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. Blouise,

    Years back I did study divinity & set it aside.

    I ran into some people that are looking at the subject from a different angle that I hadn’t considered both.

    I haven’t study enough to properly describe it other then it’s tapping into the energy available by attempting to be a decent humanbeing.

    “Use the Force Luke”, I guess one might describe it like that.

    And no, me and the boy are not setting around watching Starwars movies over & over again, we got over that phase years ago. 🙂

  2. Happy New Year to you all. I am off to beautify the self in preparation for the family’s New Years Eve dinner.

  3. Tony C,

    That is extremely frustrating. May I suggest that you write your posts in a word program first then copy and paste.

    If one thread won’t take the posts, probably due to length, pick another, shorter thread and post it there then leave instructions on the original thread as to where you have posted the comment.

    WordPress can be beaten with creativity

  4. DavidM: As I said, your experience will not scale. Can you investigate and approve 5,000 checks per day and know what every one of them is for? No, you cannot.

    1. Tony C wrote: “As I said, your experience will not scale.”

      I agree. Just pointing out that your stereotype of “private corporations” as being large wasteful corporations is not the kind of experience from which people like me and Bron speak.

  5. DavidM: As I said, it doesn’t scale.

    And yes, mostly public corporations are large organizations with hundreds or thousands of employees. Most small companies do not need or cannot afford my services.

  6. Oky1,

    The official hymn/song of the Apostolic Disciples of Prophet is Pennies from Heaven.

    Elaine is writing our creed as we speak.

  7. DavidM: As I said, it doesn’t scale.

    And yes, more than half were public corporations and others were rather large organizations with thousands of employees. Most small companies do not need or cannot afford my services.

  8. Elaine,

    I am now. 😉

    Would you like to contribute?

    We are the Apostolic Disciples of Prophet …

  9. Blouise,

    A line from a song I adopted as a guide for my personal life & business ventures goes like this:

    “You can always judge the distance by the company you keep”

    I recall the past opinions & actions of Rush Hudson Limbaugh III & I wonder why some wish to claw into the gutter with him.

    Of course with all the flaws of humans it isn’t always so black & white.

  10. Blouise: I am quite familiar with the Zone; I spend many a day in it.

    I don’t know about a Zone of spirituality, but I do think that people meditating on the problems of humanity and searching for a solution can get in the Zone and be inspired to devise, say, an approach to life that seems to them must work. Just as I may obsess about a difficult problem for months and suddenly, after thinking of fifty things that won’t work, have an idea that really could work (and sometimes does).

    I think obsessive compulsive problem solvers like me are just born, and thousands of years ago would have focused their talents on the problems and opportunities for change available to their time. For Archimedes it was some interesting arithmetic and engineering problems of his day; for others it was societal organization.

    I think the spirituality part is just an artifact of the time, everybody believed in magic and the supernatural and it was still an “open market” for new ideas in that realm. Less so, these days, the market for religion has become pretty mature. There are still some start-up cults, but not really a lot of new ideas for religion, at least not any I know about. I guess Mormonism was the last big success.

    So anyway, I think some prophets were really trying to solve problems and found creative solutions that people liked and adopted, that made them feel better, at peace, righteous, etc. And celebrated the founder that had the answers for them, as a messenger of their God.

  11. Bron,

    I’m agreeing with some of your positions.

    GeneH was a good enough guy to post some of his positions.

    I haven’t had the energy to respond properly to them yet.

    It is among his positions in which I believe we can find the areas we do agree on & then we won’t waste time on anything other then the points we may never agree on.

    **Gene H. 1, December 26, 2013 at 8:05 pm **

  12. Oky1,

    Drat … the way posts fall in line. My post at 12:53p was in response to yours at 12:48p … though the evil side of me thinks it could also fit nicely as a reply to 12:52p 👿

  13. Blouise,

    What is it inside you that causes you to attempt to be a good decent person & at the same time avoid commenting evil acts?

    I suggest it is the “Great Spirit”.

    On the other hand what is it that causes some to cling to their “Traditional Christian/Muslim/etc Religious Customs” of lynching those they fear & beating their wifes into submission?

  14. Skip says: 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?

    This argument applies to any large corporation. One of my brothers in law works for a giant oil company as a purchaser; he is not spending his own money, and nobody above him is pinching any pennies: Just get the trucks, pipe, or equipment to the site on time.

    I have contracted for all sorts of companies, in the large companies nobody is spending their own money on anything, not even the CEOs and officers. What benefit would they derive from being frugal? Their salaries and perks no longer even depend on profits; shareholders don’t get to decide that, or fire a CEO.

    I worked for an insurance company, same thing. I worked for a weapons developer, same thing. I worked for a very large for-profit hospital (in fact where I met my wife), same thing.

    You guys make the mistake of thinking that things scale when they do not. Knowledge and awareness do not scale.

    Salaried employees do not share in profit, they get paid the same if they are frugal or wasteful. Their supervisors cannot know everything they do, otherwise there is no point in hiring somebody. As one moves up the chain of command, more and more information is necessarily lost, the CEO in Florida doesn’t know how fast the guys on the factory floor in Wisconsin are working.

    Awareness of what is going on in one’s company does not scale, a person can only be aware of a finite amount of new daily information. The vast majority of employees are disconnected from any profits to be made, and are not motivated to take any initiative, they do their job and go home. The vast majority of the front-line supervisors are the same, and their department managers, and the factory managers, and regional managers, and division managers. Private ownership as a cure for waste stops working by the time you reach a dozen or two dozen employees, and certainly doesn’t work once a company is public and the “owners” (shareholders) have lost all say in company policy or operations.

    1. Tony C. You suggested some ways in which companies might be inefficient. I don’t really care however unless I’m a shareholder, management or employee. If the management is inefficient, the Board of Directors will get new ones and if you are an employee, you can leave and go to another company that is more efficient and pays better.

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