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
DavidM says: Obviously, you have not tried it.
How am I to try it? I did not try to learn anything about Gene outside of this blog in order to attack him, I do not have the information you have acquired in your petty search for dirt to use in an ad hominem attack or some attempt to discredit it; and I am not a Guest Blogger privy to what that attack was.
Obviously I cannot try it.
And if the rules are too oppressive for you, either on this blog or in this country, you are free to leave and try your luck elsewhere.
“We must have government. An assertion that most people agree with. Prove it!!!! ”
Human nature proves it.
“Gene’s overall theory: it is what it is, you’re not really going to change it much and that is reality and I agree with that.”
Better brush up on those psychic powers or quit using straw men arguments, Skip. If I have an “overall theory” (which in reality I have lots of theories about lots of different things), it would be the following: The world is what we make it.
You’re funny when you’re frustrated.
David,
Your right of free speech is only limited by your searching and posting personal information of a blogger here….. Guest blogger or not….
You’d be wasting your time because the evidence you seek does not exist. Searches have already been run using the internal WP database.
Speaking of things you are also doing, pushing your luck is on that list.
As OS noted, “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.”
Gene H. Good, cowards should leave the blog and hide. If you have to hide your bio, perhaps you need to reassess your life and come clean. Find out first hand, what happens to whistle blowers under your mixed economic model
Gene H wrote: Speaking of things you are also doing, pushing your luck is on that list.
Ooo,, sounds like a threat to me. Ban me and all others who disagree with you. I thought all along by the callousness and arrogance of your posts, of what you occupation is. The glove fits perfect in this case.
“Let’s be clear going forward please for everyone on the blog. If you are searching for information on other people to use on this blog, don’t. If you cannot live with that reasonable limitation, then you should move on to another blog.” – Jonathan Turley
That clear enough for you, David
Gene,
I do not see how much clearer it needs to be…. Just because it exists out in Cyberland does not mean that it’s fair use here…. I think the professor sums it up quite well.
I don’t see why David had a problem comprehending that fact.
Tony, excently stated….
¡de nada!
Thanks to the rescuer of my post.
David,
If someone hasn’t mentioned it here and hasn’t given you permission to bring it up?
Don’t.
Gene H wrote: “If someone hasn’t mentioned it here and hasn’t given you permission to bring it up? Don’t.”
I am sorry, but the speech policy of this blog is far too restrictive and oppressive for me.
I am an avid reader. I know for a fact that I have brought up information from many other places without permission. There is no way I can compartmentalize the various sources of my learning to be sure that I am not violating your speech rules, nor do I intend to ask permission before bringing up new information. I simply do not feel free under your speech policy.
Is your speech policy written somewhere? I would like to review it before unsubscribing so I can make sure you are not misrepresenting it yourself.
“I am sorry, but the speech policy of this blog is far too restrictive and oppressive for me.”
DavidM,
You are free to leave at any time, but if you remain here you will obey the minimal rules.
Plus, I suspect a lie anyway. If he is searching the posts, he can search the school name he already knows, and there would not be “too many hits” for him to “look through all of them,” because I presume there wouldn’t be any. If the school was disclosed it’s name would be found!
So my guess is correct, David is just trying to see if the back door is unlocked and using a ruse of “clarification” to try and guide his fellow sociopaths in a search for whatever information he wants to disclose.
Tony C wrote: “If he is searching the posts, he can search the school name he already knows, and there would not be “too many hits” for him to “look through all of them,” because I presume there wouldn’t be any. If the school was disclosed it’s name would be found!”
I did search with the school names and there were too many hits for me to take time weeding through them all. Obviously, you have not tried it.
How many times must it be said that what is not posted on this site is not fair game? Publicly posted or not?
This just looks like DavidM trying to disclose information under the guise of “getting clarification” on an issue thoroughly clarified already.
Tony C wrote: “How many times must it be said that what is not posted on this site is not fair game? Publicly posted or not?”
