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
nick,
I realize that (care) and am thus always straight with you … don’t worry when we disagree … it’s healthy.
Gene Goebbels, You told me to STFU and I called you on it today and @ least one other time. I have never said it to anyone, and if yours didn’t show up you’re a deleting liar, you and I know it. You told me to STFU early in my tenure here. If it’s not there, then DavidM is looking better.
“Gene Goebbels”
A startling lack of creativity Nick………no wait I take that back…..not startling at all…..merely pedestrian and expected.
“Tony C.,
This is not the first time “something has happened” on this blog while Jonathan was on vacation. Some people like to push the envelope while our blog host is away from home.” (Elaine)
That’s the truth!
The “prison boys” are still my favorites.
A Happy New Year to you too, kiddo. We will be going to an early family dinner but then home to a quiet evening by the fire. For the first time in years we will not have a child or grandchild with us. The 5 year old is now old enough to stay with the other kids at her parents’ party. Although we turned down an invitation (as we always do because we’re old) to join them, I will be sending my 3rd Elaine’s Almond Cake of the season in our stead.
Bron,
I do agree the corruption in government results in gross misspending in general, although I do see utility in some things like the NEA. You also have to keep that kind of social spending (especially on the humanities) in perspective. It’s a pittance compared to what is wasted on needless war and corporate subsidies. Still, there is waste in that area as well. I’m all for a more efficient and less wasteful government in addition to a less corrupt and more accountable government, but we aren’t going to get the former without getting the later first. .
Sorry, nick, but I just searched the blog comments for instances of “STFU” and only three popped up. Two by you, including that one, and one by junctionshamus (and he was using it in an illustrative sense).
Also, when a GB raises an issue? There is no compulsory timeline on our host’s responses. Sometimes he literally takes weeks to respond (although he often sends a “busy, get back to you”). Sometimes he responds right away. That’s how things work here. No one is shocking him with a cattle prod if he decides to handle something later rather than sooner.
Gene H:
There is so much of this in government. I really dont mind being taxed but to have it go to things like this? NO. If we have money to spend on frivolities like this, we can certainly cut the budget in real terms at least 5-10% without harming the poor.
We dont need NPR, the National Endowment for the Humanities, many of our military bases here and abroad, grants to business, and many other things which serve no purpose other than to line the pockets of politicians and their friends.
Gene H:
In fairness I am fairly certain that republican politicians have engaged in the same type of stupidity. Which is why I just said stupid politicians at the end with no party affiliation attached.
Elaine, I never had you as a conspiracy, Oliver Stoner. That’s pretty far out there!
Tony, NEVER have I told someone to “shut up” on this blog. You’re buddy Gene likes the STFU. If you read the FIRST[emphasis not yelling] words Mr. Turley saw fit to say was he was on Christmas vacation. Now, it seems you need to learn social cues, although this one is pretty obvious unless one was raised by wolves. I take that back, a wolf might read social cues better. Now, please feel free to speak further, I would never tell you or anyone to “shut up.”
“What some may find interesting is that I thought that second graders shouldn’t have much homework.”
Elaine,
As I said you were a good teacher and librarian if I remember correctly. Those that can teach, those who can’t might perhaps become prison guards.
Mike,
My only issue with that comment is I tend to think of Gary T. as small “L” libertarian. He’s never displayed or endorsed some of the more onerous parts of the LP agenda to my recollection. I could be wrong, but that’s the impression he leaves with me: libertarian independent.
Gene,
That explains what happened to DB Cooper….. That same moose bounced…
Bron,
I’ll agree that is truly ridiculous. I may be liberal, but I’m a utilitarian first. Where deer populations are out of control (which is a shocking number of places as hunting loses popularity with the young), they should be culled and processed, sold cheaply or given to the poor. Deer aren’t like Bambi. They’re big potentially dangerous animals and they have a really robust breeding cycle. They can become a dangerous nuisance quickly. Especially bucks in rut. But venison is tasty and good for you. That deer hysterectomy money could have paid for a sick kid to get medical treatment. The deer should be dinner.
Tony,
Oh yeah. Co-wokers are the best. But I stay away from dog wokers. That’s just wrong.
________________
Bron,
Not yet. I’d give you one for free though because I’m just that kinda guy.
