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.
——————————————-
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
“Bron,
I suggest you adjust your artillery fire towards the guilty & apologize to drunken sailors & Scotsman everywhere.” (Oky1)
Coming from a long, long line of drunken Scotsmen, I second that!
Tony,
Happy New Year to you!
“All made much easier when religion can be manipulated to make people see the sociopath as supernaturally favored and entitled.” … Paul in a nutshell 😉
I think what I’m getting at is the “Zone”. Athletes experience it, artists performing fall easily into it, as do researchers staring at the whiteboard. Not all of course … I would even venture to say that most athletes, artists, and researchers never find the Zone but those that do shine bright.
What if, and here I incorporate Mike’s view on prophets, what if certain people, let’s call them prophets for brevity’s sake, find the Zone of spirituality?
**Since it is involuntary the government should spend it with that in mind but instead they spend like drunken sailors. In fact they spend so much they make drunken sailors look like Scotsman by comparison.**
Bron,
I suggest you adjust your artillery fire towards the guilty & apologize to drunken sailors & Scotsman everywhere.
Oky1 & Bron. Isn’t this “discussion” among a group of educated people, except for Gene, a perfect example of why democracies fail over time, except in this situation, it would never have had a chance in hell of ever be created in the first place. We would still be at war or under the Crown.
Could you imagine seeing those like Thomas Paine and Jefferson trying to influence the colonists into rebellion, called terrorism now, the benefits of a mixed economic model with limited protections of individual rights subject to the whims of the kind of men who seek political office.
You can bottle socialism and fascism under a different name, mixed economic model. but it still a duck.
The fascists cannot even determine a “Bill of Rights” and instead they want it to be left to the whim of the ruling oligarchy through a “living” Constitution, their puppet politicians and the uneducated majority.
Mike,
So they, prophets, stand at a slightly different angle when viewing the events surrounding them? I can buy that but there is something more to it I think … I’ll address that in my response to Tony C.
Tony C:
Sure it is the point. It is our money the government is spending given, in most cases, involuntarily. Since it is involuntary the government should spend it with that in mind but instead they spend like drunken sailors. In fact they spend so much they make drunken sailors look like Scotsman by comparison.
Medicare is a joke, they pay doctors and other service providers pennies on the dollar. This causes the rest of us to pay higher fees to cover the costs that arent paid by medicare. If I could pay a few pennies for all of my expenses I would have a 5% overhead too.
Gene,
What’s the gig?
Bron: I don’t care if you are forced to pay or not, that isn’t the point. There is no large system without waste. You were complaining about waste, but it is not a result of government, it is a result of reality. Large complex systems are not efficient, period. There will be waste, fraud, and abuse. Another period.
So what? We don’t all demand ultimate efficiency and zero waste in any of our other tools; you aren’t required to design to the absolute minimum possible cost and neither am I. Trade offs are made.
Governments waste less than private corporations, particularly on salaries of elite personnel. Medicare has 5% overhead versus the 30% of private companies. Government run hospitals in other countries have overheads a third of our for-profit hospitals in this country.
Government is a tool, it does not have to be perfectly efficient with zero waste in order to provide a function. My car gets half the gas mileage of the best new cars, but it gets me across town and it is fine with me if that costs me twice as much as it might. Buying better efficiency isn’t worth it to me.
You aren’t complaining about waste, you are complaining about coercion, and that is just too bad — There is no system that will not coerce you. If it wasn’t the government providing a needed service, it would be a private corporation coercing you, and being just as wasteful, but with the added cost of their profit.
Tony C. wrote
Bron: I don’t care if you are forced to pay or not, that isn’t the point. There is no large system without waste. You were complaining about waste, but it is not a result of government, it is a result of reality. Large complex systems are not efficient, period. There will be waste, fraud, and abuse. Another period.
Government waste is not the result of government? I can’t wait to see what baloney you’re going to come up with to tell us where it does come from. The definition of government is waste. “Sarcasm again.”
There are huge amounts of waste and fraud going on in every single government program and why “most” socialistic and communistic governments eventually go broke.
The politicians even know about it, and still do nothing about it. Why? because they are often involved.
And most of all Tony you should know why this is. Bron and I should not have to be telling you these things over and over again.
There is a specific reason why government is wasteful and full of corruption and fraud.
When an individual buys something for himself he cares about both the quality and price. When an individual buys something for society using societies money (taxation), he doesn’t care about either. What benefit would they derive from being frugal?
That’s is why government has never been good at producing things, running things, maintaining things, providing efficient services, etc.
Bron, I and others have over the last months, provided at least 15 to 20 different reasons why a mixed economic model fails over time. I also suggest to you that countries like Norway, your example of a desirous model, will be force to retune to a greater level of lassie faire economics if they are to continue to progress. India and China are example of societies smart enough to go from highly socialistic or communistic models to greater free levels of free enterprise. Look at how prosperous the average person is in Hong Kong, that has very small amount of natural resources.