You will probably have to repeat it a lot because this speech policy simply makes no sense to me. The speech policy as stated has been violated numerous times on this blog.
I have known that Elaine was a teacher. I only feel safe to mention that now because another commentator recently mentioned it without being threatened with banishment. However, I don’t remember where I first learned that information. It probably was from outside this blog.
When I cross paths with people who say interesting things, it is not at all uncommon for me to look up their bio online. I know for a fact that I did this with Jonathan Turley. I first saw him on Fox News. He was interesting. I liked him. So I searched online and found more info about him. That led me to this blog. I liked the articles. Some bloggers are interesting, so I look up more info about them. I guess that makes me creepy and weird in your eyes, but the truth is that I am just a curious person and I soak up information like a sponge.
In fairness to Gene at this point, it is entirely possible that I learned about his schools from his Google+ page. I think I have seen a picture of him on another social media page. All I know is that the information I shared was made publicly available to me by Gene because there is no other way for me to have received that information. Now I am informed that publicly available information is grounds for banishment from a site dedicated to free speech. That is simply WEIRD to me. It sounds like the way a religious cult operates.
“Ridiculous. I have not chosen anonymity. WordPress did not allow me to register my real name because it was being used by someone else with the same name.”
DavidM,
Well in that case you can respond to this comment by revealing your full name in the body of the comment.
Gene H – In regards to the blog rules about allowable information to post: There exists information from social media websites like Facebook, MySpace, and Google+ where people choose to disclose information about themselves to the general public. Is this information allowable?
For example, this morning I decided to do a quick search for the postings where you disclosed your school information. You make a lot of posts on this site, and there were too many hits for me to make the time to look through all of them, but I did notice that you have a Google+ page. On that page, you list one of the schools you attended. This is not information that you have chosen to keep private, just for your friends, but information that you have made public. How does the blog policy address the sharing of this kind of information? Is it allowable?
David, all GB’s should have to provide a bios like the owner of this blog. That would solve this problem. People who are not willing to come forth with their BIO aren’t probably worth reading.
Take Gene, he makes many “wonderful” assertions, yet very seldom backs them up with examples, how it would work or evidence that it works well. He will provide evidence though when he catches someone making a mistake. At least the readers can look at the validity of the evidence.
If you ask him a specific question, he won’t answer it and instead he just make another unsupported assertion. Example, You can’t just throw out the baby with the bathwater or they’re rich, so I don’t trust them to care about the poor. Stuff like that. He only cares about trying to win the debate, he does not care about the truth, he is not even willing to allow you to post information about him that is available in public forums. Why does he want to even hide biographical info about himself?
Gene knows it is easy to get ignorant people to except arguments even if they’re wrong and he relies on this. What’s the old cliché, you can fool most of the people most of the time.
Perfect example. We must have government. An assertion that most people agree with. Prove it!!!! You can’t and trust me you can’t prove that we can live without government either. You can only provide arguments and the arguments on both sides are very compelling. The point is, if someone even makes that argument, a red flag should automatically be raised, as it is not a provable assertion. What came first the chicken of the egg? If I make the assertion the chicken had to come first for there to be an egg, that should raise a red flag to any critical thinker, for this argument because everyone knows, the rebuttal, the chicken could not have possibly come first, because chickens must be hatched from eggs. The same with the God theory and the Big bang theory. Where did the matter come from for there to be any type of explosion? Where did God come from?
Gene’s overall theory: it is what it is, you’re not really going to change it much and that is reality and I agree with that. Gene won’t agree with that but that is another issue. The difference is, I’m not going to stop trying to find a better way. There is no reason for mankind to be stuck at the existing plateau in the evolution of the human experience. He’s sees the hierarchal model of forced public policy by political means as a necessity. Is he right, I don’t know? What I know is I don’t like the results of the existing experiment and therefore I am going to look at different social models to try to find a better system and I don’t like those who try to ratfcuk this attempt. I don’t care who thinks they won an argument or not, because I am not going to let anyone fool me and others who “do” have the ability to raise the red flag when they see bogus arguments. Let Gene continue to fool himself and his comrades into believing they are right.
