mr. PI the archives are readily available and with you self professed skills go for the proof of David’s lies.

      As for “A” team “B” team you’re right there is one here. However, the “A” Team consists not of just the GB’s, but of many, many more people, who incidentally are from different backgrounds politically. Gary T. for instance is on the “A” Team and he is a real Libertarian, not a pretend “wannabe.” Bron is on the “A” Team as well and he and I disagree on most things. He’s spent much time here and has sincerely shown himself to be capable of constructing logical arguments and also I know personally in my times of poor health he reached out on the blog to wish me well in a sincere manner.

      Getting on the “A” team here Nick is quite simple. All one has to do is write interesting comments and ably defend the positions they take. You’ve been too lazy to do that and so that is why you so far have remained a scrub. In what appears to me to be laziness on your part, you do seem to have some intelligence, you came in here using bluster to make a name for yourself. It was obvious, you were called on it. and you’ve been bitter ever since. The person who lacks self-awareness always blames their failures on others. You have met the enemy Nick and it is you.

  12. That’s right, Elaine. I forgot that I secretly control the Internet! Muahahahahahaha! The very thought of all that power is making me dizzy. 😀

    Hey? Anyone want to know who really killed Kennedy? Where the UFOs are? I got it all.

  14. David,
    FWIW, it is my opinion that stuff should not be dragged from one thread to the next. Especially personal stuff. If I post something in a thread last year, and somebody brings it up in this thread without asking me first, I will be on their case like a burr on a sheep. That is actually a formal rule in some other blogs. It keeps old feuds from being rekindled. I think that is a good thing.

    So….if Gene wrote something a while back, what is the deal with going back to dredge it up? Frankly, I know how to use search features as well. I don’t use those skills on this or any other blog for a couple of reasons. First, snooping for dirt is a waste of my time. Second, anyone who does that comes off looking like a petty, and possibly vindictive, snoop. Thirdly, I don’t really care.

    In your own case, you have repeatedly taken various positions on race, wealth, sex, and domestic relations. If that is used in a discussion with you, it is not dredging up old stuff, because you use it repeatedly. If somebody let something personal slip unintentionally weeks ago, that is a different matter entirely.

    This is an issue that has caused at least one regular commenter to abandon this site in just the past few days because of lack of trust, fearing that personal information will be leaked or used for nefarious purposes. If you want to find out who is worth more to this blog, you or somebody else, just keep pushing the matter. You might not like the answer.

    1. OS – I know your real name, your approximate age, and the name of the college from which you received your Doctorate. I remember the year you received your Doctorate because it was the same year my family moved to Mississippi. I don’t think that I am a creep for knowing these things. I grew up in Mississippi as a boy, and I received my first college degree from the University of Southern Mississippi in 1982. Because of that life experience, I have a kindred feeling toward you. I remember that we discussed some of this information before, but there was none of the drama that we now witness. Now I am afraid to mention your name or to mention any of your Alma Maters. I am even afraid to mention your profession. This is what seems weird, creepy and uncomfortable to me. A blog that considers your Alma Mater to be private information that cannot be mentioned under threat of banishment? A hard rule rather than a soft rule? Very weird. It is what it is, but I personally find this rule more creepy and weird than my taking notice of a person’s educational background. I will abide by the rule nonetheless for as long as I decide to frequent this blog because that is the rule of the blog.

  16. What’s gratuitous is lying about where you got the information.

    It wasn’t here, David. It wasn’t from me. It wasn’t disclosed with my consent.

    Don’t try to distract from the issue at hand. It’s not that it was secret information. It’s not that I’m ashamed of where I went to school (quite the opposite). It’s that you revealed personal information here about me that I had not revealed here nor did I give you permission to reveal it here. That’s the policy you violated.

    How would you like it if I revealed your real name? Your business name? Where it’s located and the phone number? You haven’t revealed any of those things here about you and you haven’t by choice.

    You’d be madder than Hell if I did that.

    So. You got some proof I gave details about my education here, on this blog? Or not?

  17. Hard of reading?

    I did not and do not take issue with the childless part of the comment. Like I said, my complaint was only about the educational information and for the very reason that it was disclosed without my permission, was a policy violation and constituted “the worse type of attacks (and frankly the most creepy) is to research someone’s background and incorporate it in such comments.” That is why I said it wasn’t part of my complaint with your comment: it wasn’t.

    However, you have yet to find where I disclosed the details of my education on this blog.

    I posted a link to the Wayback Machine to get you started.

    Like I said, it doesn’t exist because it never existed. Which still is a problem for you. Because that would mean your evidence is non-existent and your testimony is to be viewed as unreliable, untrue until proven and ergo untrustworthy.

  20. Bron: As I stated before, and truthfully, the car I drive has a bluebook value of about $2000. I did buy it new, and it has been a fine tool, I have had no reason to buy a replacement. My wife’s car is seven years older and has a BB value of about $500. I have made it clear after various automotive incidents we can afford a new car, but she loves her car like a pet.

    We make no public display of wealth or status. Not cars, watches, clothes, jewelry, or handbags. We both find ostentation uncomfortable, pretentious and pointless. I have no desire to arouse jealousy or envy in anybody.

    Inside the house — well, that’s a different story. 🙂

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