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
That dark beard guy must get followed in stores all the time. Is he some kind of big shot here? He’s not a Negro is he?
David, You say you released all your information. That BS. We demand your SS#, DOB, hat size, shoe size, height, weight. WTF you got to hide you lily livered, homo hatin’, psychopath, damn I can’t type all that. That beard guy is releasing private information about me. How can I report him. He gave out my name and email service. Is he fat? He looks fat. And real dark too. He looks like a pedophile.
“David, You say you released all your information. That BS. We demand your SS#, DOB, hat size, shoe size, height, weight. WTF you got to hide you lily livered, homo hatin’, psychopath, damn I can’t type all that. That beard guy is releasing private information about me. How can I report him. He gave out my name and email service. Is he fat? He looks fat. And real dark too. He looks like a pedophile.”
David,
Just to avoid confusion, Confucius is Nick’s sockpuppet. As for his E mail address being exposed, given what was written, I defy anyone to send him an E mail from what was mentioned, it can’t be done. However, he has allowed his anger to get the better of himself to the point where he is now stalking at least one of the GB’s using his dick skills and in doing so has somewhat weakened your case.
Mike Spindell wrote: “Confucius is Nick’s sockpuppet.”
Isn’t this against the rules, to expose someone’s identity without their permission?
Heaven forbid we should accommodate the elderly and handicapped among us.
BTW, that historic building where my daughter had her wedding reception had major renovations done on the first level a couple of years ago. Still, the owners were not required to install an elevator. That may be because of the historic significance of the building.
http://www.salemweb.com/tales/lyceum.shtml
DavidM says: Some people stupidly believe that acknowledging the scientific data of differences between the races is evidence of bigotry!
Some of us believe that attributing those difference to race instead of systemic racist oppression and a skewed culture that results from that pervasive oppression is evidence of stupidity, and bigotry, and racism.
Tony C wrote: “Some of us believe that attributing those difference to race instead of systemic racist oppression and a skewed culture that results from that pervasive oppression is evidence of stupidity, and bigotry, and racism.”
Really? What study shows that the darker skin and unique hair of the African race is a result of systemic racist oppression and a skewed culture of stupidity, bigotry, and racism? It sounds like you believe in Lamarckian evolution.
Maybe just tar and feather the SOB. That’ll teach him to be such a bad man. We got us a liberal KKK rally going here.
This David sound like he needs a lynching. Anyone got some rope?
Elaine,
you are correct because my son’s recent wedding reception was held at a facility that did not have an elevator or ramp and had a handicapped relative decide not to come to the event due to the lack of access.
Skip: I believe a very strong safety net mixed with Capitalism can achieve that goal. I do not think the American system is fair, I think it is oppressive to the majority and far too weighted toward those with money and talent.
I do not expect you to understand this or agree with it. By very strong safety net, I mean nobody should go without basic nutrition, basic shelter and sanitation, equality of safety, legal representation, all the health care they need and all the education they can complete, and I think it is in the best long term interest of society to provide all that for free, to maximize the life potential of every citizen. Because I think the number of free riders would be few, and the benefits would far outweigh the costs; as has been proven time and again in other countries for many decades (and that was true long before any of them struck oil).
Deny the evidence all you want, it works and it results in the happiest citizens on Earth. People together accomplish more and are happier for it. It is why people are inherently social in the first place, because fifty people working together and helping each other create more total value than fifty individuals each toiling alone.
Skip says: And who is to choose what rights I have and which rights I do not have. When do I know if I should fight back against someone or some group who is trying to take away one of my rights?
How do you know now, Skip? Somehow or another you learned what you think your “unalienable” rights are, and when it is okay to fight back and when fighting is just assault. I presume you memorized it. Well, memorize the real thing instead of some fantasy that is going to get you into trouble.
As for “who is to choose,” the only group with the power to deliver on any guarantee is who chooses: Your Society, however it has managed to organize itself. What you call “Rights” are meaningless without their assent and power to protect you or punish violators of your Rights.
Skip says: So if someone came and tried to harm you would you or would you like others to be able to try to stop them from harming you.
I think that is the wrong question. I do not want my Rights to depend on whether others like me or feel like helping me. I do not want my Rights to depend upon whether I can afford to pay somebody to help me. I want my Rights to be a guarantee of help against oppression, I want men with guns paid to protect me from harm regardless of whether they agree with my politics, think I’m a jerk, or don’t feel like risking any harm today because they aren’t in the mood to protect and serve.
Skip says: This is what we are really talking about. If your neighbor is being harmed by someone, would you help them or wouldn’t you.