How do you argue with someone like Tony C. who asked the question, What if I think I have the “Right”, when discussing unalienable rights, to murder someone”, even after I had explained and gave examples of what the various authors throughout history believed “Rights” are.
I think Elaine M. gave the most honest reply of the bunch on: 1, December 29, 2013 at 7:05 pm — Oh what a tangled web we weave, When first we practice to deceive. – Sir Walter Scott (Marmion,1808)
Look at all the Comrades posting social media crap on this threat, Why do you think this is? – Shouldn’t they go to Facebook or Twitter.
“David, all GB’s should have to provide a bios like the owner of this blog. That would solve this problem. People who are not willing to come forth with their BIO aren’t probably worth reading.”
Hskiprob,
Professor Turley has had full bios of us since early last year. It has been his intention to put them on line but the crush of work has as not yet afforded him the time to do so. Last week he wrote to us that he would make the time. As far as my bio one only has to enter Mike Spindell into the search function and you will get all the information you need on me, because in my writings I have said perhaps more than needs to be said about my life and my career. I write this because some time ago, before gust blogging there was a person who stalked and threatened me on the blog. That person was banned.
Let’s look at this present instant though. You are not an anonymous blogger because at times you’ve used Harry “Skip” Robinson which I presume is your real name and my sense of you is that like myself you have no problem with that. DavidM on the other hand has chosen to remain anonymous and so he can claim any number of accomplishments without us knowing which are true.
That is indeed the advantage of anonymity. Having invoked that “advantage” though he is being hypocritical in thinking he has the right to invade someone’s privacy and that includes guest bloggers. The personal information rule was invoked because I was being ominously threatened, however, all of us have different levels of comfort with disclosure and I believe that this should be respected.
What David did though definitely seemed threatening to many including Professor Turley who characterized it as “creepy”. Instead of accepting his rebuke David has in effect doubled down and is lying about the source of his information. Think about that. Someone here could google your name and find something with which to taunt you about and in the process reveal information about you that you wouldn’t want bandied about on the internet. Are you comfortable with that? That is what David was doing. The information he released on Gene was something he could have only gotten by off blog research and his inability to provide an on blog source proves it.
Mike Spindell wrote: “DavidM on the other hand has chosen to remain anonymous and so he can claim any number of accomplishments without us knowing which are true. That is indeed the advantage of anonymity. Having invoked that “advantage” though he is being hypocritical in thinking he has the right to invade someone’s privacy and that includes guest bloggers. The personal information rule was invoked because I was being ominously threatened, however, all of us have different levels of comfort with disclosure and I believe that this should be respected.”
Ridiculous. I have not chosen anonymity. WordPress did not allow me to register my real name because it was being used by someone else with the same name. And I have not threatened anybody.
Mike Spindell wrote: “The information he released on Gene was something he could have only gotten by off blog research and his inability to provide an on blog source proves it.”
My not providing a blog source proves nothing except maybe I don’t have the research abilities you claim that I have. Nevertheless, it does not take research expertise to look at Gene’s Google+ page and see that he openly chooses to reveal his school to the entire public. Why does he do that if he does not want the public to know about it? I don’t think he is so stupid to do it by accident. Do you?
I have a reply to Skip lost in WordPress, for five minutes or so. Any help would be appreciated.
Skip says: He at least admits, unlike others, that our system is having some dire problems.
Which others? Both Gene and I have said repeatedly our system is having dire problems. Not “some,” but pervasive dire problems.
Skip says: Most of the social problems in our country have gotten worse over the last 50 years.
Not really, since 1963 equality has advanced for blacks and other minorities, for women, for homosexuals. Bigotry and prejudice and racism still abound, but progress is being made. Probably the worst new social problem is prejudice against Muslims.
