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. gbk

    that’s the problem with most auto resto’s, you’ll spend 10k to build a car worth 5,000 dollars.

    a small note about the volks engines, they’re called air cooled but much of the cooling is done by the oil. there are some very good add ons to increase the oil capacity. well worth the money.

  2. Mike

    also a lot easier (and more profitable) than digging ditches.

    it also pays not to be to exact, leave yourself a little wiggle room.

  3. Mike S.,

    “To me prophets are people who see truths about life with simplicity and economy.”

    Don’t you mean “sages” with this definition?

    Don’t prophets claim supernatural knowledge or some erstwhile connection to the divine, and solely by their words or presence manifest their validity?

  4. Bron,

    For all your words, could you answer the simple question I posed earlier:

    Why do you presume that the cost of ADA compliance is greater than the potential benefit of inclusion?

  5. Blouise,

    “Are Bugs still easy to work on?”

    No. Not at first anyway.

    After you replace everything, yes!!

    Getting there though is not easy, especially for a non-motorhead like me.

    I’m amazed the thing starts. At least it did today. 😉

  6. Mike,

    Which leads me to the next thought … where did prophets come from and why did they want to share their particular “Word”? Was their vision from a chemical imbalance or perhaps a near death experience or was it more calculated?

    Sophomoric, I know, but I get like this as the New Year approaches.

    1. Blouise,,

      To me prophets are people who see truths about life with simplicity and economy. Confucius first postulated a golden rule because he saw wasteful warfare all around him. The Buddha follows as did Jesus and Rabbi Hillel the Elder. This truth was obvious but people blind themselves to it. Prophets see what others blind themselves to.

    2. “where did prophets come from and why did they want to share their particular “Word”?’

      Blouise,

      Some were emotional geniuses and some took psychedelics. Hard to differentiate between who was who. Have a wonderful New Year and many more to come for you Tex and the family.

      Mike

  7. gbk,

    Are Bugs still easy to work on? I had one back in the mid ’60’s and I could easily disconnect the speedometer cable when I didn’t want my parents to know how far I’d driven.

  8. “Blouise,

    Maybe it was all about sociopaths trying to curb the behavior of other sociopaths. The guys who wanted the best cuts of beast didn’t want the other guys who wanted the best cuts to get the best cuts of beast.

    😉 ” (Elaine)

    There ya go! I love it.

  9. Bron,

    To gbk:

    “You guys call people like me sociopaths . . .”

    I’ve never done that, Bron. And this is why I don’t have much to say to you anymore: you lump people into categories to serve your argument.

    Hey, if that’s the only way you can find solace, then go for it; but understand that I note your generalizations used to suit your argument — laugh — and then move on with life.

  10. gbk:

    I agree on the result and you are right I have no idea of the tenants you live by. Wanting a particular result doesnt necessarily extend from a particular way of thinking. For example, I may be all wet about laissez faire. But at this point, I dont think so.

    If the curb cuts did not exist, I would use a drive way or buy a wheelchair which would go up a curb or climb stairs. They do exist, made by the inventor of the Segway. I think the Segway came out of the gyros for the wheelchair.

    Curb cuts make it easier for women with baby strollers, bike riders, the elderly, people making deliveries using a dolly and some others I havent thought of.

  11. Blouise,

    “I’m still putting off my kitchen remodel but running out of excuses as to why.”

    I know what you mean.

    I just spent the last two months finding a VW Super Beetle (which my wife wanted), rebuilding the engine, putting in new carbs, brakes, fuel lines, brake lines, etc., and then she wonders why I don’t have the baseboards in the hallway done? 😉

  12. Bron,

    “I agree with you, but why do you [correct me if I am wrong] think government can do this? And why do you think the private sector cannot?”

    This is the onus that you have always attributed to me, Bron – that I am a statist and that I only believe government can keep the wolves at bay. I’ve never actually said anything of the sort.

    Your own words, though, in this thread show me the private sector is not capable of this:

    “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.”

    So, where to turn? You claim that you agree with me, but really you have no idea of the tenants that I live my life by.

  13. Elaine:

    Indeed and many if not all came to power in monarchies or some other form of tyrannical government. Liberty is the best method to keep tyrants at bay.

  14. Blouise,

    Maybe it was all about sociopaths trying to curb the behavior of other sociopaths. The guys who wanted the best cuts of beast didn’t want the other guys who wanted the best cuts to get the best cuts of beast.

    😉

  15. gbk,

    We keep on keeping on.

    I’m still putting off my kitchen remodel but running out of excuses as to why.

  16. Blouise,

    Look at all the sociopaths who became leaders/rulers throughout history. (Elaine)

    Yeah … it didn’t work (religion as a curb on sociopaths) and those guys/gals thrive because they are always grabbing the best cuts of the beast and somehow manage to escape:

    “I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.” (mespo’s ref to Lord Action)

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