________________
AY,
Marilyn was a fake suicide. She left the limelight to live a quiet life of seclusion in the U.P. of Michigan under the name “Harold Julius Saxby”. She died in 1983 when a moose fell on her out of a plane. His parachute failed to open. The jump instructor was investigated but released when it was shown the ‘chute had an unforeseeable mechanical failure. He was, however, admonished not to instruct woodland critters in sky diving. Saxby was survived by two children and a marmoset, all named “Kurt Gödel”. The moose was survived by a life long partner only identified as “RJS” and, for some reason undisclosed, given a star at Langley which is regularly visited by a short man in black and tall thin woman with a Russian accent. A tragedy for Hollywood and Moosewood alike.
But Hendrix? Davey Jones of “The Monkees” is your man. He was in reality an assassin for MI-6. It was to cover-up Jimi’s secret romance with Princess Margret.
True story.
At least that’s what the Internet told me.
I think it was really high at the time though.
Tony C.,
This is not the first time “something has happened” on this blog while Jonathan was on vacation. Some people like to push the envelope while our blog host is away from home.
dAVIDm:
I went to GW and Mizzou. Can I get banned for telling on myself? What if I have a split personality? Does one of me get banned?
My wife just told me about some liberal nonsense, the capture of deer in Fairfax City, Virginia. They have a grant from the federal government to capture deer and perform hysterectomies on the deer and then release them back into the “wilds” of the city.
That is a good bit of meat that could have gone to homeless people and the money spent on the surgeries could have gone for health care for poor people. All done in the name of humanity, to the deer of course. Screw the humans.
And so it goes our money wasted on stupid schemes by even stupider politicians.
Mike S.,
What some may find interesting is that I thought that second graders shouldn’t have much homework. I felt it was more important for them to be outside participating in creative play after school, getting fresh air and exercise, investigating nature, reading books of their own choosing, doing art projects and using their imagination, etc.
Gary T,
I’m sorry you’re a libertarian and damned good at defending your positions.
Nick: I am an atheist, half my extended family is atheistic, half is religious, but we all celebrate Christmas together. 23 this year, a handful short that couldn’t travel.
There is no conflict between us, I am perfectly happy to sing their Christmas carols as written. It is just a song, singing is not believing.
We are quite tolerant atheists, we are smart enough to understand that atheism is something people must come to on their own, in their own time, and not everybody can summon the courage to accept the truth of a finite existence. We are also smart enough to know that brotherhood, sharing and peace on earth is worthy of both aspiration and celebration, however one may come to it, by religion or by reason, and Christmas is as good a time as any for that.
So you are wrong; even this atheist looks forward to Christmas.
But I am smart enough to know when somebody like you is trying to manipulate others with phony emotional appeals, as you do by appealing to a Christmas Vacation, or special circumstances, or whatever it may be.
Jonathan had no obligation to deal with DavidM if he did not care to do so. Heck, he did not even have to read his email. So why don’t you shut up and assume the good Professor is entirely capable of defending his own vacation, and doesn’t need you to do it for him? He is not a child that has to be protected from the truth until the time is right. It is presumptuous of you to even think he wants to be. He can make his own decisions about the priority and importance of what is happening with his property. I think he is perfectly safe if you mind your own business.
DavidM, The plan is always to keep you tentative. Screw it. When I coached kids and they were going up an intimidating, hard throwing, pitcher, I would get them to laugh. Pregame would be loosey goosey. Then I would tell them instead of being tentative, go up to bat aggressive. Now, you’re not aggressive by nature. As Mr. Turley noted, you’re a gentleman. Many of these people despise you, but you can’t deal w/ some of these shitbirds tentatively. Go up there swinging. You have an 0-2 count against you from the start. It sucks, but it’s a rigged game. C’est la vie.
DavidM: A blog that considers your Alma Mater to be private information that cannot be mentioned under threat of banishment?
Whatever OS may have discussed on this blog as a guest blogger or otherwise is not off limits. What you find out about him outside this blog is off limits. If you think that is weird, tough shit. Stop trying to find leverage by snooping on people and violating their privacy. Consider it a closed room. What is volunteered in postings, you can use.
I think you are pretending confusion to deflect criticism; it just makes you look like a coward. Swallow your medicine and move on, you got off easy.