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
Gene H:
All that means is congress can do whatever it wants. Who determines what is beneficial to the people? What does beneficial mean?
Come on, that only says that congress can do whatever it wants as long as they pass a law that says they can do it. It is BS.
Dont hide behind the Constitution while employing liberty-killing laws. The Constitution is a living document in the sense that it takes into account concrete changes in our society. A newspaper is no different than this blog in regard to free speech. That is what they meant by a living document, that we [their posterity] would take the abstract principles of justice, equality and liberty and apply them in the current day. Keeping in mind that individual rights and limited government were the founders legacy to future generations.
What has happened in the last 125 years is a monkey fuk of our Constitution by little minds with an agenda of tyranny.
Skip says: You suggested some ways in which companies might be inefficient. I don’t really care however unless I’m a shareholder, management or employee.
Or the guy that cannot get the drugs that will keep him alive, because those inefficiencies are paid for by customers and the inefficient company has a monopoly on the drug, which lets them set prices at astronomical prices to cover their inefficiencies, even if that kills a few poor people in the bargain.
Skip says: If the management is inefficient, the Board of Directors will get new ones
Ha! Man, you really are like a fifth grader. The Board of Directors is in collusion with the CEO and other officers, they don’t make waves because if they don’t make waves, everybody gets paid, with stock options and lavish meetings. That is why those meetings are held in lavish settings, it isn’t a meeting, it is a perk of being on the Board. Who is on the Board? Other CEOs! The CEO you are setting salaries for? He’s on your Board and sets your salary! Or close enough, if you sit on the board you go along to get along, that’s the deal. Why do you think Board members resist new board members so strongly? They don’t want anybody crashing their party.
Skip says: and if you are an employee, you can leave and go to another company that is more efficient and pays better.
Ha! Again! First, “efficient” companies pay as little as they possibly can; if you move to a more “efficient” company you will probably take a paycut. Secondly an employee, when shopping for a job, will usually take the highest paying job they can get, so the idea they could leave and find a job that pays more is ludicrous; most employees are making as much as they can make where they are. It is an aspect of Peter’s principle; not only do people rise to their level of incompetence, they also rise to a level of being paid more than they are actually worth.
This is also a part of the auction dilemma: Namely, that when people bid for goods or services in an auction setting (like employees), the last bidder (and winner of the auction) is likely the person that has most overestimated the value of the offering (in this case, the employee). Something that has been verified and shown to be true in several auction settings. Which means, again, most employees would be unlikely to find a better paying job, particularly if their current company is inefficient.
David,
Your lack of understanding of the basic terminology and the actions of your heroes in furthering their private control over government via groups like Citizens United and the SPN is simply homework you’re going to have to do yourself. I’m not going to spoon feed it to you. However, one need not be a governmental official to be a plutocratic fascist. You’d know that if you understood either term.
Bron,
No. Plutocratic fascist is a code word for plutocratic fascist. That they do what they do in this country under the guise of the free market is a symptom of what I’ve been telling you all along about laissez-faire economics – it breeds economic tyranny. There is nothing quite so economically and politically tyrannical as a plutocratic fascist.
Gene H wrote: “No. Plutocratic fascist is a code word for plutocratic fascist. That they do what they do in this country under the guise of the free market is a symptom of what I’ve been telling you all along about laissez-faire economics – it breeds economic tyranny. There is nothing quite so economically and politically tyrannical as a plutocratic fascist.”
I can’t understand what you are saying. Are you suggesting that they are kind of like the way people accused Hillary Clinton as being the real president behind Bill Clinton? Are you saying that they are a shadow government behind President Obama? What the heck are you trying to say?
Bron,
I single Thomas out because he’s simply not qualified for the job. The ABA conducts rather thorough reviews of the casework of prospective SCOTUS justices. This is done by teams of legal scholars. Since they’ve been doing that? Every single prospective justice who has been appointed came from the pool of candidates ranked “highly qualified”. Except for Thomas. Who ranked “qualified”. Which simply means he wasn’t ineligible for the job, but he certainly wasn’t one of the best candidates. He should be on a Federal bench somewhere maybe. But SCOTUS? He’s out of his league. When he writes a majority opinion (which is rarely) it’s on some softball issue (relatively speaking). His logic and legal reasoning is middling at best and poor at worst. He has no business being on the Court. As much as I dislike the others in that Gang of Five? At least they are actually qualified to be there based on their work, not simply just technically eligible.
DavidM:
Plutocratic fascist is code language for free market capitalist.
WordPress ate one of my replies. Oh well.
Bron,
If you understood that in context, you’d know the issue isn’t spending on the general welfare that concerns Madison the most. It’s the Necessary & Proper Clause which in itself does contain rather expansive language and is a hot topic even among legal scholars. However, later jurisprudence shows that there is a limit to the N&P (and consequently the GWC).
“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. 316, 422 (1819). Emphasis added.
In other words, what I said earlier.
Gene H:
If Thomas shouldnt be there, then Sotomajor shouldnt be there either, probably Kennedy as well.
I dont know why you would single Thomas out.
DavidM:
That is probably a correct statement. I would add Sotomajor and Kagan to your list. Kagan has an agenda and Sotomajor has not a clue.
That’s your opinion, David.
Then again, it’s also your opinion that homosexuals should be denied equal rights because it offends your “traditional values” – an opinion Scalia himself has expressed.
So you got that going for you and your notion of “living in freedom and liberty”.