I don’t think that is what we are talking about. What does personal bravery or courage have to do with Rights? Should I have to rely on my 92 year old neighbor’s bravery to protect my Rights?
I want trained professionals protecting my Rights, not my neighbors. I want people trained in engaging criminals, trained in self defense and attack and the use of deadly force, I want people trained to know what is and is not permissible and what is and is not a Right. I want that to be somebody’s job, I do not want my neighbor (or any wannabe vigilante like Zimmerman) walking the streets deciding who is a threat or suspicious and who is not, what they think should be a Right and foisting their own rules on the rest of us.
So much banter, so little progress. Very disappointing experience because this is a good site. I wish I could say the thing of the participants. No wonder out nation has so many social and economic problems facing it’s future.
Bron,
It is a known quantity that there have been paid trolls here before. Some have even stepped out from behind the mask(s) deliberately, most notoriously Breitbart’s group. Therefor it is not unreasonable to question whether persistently disruptive posters (a known troll tactic) or posters using other readily identifiable propaganda techniques are trolls of the paid variety or merely trollish by consequence of an unpleasant nature and/or regurgitating propaganda they have been fed.
Gene H wrote: “It is a known quantity that there have been paid trolls here before. Some have even stepped out from behind the mask(s) deliberately, most notoriously Breitbart’s group.”
Did you contact Breitbart’s group and obtain permission to share this information before you posted this here?
Bron, I don’t think nick has ever been called a paid toll. At the very beginning I thought he could be bdaman but quickly I realized his positions were all over the map. He wrote in Russ Feingold for president. The paid troll types hate Russ Feingold and the consistently liberal positions he takes.
rafflaw,
I’d add that many older buildings are grandfathered–and are not required to be handicapped accessible. My daughter’s wedding reception was held on the second floor of an historic building. There was no elevator, escalator, or ramp to the second floor. My mother had to be carried up the stairs.
Elaine M wrote: “I’d add that many older buildings are grandfathered–and are not required to be handicapped accessible.”
Unless some renovations or changes are done, and then shazam! The new codes take effect. Even if the changes are only on the outside of the building, the inspectors force tens of thousands of dollars of changes indoors to accommodate ADA.
Bron
1, December 30, 2013 at 1:17 pm
DavidM:
When someone disagree with their world views, they immdediately think that person is a paid troll. I have seen it before.
****************
Who is the “they” you are referring to in that comment–the “they” who immediately assume a poster who disagrees with “their” world view is a paid troll? The guest bloggers? All of the guest bloggers? Some of the guest bloggers?
******
Bron
1, December 30, 2013 at 3:21 pm
Elaine:
I am pretty sure Nick was called a paid troll when he first came. It ended with but not a very good one or his employer should get his money back.
*****
You are pretty sure someone called Nick a paid troll? Maybe someone did. I can’t recall.
Bron,
To state that a business can discriminate for any reason leads to racism and can be an excuse for racism. Are you old enough to remember the civil rights protests at lunch counters? Without the civil rights legislation, millions could be denied service all around the country. How is that equitable? As to the ADA, your comment that the handicapped would be better off without it, is nonsensical. Many of the businesses that had to make physical changes to their buildings to allow handicapped access would not have done it without the force of law and handicapped customers would be blocked from entering the establishment. Your comment that many handicapped workers work slower is not backed by any evidence and is just another excuse to not allow them into the work force. The curb cuts would not be there without the color of law in most instances as well.
If there were no ADA laws the handicapped would be in much better circumstances,
=======================================================
ya know what, bron F U
and i still wouldn’t wish it on you
Sounds like this Gene guy has had his ass kicked a few times.
Elaine:
I am pretty sure Nick was called a paid troll when he first came. It ended with but not a very good one or his employer should get his money back.
rafflaw:
Yes. If you own a private business, you should be able to serve whomever you want. And refuse service as well if it is your judgment to do so.
As for the handicapped, I see no problem for a business to discriminate against them. Why should a restaurant be forced to put in an elevator or an employer be forced to alter the work place to accomadate a handicapped person?
Handicapped people often work slower than others and require more time off and have special needs, why is it an employers problem?
If there were no ADA laws the handicapped would be in much better circumstances, as it is most of them dont have jobs. Although I do love those curb cuts.
David,
You are indeed free to say what you like about any topic (with the noted exception). That doesn’t equate to you being free from repercussion from what you say. You could say you’d like to shoot an elected official if you like. The consequence would be a visit from men in dark suits with no sense of humor if you said it a way that could be construed as a credible threat. If you called your biggest client/customer an a “scam artist” and it was a freely distributed serious comment, you could expect not only to lose their business but probably a defamation law suit as well. If you were married to a gal and decided to address her as “stupid whore” all the time, you can expect to be spending some time with divorce lawyers as a potential consequence. Possibly having her loving protective brother beat the snot out of you as well.