Unless you think the advancement of equality itself is a problem.
Skip says: It’s not government that I oppose, it is the initiation of force and coercion and I can envision a system or social compact,
No you can’t, because such either doesn’t exist or wouldn’t work.
Skip says: The question is, can we really create a social compact without legalizing the initiation for force and coercion? […] I think there’s a way.
No, there isn’t. No, we cannot. Psychopaths and sociopaths are inevitable, our human reproductive creates the most complex organism in the known universe, and as a result there is a percentage of error; about 1% actually, people born without the ability to feel empathy, sympathy, or care about others OTHER than as objects to be used for their own selfish gain and discarded. But that 1% chance of psychopathy is an emotional wiring problem independent of rationality and intelligence, so from that 1% (about 2.4 million adults in the USA) about 1% are intellectually brilliant.
The only thing that controls psychopaths is force, or the believable threat of force. They are entirely selfish and feel nothing for even their own families or children. How does your plan stop them? Good wishes? Do you imagine they will make a convenient frontal attack on your fortress so you can kill them in self defense, and claim you did not initiate the force?
The smart psychopaths will evade capture and do their killing by ambush, deception, and through paid mercenaries and soldiers that have little choice because their wives and children are effectively held hostage by the psychopaths?
Whatever you imagine you have, you have no solution to the one in 10,000 people born a brilliant psychopath. They aren’t ever going to make a frontal attack unless they are virtually certain to win it. They would murder our children to gain an advantage or teach us a lesson, in fact they kidnap and turn our children into sex slaves for profit all over the world today. They aren’t going to make stupid mistakes that get them killed or even put them in danger, and they are going to be surrounded by armed henchmen willing to do their bidding for a share of the illegal gains.
They are unstoppable without force, and if that force is not wielded by a government with the permission of the people, then all you have is vigilante justice that itself can become a mob led by a psychopath seeking power and enslavement of others for their own selfish gain.
As Gene said, there is no system of government that does not require coercion and force. And no man alone can defend himself from a gang of psychopaths. Civilization always relies ultimately upon force, law enforcement always relies ultimately upon force, we need superior forces to control those that are undeterred by anything BUT superior force.
Skip,
All forms of government, and I do mean all, rely upon coercion at some level or another. Do you know why? Because laws without enforcement are suggestions. If your issue is with coercion? You have no refuge in anarchy either. You will be subject to the coercion of the strong over the weak unless you are personally powerful enough to stop them. Since coercion is unavoidable, the question becomes “what is the best (least bad) form of coercion?” The answer can only be “coercion that is used by society to equally protect all citizens from tyranny in all its forms”. That? Is what this country was founded upon. That is our social compact as found in the Declaration as it informs the Constitution: the usurpation of tyranny. QED, if the form is right and the goal of the social compact is right, then government itself is not the problem but rather government malfunctioning or co-opted from its original purpose is the problem.
____________________
Bron,
“Objectivist [sort of]”
Sort of? There’s hope for you yet.
_____________________
Smom,
Glad to hear the move is done. I know that’s got to be a relief.
Gotta go to bed as I have to get up and grocery shop before the crowds hit.
SwM,
Ok … we’ll make plans. Poor raff will just have to get along without us.
Blouise,
Thanks for the recommendation.
Julia loves puzzles now–especially an alphabet puzzle that a publisher (Tiger Tales) sent me.
Blouise & Swarthmoremom,
It’s time for me to sign off tonight. Happy dreams!
Elaine,
I’m a nanny-granny too but Tex takes very good care of her.
Knowing her colors and counting to ten is excellent progress. My 5 year old never learned the song but she uses the iPad like a pro. I’m teaching her the card game, Uno but the card game she really likes and plays very well is Sleeping Queens. You can buy it at Amazon. I highly recommend it for 4 years old and up. Adults enjoy it too so it’s a game she can play with the whole family.
Sure… I would love to visit Boston again. Have not been there in seven years.