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. Bron,

    “are you Confu is Laughing?”

    Confu, or tofu? I like tofu; are you making fun of me?

  2. Bron, I just explained over @ the New Years thread. I’m too livid to repeat it.

  3. Bron,

    My mother doesn’t use a wheelchair. Still, she needs a walker. It is extremely difficult for her to climb stairs without a lot of help.

    I consider the concern for people with special needs more important than the cost of helping to make life easier for them. I believe there are some things that one should not put a price on. You feel how you feel. Not all handicapped people are of like mind.

    1. Elaine M wrote: “I consider the concern for people with special needs important than the cost of helping to make life easier for them. I believe there are some things that one should not put a price on.”

      So do you make your home fully handicap accessible? Do you have ramps to enter your home? Are your halls and bathrooms all enlarged to allow wheelchair access? Can a wheelchair turn around in the bathroom, and do you provide proper padding under the sink? Do you really practice that concept of not putting a price on accommodating those with special needs?

      I think reasonable accommodations should be made. I have readily agreed that when concrete work is done, put in ramps to doorways instead of steps, and ramps instead of curbs where traffic goes. However, when they insist that a building must tear down entire walls and bathrooms enlarged so big that other necessary rooms are lost, I think in many situations it creates too much hardship. I also get tired of seeing all the empty handicap parking places near the front doors, or people who abuse the handicap permit to get privileged parking. More common sense and courtesy to everyone involved is needed.

  4. Bron,

    “If employers were not forced to provide all manner of accommodations and could hire without fear of legal retribution should the person not work out, maybe more handicapped people could be hired for jobs they were trained to do.”

    Do you mean like Stephen Hawking?

  5. Bron,

    I have to say that you are the only handicapped person I’ve ever met who thought the ADA was a bad thing.

  6. Elaine:

    I am sure some have been. But many are not and it costs the owners money to make improvements. I read once that there are less than a million people who need wheelchairs full time.

    Here is a link that says 1.6 million people: http://dsc.ucsf.edu/publication.php

    Does that make economic sense to you? That is 0.52% of our population, how many millions of dollars have been spent per person to make our country accessible?

    When I go out, I am typically the only person in a wheelchair. I just dont get it. If there were no curb cuts I would use a driveway, if a restaurant didnt have a ramp, I would buy a portable one.

  7. Mike Spindell:

    That is Nick? How do you know that?

    Are you sure? Maybe someone hacked his computer?

  8. Bron,

    I was making a case for some buildings that have been grandfathered. My school–which opened in 1970–was made handicapped accessible by putting a ramp out front. All of the classrooms at my school were on one level. But one of the much older buildings in town couldn’t be made handicapped accessible without having major renovations done to the entire building. That’s why the phyically handicapped students in town attended my school.

  9. Elaine:

    I dont think your veracity was ever impugned. I know I didnt. I merely stated that DavidM was right about buildings having improvements need to be brought up to ADA compliance.

    Are you saying I am not telling the truth?

    I dont think 2 story buildings require elevators, the one I worked on didnt.

    They may have had to make other changes to comply. Elevators are only part of the package.

    1. Elaine wrote: “Do you doubt what I wrote about that historic building? Are you implying that I lied?”

      I don’t doubt you. I assume that the law in Mass. is similar to the law here in Florida. What happens here is that the “local authority” has sole discretion about enforcing the ADA. I can’t even have Tallahassee override the local authority’s opinion. I’ve tried. So if the local authority there said they didn’t have to do anything, then they didn’t have to do anything. Reasons could have been based upon a historic building as you say, or no reason given at all. The local authority only has to look the other way for his buddy if he wants.

      In many cases, I would say having to carry your mother up the stairs is a better option than forcing a non-profit organization to spend $20,000 so she could ride up in an elevator. Do you disagree?

  10. David,

    It is my understanding that they revealed themselves and that their boss even made an appearance.

    1. Gene H wrote: “It is my understanding that they revealed themselves and that their boss even made an appearance.”

      It is your understanding? It seems like you are revealing information here about certain posters identity being associated with the Breitbart group. But the information did not come from what they posted on the blog. So without their permission to do so, isn’t this against the blog rules designed to guard anonymity? To be fair, shouldn’t you consider banning yourself?

  11. DavidM:

    “Are you having a bad day? Your sentence here is completely unintelligible.”

    I think that is par for the course.

  12. Elaine:

    David wrote “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.”

    He is correct, I just worked on a project where they had to put an ADA bathroom on the second floor but no wheelchair can get to the second floor. It wasnt cheap either and they had to redo the floor plan. We protested but the county didnt care.

    There were wheelchair accessible bathrooms on the first floor.

  13. rafflaw:

    “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.”

    I work half as fast as I used to. It depends on the particular problem. It is definitely backed up by evidence.

    The reason many handicapped people dont have jobs is because employers are afraid they may not be able to fire a handicapped person. Or because they are worried about the acommodations they might have to make.

  14. DavidM: The differences in performance in the “scientific evidence” you think proves anything, you moronic racist.

    1. Tony C wrote: “DavidM: The differences in performance in the “scientific evidence” you think proves anything, you moronic racist.”

      Are you having a bad day? Your sentence here is completely unintelligible.

  15. Pete:

    I am badly handicapped and have been discriminated against. Only about 25% of handicapped people have a job according to the statistics I have seen. The main reason is that employers are afraid to hire them because of the ADA.

    It is why I do my own thing. I can take a job or not as my stamina permits.

    If employers were not forced to provide all manner of accommodations and could hire without fear of legal retribution should the person not work out, maybe more handicapped people could be hired for jobs they were trained to do.

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