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. “The whole world have been trying to enact campaign reform and Gene actually think that the solution to all our ills.”

    Straw man argument. I never said one thing was a solution to all problems, Skippy. That kind of silver bullet thinking is delusional and a form of the fallacy of simple cause. It is also a material misrepresentation of my position.

    What I said was that campaign reform is a (not “the”, articles are important in the English language) step, and a necessary step, to reducing corruption in government. If the article “the” is to be used, I would say it is the first step necessary.

    That’s 1) not “all our ills” but one specific ill and 2) not even the only step that needs to be taken to mitigate corruption.

    If you want to argue with yourself, be my guest, but don’t attribute your arguments to me.

    I can make my own.

  2. nick,

    You could have stayed in teaching and had “months of time off from work.” Too bad those evil teachers and union forced you to leave the profession.

  3. Nick says: Tony, NEVER have I told someone to “shut up” on this blog.

    So? Since when am I bound by your code? You certainly have no respect for mine. It’s a free speech zone, I have no power to compel you, and I am not a Guest Blogger. So here is me exercising mine: I think you are a manipulator constantly trying to wrangle some measure of authority, in this case telling people they are wrong for disturbing the presumably frail and easily rattled Professor while he is on Christmas Vacation, and out of reverence for his much needed rest we should save the drama for another time (and thereby give your ideological friend a free pass). Which is the equivalent of telling us to just shut up. I see through your transparent maneuver to exert authority you don’t have, and return the sentiment.

  4. PS” This is where someone says “He ran away.” It’s really to honor Mr. Turley, I see him deleting this entire thread out of shame of his GBers.

  5. I was not aware the vacation extended past Christmas day. Most folks end their Christmas vacation the day after, people have to work in the real world. Mr. Turley works several jobs. My Christmas vacations never extended past Christmas Day. I even worked on Christmas a few times. Grammar school teachers had a different reality, but most folks don’t get months of time off work.

    This thread is one of the most horseshit of any here. Basta. See you elsewhere. So…fire @ will, I will not return fire. Enjoy yourselves.

  6. Do you even know how e-mail operates, nick? You jot a note and send it to someone and they get back to you at their convenience. If the blog had caught fire and went backward in time to explode over Tunguska Siberia? I might have called him. I do have his number. All the GBs do.

    So you get as worked up as you like hatin’ on me.

    I think it’s hysterical.

    1. Bron Wrote: Skip:

      to tell you the truth, Gene H and Tony C offer valid feedback for their way of thinking. They make you think about your ideas.

      Just throw it out there. You arent going to learn anything arguing with me since we agree to a point. I want a limited government, small, very small. Maybe 25-30% the size it is now.

      I dont agree with Tony or Gene on most everything but they arent web trolls. They present their points well and give you something to think about.

      You have to have something to test against so just ignore the insults. Tony and Gene are brawlers and they like blood. But the thing is that by thinking about what they say and checking what you know and believe against what they say, you can actually learn something.

      And look at DavidM, he brings up subjects that others would be crucified over but he takes it right back to them.

      Bron, No they don’t. All there comments reek of dishonesty and/or ignorance. They don’t really ever say anything we don’t already know. They offer the same main stream media memes used to deceive the people over the last 100 years.

      I’m surprised you haven’t heard the arguments before.

      The whole world have been trying to enact campaign reform and Gene actually think that the solution to all our ills.

      Wake up. It’s the system of redistribution of wealth through the initiation of force and coercion that has always deprived Citizens of their unalienable rights. Thinking that you can alter 6,000 years of this BS, using the system that promotes it, is delusional and ignorant.

      You want to make the country boom again. Eliminate the 1st $60,000 of all individuals income from being taxable.

  7. nick spinelli
    1, December 29, 2013 at 6:44 pm
    I knew when those words were the first out of Mr. Turley’s mouth yesterday.

    *****

    Evidently, you knew well before that:

    MERRY CHRISTMAS!
    http://jonathanturley.org/2013/12/25/merry-christmas-3/

    Excerpt:
    Best wishes to everyone celebrating Christmas.

    We have a white Christmas in Chicago with a little more snow on the way.

    *****

    You made the following comment on that post written by Jonathan on Christmas Day:

    nick spinelli
    1, December 25, 2013 at 12:18 pm
    Merry Christmas and Happy Festivus. We had the airing of the grievances last night, today the feats of strength. The pole has been up for a week or so.

  8. If you were to call the boss in the real world, while he was on Christmas vacation, saying “Davey told people where I went to school,” there’s a damn good chance the whiner would get shitcanned and the person who revealed where someone went to school would get a reprimand. You make notes on the topic, and wait for the boss to return from vacation. I reckon this basic stuff is why the whiner has a job, not a career.

  9. Bron
    1, December 29, 2013 at 2:37 pm
    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.

    *****

    Sorry for taking so long to respond to you. I’m away from the computer at times…and often miss a comment addressed to me.

    Let’s add Enron…and BP…and Goldman Sachs…and J.P. Morgan…and on and on and on.

    Then we agree that there are plenty of bad actors–both in government and in business?

  10. Blouise,

    I had forgotten about the “prison boys”. Got to give them points for creativity. What a hoot.

  11. nick,

    I’ve never told you to STFU.

    I’ve told you that your participation here is entirely voluntary and that if you didn’t like the way things are around here, you are free to leave at any time.

    Because it is and you are.

    ______________

    Bron,

    Hey, Karl is on your side on one issue as you listed above.

    But the thing you have to realize about Karl is he doesn’t have a single conviction of his own in his whole body. He’s a paid goon. His political ethos is precisely that of whomever is signing his check.

  12. nick said: “I think the GBers are the only ones who actually know when the boss is gone…”

    Yet, you were the one who accused Gene of spoiling Jonathan’s family vacation. YOU knew Jonathan was away from home.

  13. ” 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.” (TonyC)

    I would leave out the “petty, vindictive, lying bullies” characterization substituting “those” and agree 100% with the rest.

  14. More conspiracy theories, must be the eggnog. I think the GBers are the only ones who actually know when the boss is gone and they aren’t exhibiting exemplary behavior, of course some never do.

  15. “The shift comes as grassroots activists have re-framed the GOP’s old “pro-business” stance into a “pro-free markets” positioning that eschews corporate welfare and taxpayer-funded crony capitalist giveaways to industries that make major political contributions and reap big government contracts paid for by voters.

    The Journal says that joining the Chamber of Commerce will be groups like Karl Rove’s American Crossroads, who “are preparing an aggressive effort to groom and support more centrist Republican candidates.””

    http://www.breitbart.com/Big-Government/2013/12/26/Chamber-of-Commerce-To-Spend-50-Million-To-Crush-Tea-Party

    The Chamber of Commerce against free markets and the elimination of gimmes to business, of course and Karl is right there with them. Who would have thought Karl Rove was a liberal?

    Well, I must confess that I did. Well maybe Karl is more of a fascist, although it is awfully hard to tell them apart in this day and time.

    Whatever he is, I am just glad Karl isnt on my side.

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