Unless, of course, you’re one of them nasty ol’ gay people. Then you get to be a second class citizen because somebody not a party to your interpersonal relationship wants to have approval over your loved one’s gender before allowing you to enter into the specialty contract that is marriage at law.
What is that word when someone expresses a higher moral or ethical value than they actually practice? Histological? No, no. That’s not it. Hypnagogic? Nope. Hypodermic? Damn. So close . . .
Scalia? Is only saved from being the worst judge on the Court by merit that Thomas shouldn’t be there at all. Then again, I think everyone should have equal rights and equal protection under the law and I understand what that entails without imposing my personal subjective morality upon them by force of law.
Gene H wrote: “Then again, it’s also your opinion that homosexuals should be denied equal rights because it offends your “traditional values” – an opinion Scalia himself has expressed.”
There you go, misrepresenting my opinions again. I believe in equal rights for everybody and have always argued this position. You are the one for unequal rights by making certain classes of people more favored and superior to other classes.
Gene H wrote: “Scalia? Is only saved from being the worst judge on the Court by merit that Thomas shouldn’t be there at all. Then again, I think everyone should have equal rights and equal protection under the law and I understand what that entails without imposing my personal subjective morality upon them by force of law.”
The difficulty you have is that you seem to think that morality is subjective. Scalia is wiser than you in this regard. Scalia actually understands Natural Law Theory, unlike you, but more importantly, he understands how corrupt men like to bend and twist words to make a law say something they want it to say. His concept on originality anchors the SCOTUS in good jurisprudence. He is one of the few in history actually saving the court from self destruction.
I’ve not met Thomas yet, but my daughter and her husband (both lawyers) have spent a little one on one time with him on more than one occasion. They have a very high opinion of Clarence Thomas, and the things they tell me are completely contrary to your opinion of him. I put Thomas WAY AHEAD of Ginsberg and Breyer.
Skip:
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s27.html
Madison’s explanation can be found in the link above.
I look at the Constitution holistically, you cannot pick and choose the meaning appart from the rest of the document and the Declaration. The primary purpose of our founding was to estabish individual liberty and in my opinion you must look at all sections through that lens.
Gene,
You are correct. The Valeo decision was a watershed moment.
Bron,
Really? The same straw man as someone else just used?
Again – the GWC is not an “unlimited commission”. Any legislation taken in furtherance of the GWC must be otherwise Constitutional. I can’t make it any plainer than that.
Gene H wrote: “Again – the GWC is not an “unlimited commission”. Any legislation taken in furtherance of the GWC must be otherwise Constitutional. I can’t make it any plainer than that.”
Well, I think I can make it plainer. Two SCOTUS decisions in the 1930’s started getting it wrong about the GWC. As explained by Jame Madison and Thomas Jefferson through posts made in this thread, the General Welfare Clause does not stand alone. It is defined by the enumerated powers following the phrase. It is not meant to be pulled out of that one very long sentence, but to be understood in the context of the enumerated powers. That means it is unconstitutional for the government to be involved in education, social welfare like social security, medicare, food stamps, bank bailouts, company investments like GM, etc. Where else in the Constitution do you find the authority granting Congress the power to do these things? The Constitution spells out what Congress is allowed to spend on, and these other things are not mentioned. If it is not specifically spelled out, then the power resides with the States and the people, not with Congress and its power to tax and spend.
Skip:
http://www.constitution.org/fed/federa41.htm
“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.“
raff,
I think we need to revisit the progenitor of Citizens United as well; the beast that is Buckley v. Valeo. The idea that money is free speech? Is patently ridiculous.
Gene,
I agree with your response to skip, but as you suggested, Citizens United opened up the floodgates to unlimited, secret money into the political process. Until we get Citizens United overturned, we won’t improve much.
Skip,
The problem? Is you think the nature of our budding oligarchy is socialist and it isn’t. They are working as fast as they can to dismantle the social safety nets. Socialists would be working to strengthen and/or expand the nets. Our would be tyrants are by in large a blend of corporatists/fascists and a smidgeon of theocrats who want to privatize government functions so they can profit from them. That’s what plutocratic fascists do. That’s what the Kochs are: plutocratic fascists.
As far as the judiciary goes? Yeah, they are the last line of defense. And the politicized skewing of SCOTUS’ current composition? Is not in the favor of expanded and equal rights for all but usually land on the side of money ala that abomination that is Citizens United.
You should care what the legislative does. They are the single most powerful branch of government. They formulate and promulgate the laws. If it’s a bad law policy-wise but otherwise Constitutional? The courts can’t do jack about it.
Gene H wrote: “That’s what the Kochs are: plutocratic fascists.”
Unintelligible as written. First, the Kochs hold no government positions from which to rule. Second, everything they do is fighting against fascism. Please name your best example of a fascist thing that they have done.
Gene H wrote: “You should care what the legislative does. They are the single most powerful branch of government. They formulate and promulgate the laws. If it’s a bad law policy-wise but otherwise Constitutional? The courts can’t do jack about it.”
Right you are! And the legislative has the power to change the Constitution, and the courts can’t do jack about that either.
Oky1:
I meant no offense to Scotsmen, I was mearly saying that Scotsmen are known for their frugality.
No offense to sailors either sober or drunk was implied. I personally see nothing wrong with getting drunk when back on dry land.
Tony C sez: “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. ”
Yes, please, as quick as humanly possible because an oil rig can cost a million plus per day to run. So yes, do abandon frugality and spend $50k on that part which costs $25k so it can be on site by 12 PM the same day.
I dont about you gentle reader but stepping over a dollar to pick up a dime is pretty stupid to do.