Not only have we giving you the reasons why, we have also giving examples. I think you should keep ignoring all these things!!!
Tony C wrote: “Governments waste less than private corporations…”
You can find SOME corporations that waste more than government, but the MAJORITY of private corporations waste less than government.
I own a private corporation, and you can believe that because I am spending my own money which I earned through a lot of labor and sacrifice, waste is FAR less than what I observe in both local government and especially the huge overly fat federal government. Any waste in my corporation is directly reflected in lowering my income, which means less money for my daughters education or other needs.
Apparently a lot of your experience is working in well funded corporations. Were any of them publicly traded corporations? I suspect publicly traded corporations have more waste than private corporations. It is an artifact of spending other people’s money.
DavidM: If my home was frequented by a handicapped relative I would feel obligated to make it accessible to them. But generally if I need to meet a handicapped person, I feel obligated to meet them in places that let them move freely, and there is nothing particular about my house which makes it the best place to meet a stranger, in fact the opposite is true for most people’s houses that I have seen.
A public business doesn’t have that choice, they cannot effectively bring their restaurant or store or office somewhere else. And I do not think they should be allowed to discriminate against the handicapped, for the same reasons they should not have the choice of discriminating by race or color or religion. Allowing that proved to be so abusive and oppressive and systemic that it amounted to injustice and deprivation. So …. screw it, one more “freedom” we have to take away because the “free market” failed to provide any equitable solution, and we got sick and tired of waiting decades for some invisible hand or “economics” to deliver justice, and decided we would do it ourselves.
Tony C:
you are exactly right, some private sector companies suck. But I am not forced to pay for the CEO’s incompetence. I can purchase stock or not as I determine using my best judgment.
DavidM:
Handicapped parking is a big beef of mine, I see people who literally spring from their cars and sprint to the door parking in those spots.
I was at a movie once and was getting ready to leave when a family parked next to me, there were no elderly in the car, no walkers, no nothing except that blue tag. So I just sat there and watched them, I could see them talking amongst themselves, I imagine debating whether to get out of the car so they wouldnt miss the movie. After about 10 minutes, they all jumped out of the car, they didnt want to miss the movie.
If any guest blogger can assist, I have a WordPress snag in a reply to Skip, a few minutes ago.
Gene:
yes, it is a tax enforced by government.
When I see, with my own eyes, a restaurant forced to put a wheelchair bathroom on the second floor even though there is no way for a wheelchair to reach the 2nd floor and there is no requirement for an elevator, I would say that is wasteful. That goes on in this country on a regular basis.
The design team and the owner tried to explain to the local code officials but they insisted the bathroom was required to be wheelchair equiped and properly sized. The cost to do that included having to redesign the floor plan.
What is nonsensical is forcing an owner to incur additional costs for no good reason.
Skip: I reject the use of “their.” The government does not use fear mongering, if you are fearful it is because you wish to break the law.
Other than in small groups of a few hundred, people just cannot live together without rules, Skip. The rules have to be enforced. That takes force. There is no solution otherwise, our brains are not big enough and our lives are not long enough for a million people to each know and trust everybody in the group of a million people. The family of 20 or the tribe of 200 does not scale up, because our brains aren’t that big. For a million people to organize, they need rules and assurances as a way to be able to interact safely with strangers all day, every day, at least relatively safely. The alternative is anarchy, which we know from literally hundreds of independent experiences throughout history and quite recently results in brutality, rape, murder and enslavement.
If you want to see it as coercion and fear-mongering, feel free. That truly does not bother me, because it is what it is, the only way known to minimize brutality and injustice. If you are so ignorant or stupid that you think you would be better off without it, tough shit, the rest of us want law and order because we understand that nothing is free, and whatever we pay in the service of law is worth the profits of freedom, safety, interaction and cooperation we gain in return.
You cannot come up with any plausible means of delivering those benefits without using force to restrain or punish or kill the criminals. Nothing. Ever. If you think you can, you do not understand the predatory side of humans at all.
Bron: I have seen far greater waste in the private sector. Nobody in government earns more than the President (at about $400K a year) and even the rank of 4-star general is only about $215K a year combined with benefits that have a commercial value (for Generals) of about $25K. And that is total compensation, for persons in charge of tens of thousands of “employees.”
Corporations, particularly ones in which the officers of the company own well under 1% of the stock, flush stockholder money down the toilet like crazy. Their compensation is not tied to profitability, just like the banksters getting multi-million dollar bonuses from bailouts because their companies are bankrupt. CEOs get golden parachutes and millions in compensation regardless of performance, in some spectacular cases even though their management is spiraling their company into bankruptcy.
Bron,
That’s a practically nonsensical statement. Unless it is a government owned building? Other than code enforcement, the cost of ADA compliance in structures is borne by the owners.
gbk:
“Why do you presume that the cost of ADA compliance is greater than the potential benefit of inclusion?”
