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 says: I know some do not but just because they do not does not mean ethical actors should be punished through regulations meant to stop the bad actors.
Yes, it does. If the regulations stop unethical acts, then ethical actors should endorse such regulation, because unethical acts are profitable and give their competitors an edge. If unethical acts were not more profitable than ethical acts, in some sense of that word (financially, emotionally, or conveniently) then people would not commit them.
Caring for the safety of one’s workers and customers costs money, that is why BP puts the expected costs of wrongful death lawsuits into their spreadsheets (as we saw come out during the Gulf Spill) and computes whether they make more profit by killing a few workers than protecting all the workers — And when the computer comes down on the side of killing a few workers, that is how they rolled, and killed a few.
By your logic, outlawing murder should not be done, because sure, less than 1% of the population are murderers, so why should the other 99% be prevented from committing murder if their profit depends upon it?
Tony C:
Blockbuster Video said phuk em and they got phucked. So I am not sure you really understand business or my philosophy. First and foremost, you must behave ethically and morally in your dealings with people. Otherwise you are going to lose your business, at least at the small business level. But large corporations do act ethically and morally. I know some do not but just because they do not does not mean ethical actors should be punished through regulations meant to stop the bad actors.
I dont think it is any coincidence that one of the most heavily regulated industries, finance, has some of the worst ethical and moral violations. These people used to be scrupulous about their word, millions of dollars were at risk and the people making the deal only had their personal self- interest to protect each one of them. If they did hold up their end of the deal, their career was over. Now they receive fantastic bonuses paid for by taxpayers with money taken by the threat of imprisonment or large fines.
Guest Bloggers: That’s weird. I had a comment to Bron that was ON the website, and which was emailed to me like normal. Now its gone. #736230.
Strange WordPress waters, today.
Bron says: How do you know the many regulations and taxes havent perverted the “invisible hand”?
I count on that, the invisible hand has no morals or conscience, all that matters to it is profit. That is why regulation and taxes are necessary, to restrain the invisible hand from harming people for profit. That has always been quite explicit, Bron; people’s selfish interest is, by definition, excludes the interest of others; their interest is up to them. Whether they have any bargaining leverage or not, whether they have power or not, whether they have food or not or safety or not, phuck ’em.
Bron says: But in any event DavidM is correct in that people make up corporations and the philosophy of the top executives permeate the corporation. If the leadership are ethical actors, the corporation will be a good citizen, if not you get Enron and Madoff.
Yes, people operate corporations. That does not make the corporation a person, or citizen. It remains an inanimate machine, without conscience or feeling. We may anthropomorphize Google or Walmart as a conscious being for convenience, but we don’t mean it literally. They are just machines being operated by people, it is the people operating the machine that are good or evil, not the machine itself. Similar to a knife, in that respect. A knife is not a conscious killer. It is a tool that can be deployed by a person to slice a tomato, or murder someone.
Tony C wrote: “That does not make the corporation a person, or citizen.”
I do not believe a corporation is a citizen. What I have said is that a corporation is people. Another way to say it is that a corporation is an association of people.
The way in which a corporation is considered a person is for the sake of making laws applicable to the corporation which conducts commerce as if it were a person. A corporation is a group of people acting as one. A corporation is considered an artificial person for the sake of applying laws to it that normally apply to a person. For example, laws of taxation, or laws of due process, or property ownership laws are applied to corporations in the same way as they apply to a person.
To counter the statement “a corporation is people” with “a corporation is not a citizen” is inappropriate.
The reason it is important to recognize that corporations are people is because some people want to strip corporations of their rights in order to invoke socialism. When you strip corporations of rights, you strip people of rights. For example, I earn my living through a corporation. When you strip me of my rights to earn a living through my corporation, you are stripping me of my rights. You are communicating to me that you do not honor my rights if I associate with others. That is morally and ethically wrong. I should be able to retain my rights when I associate with others.
Bron: I know that. You are perfectly capable of using an argument when it serves your purpose and rejecting the exact same argument when it does not. It is the only way you can possibly arrive at your skewed views; logic does not matter to you, only your emotional commitment to selfishness and that nobody should ever be allowed to tell you what to do or punish you for harming others. I knew it from the first time you said “all taxes are theft.” I have no expectations of coherent logic from you, Bron.
Tony C:
Just to be clear, I dont reject the “invisible hand”.
Tony C:
He also said that all working in their own self-interest was a good thing.
How do you know the many regulations and taxes havent perverted the “invisible hand”? But in any event DavidM is correct in that people make up corporations and the philosophy of the top executives permeate the corporation. If the leadership are ethical actors, the corporation will be a good citizen, if not you get Enron and Madoff.
Bron: Funny you use that as an excuse to reject Smith. I have for years said complexity and size is where the Free Market system fails, and you rejected that argument then, only to trot it out now to claim Smith was wrong about Limited Liability, as if you just thunk it up.
Although he is not using our modern terminology, Smith in his collective writings effectively admits his system fails if liability can be avoided. Liability is loss of profits and therefore one of the important consequences of bad action. Where is the mechanism to keep people honest and cautious if they can shift the personal cost for harming others to shareholders (or citizens) should their bets lose, but still enjoy the personal gains of high risk if their bets succeed?
If you reject Smith on the grounds that his free market system does not correctly scale to enterprises with hundreds of people and deploying millions of dollars, then you have to reject Smith as your prophet for how any national economy should work, it would not even apply to Norway with five million people, much less the USA.
Tony C:
Adam Smith lived at a time when there was no electricty, no airplanes, no automobiles, no rockets, no 100 story building, no MRI’s, etc. You need more than a few people to build these things and you need more than a few million dollars to develop them into viable products.
can someone free my comment to Tony C?
thanks in advance.