Cause. Effect.
Either reconsider your positions or accept that those positions come with consequences, including negative (or positive) reactions about the speaker. If you have a problem with the impression you leave upon others based upon your stated positions creating a negative impression?
That is entirely your problem.
Also, you fail to understand something about this forum. The rules here create certain rights in addition to those guaranteed by law. The expansiveness of the latitude afforded free speech here is simply due to the good will of the host. Just so, what few limitations he places on said speech are his choice as well. He could make this a fully moderated forum if that was his desire. But those stated rules, like any, come with rights, duties and obligations as a form of quasi-contract. Rights, duties and obligations that some posters – as Tony specified about himself – rely upon in their decision to participate here.
So maybe you should quit playing at knowing what you’re talking about when it comes to law, rights, duties and obligations.
Mike,
I address the following to you as I wish to know if your experience quadrates with mine.
Sociopaths don’t have a natural affinity for other human beings. They don’t feel attached to others. Recognizing early on that love/affection is an emotion others experience, they learn to mimic the emotion. But it is a pretense only. This actual lack of attachment to others is what leads to the lack of conscience. The lack of conscience leads to a general disdain for others. Why in the world would one want to feel the pain of guilt or remorse over one’s treatment of another? This disdain leads to an overall sense of superiority because they know that guilt and remorse are weaknesses to be mimicked but never actually felt let alone allowed to interfere in acquiring whatever it is one wishes to acquire.
Sociopaths, having spent a good amount of time observing others and yet having no actual sense of guilt or remorse, have learned how to use these emotions against others to get what they want. He/she knows how to appeal to others’ sense of pity and or guilt. Sociopaths are expert in playing the victim card because they have found that playing the victim affords excellent cover when victimizing others.
“If … you find yourself often pitying someone who consistently hurts you or other people, and who actively campaigns for your sympathy, the chances are close to one hundred percent that you are dealing with a sociopath.” (Martha Stout, The Sociopath Next Door)
I have run into more than a few sociopaths in my life and have found that my first sense of something being slightly off comes from my subconscious in a manner that can best be described by the word “creepy”. For no reason immediately available to my conscious mind, the person makes my skin crawl. I pay attention to that initial sense and tread very carefully because I know they truly believe that rules do not apply to them.
“Sociopaths don’t have a natural affinity for other human beings. They don’t feel attached to others. Recognizing early on that love/affection is an emotion others experience, they learn to mimic the emotion”
Blouise,
You’ve nailed it and in my work I have had sociopaths as my patients in Psychiatric After Care Housing Programs. I’d love to say that As a professional I sniffed them out immediately, but in fact I was fooled on quite a few occasions. My “fault” with people, if it is one, is that I root for them and want to believe in them. In my program which dealt with dual diagnosis people taken from psych wards I would find them on the ward and they would be discharge to my care in housing I ran. Their condition on the ward was usually a sad one and so I represented hope for them in really well furbished apartments and with a structured day program. A few proved to me that I wasn’t as smart as I thought I was.
The most ironic situation was that my direct superior wanted to get rid of me, because I was more qualified for the job and actually the Agency Director wanted me to take the job she filled. I had just retired from an Executive position in the City which was far away from my psychological training and my social work instincts and so I wanted a position bringing back to my roots, so to speak. I grew the program from nothing into one that had 26 employees serving 36 beds, with casework for another 150 client’s. My boss brought in a man to be my Deputy Director that she was grooming for my job. He was a flaming gay guy and I think she thought I would find that distasteful. Many who know me superficially see me as a very macho kind of guy because of my height, my voice and my mannerisms. What my boss didn’t understand is that I’ve always had gay friends of both sexes and am very comfortable with it. I embraced my new deputy to the extent that the administration seemed surprised at how close we became. At some point I was contacted by his ex-therapist who my deputy had cheated out of thousands of dollars and she was reaching out to me. I liked the guy so much that I thought she was crazy.
Two months later the Agency ran into financial difficulties and decided to lay off three of their highest paid directors, I was one of the three. I took a few days off since I was due to leave at the end of the month and when I returned my Deputy had moved into my office which set off a few alarm bells. Anyway I found another job immediately and so I left. Three months after that I was contacted by a friend from the Agency who told me my Deputy had been fired. It was found that he had been having sex with some of our clients and also that he had been misusing funds. Further investigation found his credentials to be phony. I really liked the guy and he had me completely fooled.