Based on the waste I see in government.
Blouise says: where did prophets come from and why did they want to share their particular “Word”?
IMO, prophets appear to promote some general solution of behavior they believe will address a problem or injustice. Christ tells people how to behave, Mohammad does, Buddha does, Confucius does. The Golden Rule tells people how to behave.
The problem all prophets have is a lack of authority, and claiming supernatural authority, reward and punishment is just the easy way out. Do it my way or suffer the wrath of God (and usually, “Don’t blame me, I’m just the messenger, blame God — but he might totally kill you if you do.”)
Whether the prophet truly believes they are the messenger of God is almost an immaterial detail, if Zeus does not exist the prophet won’t be contradicted. Which also means any apparent contradictions can be dismissed with untestable assertions of nonsense without any repercussions. I think that feature of religion, the ability to lie about supernatural will and repercussions, has been the path to a golden throne for many a sociopath, even in cases where the original prophet was sincere.
Tony, It is interesting that both religion and government use fear mongering to get people to tithe/tax for their desired programs and policies and of course they’re doing this for what is in the best interest of the majority since they are institutions set up to create social compacts for the mutual benefits of society. Please note sarcasm in the reasoning of this assertion.
Better yet, government get’s to initiate force and coercion to make sure the get their tithing based on such assumptions as “we should trust the ignorance, laziness or desperation of a poor man, over the integrity of a rich man”. The amount of assumptions society must make, requires a book and thus, it is actually quite impossible without them, to conclude what is in the best interest of society. Recognizing that most social programs require huge amounts of assumption in both the policy itself and the amount of funding required to pay for it is why most government programs fail in their effectively or costs way to much. .
Hence why both institutions are fraught with corruption and lies perpetrated to achieve their goals.
“Their” is the critical key to the understanding of who really has greatest controls over the political process and why all political system have failed throughout history.
Blouise says: I have often wondered if “religion” was initially developed as a means of trying to control the sociopaths …
In anthropology religion as a form of contract insurance has indeed been proposed; in particular some very early religions have no central “chief” in charge. They worship ancestors, ghosts, or believe in reincarnation. But one thing most religions still share is called “Karmic Justice,” the idea that bad deeds while living will be visited upon one later. In reincarnation religions, this is being reborn as a lesser being, like a cockroach. For ghost or ancestor religions, it was believed they controlled luck (in hunting, childbirth, battle) and disease, when a simple infection could prove fatal.
My own belief is that religion is a neutral invention, an early science much like astrology. By “science” I mean a sincere attempt to explain the natural world and turn the patterns they found into predictive tools.
But, truth be told, the human brain is not particularly well suited to science, because it evolved for a related but distinctly different purpose (immediate survival) which is at times much at odds with science which requires being precise, being scrupulously logical, and not jumping to unsupported conclusions. The brain is made for snap “best option right now” judgment. Climb the tree, run, jump in the river or fight the bear, but do it NOW.
One thing real science has to cultivate (and many scientists still do not) is the resilience to accept “we don’t know” as an answer. It is an unnatural response and behavior. Because of our brain’s strong survivalist bias, we want an answer right now, dammit, right or wrong, give me a best guess so I can DO something. Even when action is not required or immediate, we insist upon definitive answers.
Hence religion. Where does lightning come from? Attribute it to an angry God, that is an answer. On the survivalist scale that is not a bad answer; lightning does come in clumps. Dark clouds can look “angry.” Thunder can be anthropomorphized as a “voice,” and hiding while Zeus is “storming about” causing wanton destruction in anger is an appropriate response. It isn’t the best answer, which would lead to lightning rods and grounded Faraday cages, but not bad. Of course, being the wrong answer, it leads to wrong behavior; like sacrificing things of value to Zeus, and wasting time and resources propitiating Zeus or building Him houses and monuments.
The same goes for the rest of religion. What happens after death? “I don’t know” wasn’t good enough. Why are we here? “I don’t know” wasn’t good enough. Why do bad things happen to good people, and why do good things happen to bad people? “I don’t know” isn’t good enough, and “random luck” isn’t good enough. So make something up, I want an answer!
I think religion was quickly hijacked as a tool of control and advantage. And just like in companies and politics today, sociopaths are attracted to money, power, and privilege. The best sex, the best food, the best accommodations, the most respect and deference (and they don’t care if is is fear based), the most servants at their command, not just for their bodily needs but for art, entertainment, even war.
All made much easier when religion can be manipulated to make people see the sociopath as supernaturally favored and entitled.
pete9999,
“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.”
I know, my wife’s new bug takes eight quarts of oil, compared to the original 3.16 quarts. She likes it, that’s all that matters to me.
Bron,
“. . . for jobs they were trained to do.”
Sounds like statist, socialist, communist, fascist planning to me.
Seriously, read your own words juxtaposed with your arguments.