My last reply to Tony was snagged by WordPress. My thanks in advance to Gene and other members of the Post Rescue Squad who hopefully will free it.
*it is often*
David,
If you actually knew what you were talking about – and you don’t – you’d know what every lawyer knows about piercing the corporate veil.
In reality, it’s not nearly as easy as you seem to think and happens most often with small closely held corporations or where there is extensive co-mingling of assets (alter-ego theory), corporations set up strictly for tax avoidance (evasion theory) or grossly undercapitalized corporations. Fraud, another reason to pierce the veil, is a crime in itself regardless of form. Absent one of these factors, piercing the corporate veil is rarely successful. The subsidiary nature of the corporation factors in too as the courts pierce about twice as often to hold individual persons liable than they do to hold a parent company responsible. Also the nature of the plaintiff factors in to the success in seeking to pierce the veil. Another entity, governmental or corporate, is almost twice as likely as an individual plaintiffs to successfully pierce the corporate veil which can be translated as “big guys win when they fight back, small guys don’t”. The nature of the claim makes a difference in success as well. Contract claims are generally more successful than tort claims as well. The rest of the factors the courts can consider (inadequate record keeping, etc.) are rarely dispositive to the courts decision to pierce.
For example, if I were to sue Citibank and seek to get through the veil to Jamie Dimon? I’d have a better chance of jumping over the Empire State Building. If the SEC or IRS or DOJ or BOA went after Dimon? They might get to him. Operative word there being “might”.
Limited liability is a powerful tool.
That is often abused by bad actors and needs reform because of that is simply the nature of things.
Thank you for your intrepid heroism, Post Rescue Squad!
DavidM: No, people hire people, people conduct research, people invent things. All the corporation does is own things and engage in financial transactions. It owns the results or benefits of people’s labor, it owns the intellectual rights to their research and invention. If you take all the people away, what you have left is NOT nothing, it is valuable property. Like a lawnmower, the corporation does not produce anything without people operating it. Like a TV, it does not serve any purpose without people using it.
Take a look at Walmart’s Balance Sheet: Take all the 2.2 million people out of Walmart, and what you are left with is $200B worth of assets spread over 11,000 stores (and many thousands of bank accounts and vaults). Like a lawnmower, Walmart is an “inanimate object” that exists even when the people are taken away.
The same is true for any corporation; all it does is own something. It is legally allowed to engage in financial transactions, ownership of tangible and intangible property, and be regarded as an entity in courts. That’s it. That is not enough to be a person.
And I repeat, we are talking about what should be, not what courts have held. Trying to appeal to some corrupt decision is irrelevant, there is no reason society should consider any corporation a person, it provides zero benefit to society to do so. Adam Smith, by the way, was opposed to any form of Limited Liability, it and “stock companies” were a new idea coming into being during his lifetime. He also claimed it was foolish to believe a hired financial manager would act in the best interest of “stock owners” instead of his own interests.
If we followed Adam Smith’s ideas, we would have no corporations, stocks, or limited liability at all, for anybody. The country would be filled with very small companies, owners would always be personally liable, and the law would probably have evolved much differently to better specify exactly when businesses could be held liable. With only small businesses in the country, lobbying would be curtailed, the rules would make more sense, competitors would be more numerous so employees would have more options, it would make far less sense to ship jobs overseas without the giant economies of scale that activity relies upon, and business owners might waste less and (being personally liable with their entire fortune) take far fewer chances with employee health, safety and lives. So maybe Smith was right, maybe we should work toward doing away with the entire idea of the Stock Market and Limited Liability in all its forms. It might turn out much better than the corrupt system we have now.
Any Guest Blogger on the Post Rescue Squad; I lost a reply to David, a few minutes before this post. Any help would be appreciated.
DavidM: That is like saying that without the state, people are nothing and have no power.
No, it is saying that if the government (which ideally represents the will of the people) does not formally agree with you that your liability is limited, then it is not limited.
Fortunately for you (and me and many others) the government has made the process of forming a limited liability organization (LLO, like a C-Corp, S-Corp, LLC, LLP) easy and inexpensive. But we still must get it registered and obey their rules (like not mixing personal and business expenses, and other rules) or the limited liability veil is penetrated and you can be held personally liable. And if you do not register your LLO in the first place, you will have nothing but a worthless piece of paper. People do NOT have any power to obtain Limited Liability without agreement by our Government. The power exercised by Government is (ideally) derived from the People. But the People are specific, if you want Limited Liability, you must apply, register, and follow the rules, or they will not honor or protect your Limited Liability, and if your LLO is found liable for damages then their courts can find the owners and officers personally liable.
If you do not know that, you should really look up “piercing the corporate veil”; if you own a corporation or any LLO and are not following the rules you are really playing with a loaded gun.
DavidM: The analogy is not wrong at all. The corporation is a puppet because it does nothing without a human pulling the strings. The corporation is a machine that does nothing without a human pulling its levers.
Whatever speech you get is yours, not your corporation’s, it is spoken by you. If you get more time because of your position, it is no different than me getting more time in front of a crowd because I am well known in my academic field, or a veteran, or Brad Pitt being given more time because he is a famous actor. That is actual speech and a reflection of the person.
Money is not speech, and money that legally belongs to the corporation should not be spent on political speech. If you want to spend that money, pay it to yourself, pay your taxes on it, and then spend it as you wish on your speech.
Corporations are not people. Lawnmowers are not people. Robots building a car are not people. My TV is not a person. They have no Rights, they are machines. They can be bought and sold. A corporation can be bought and immediately dissolved, it has no Rights to existence at all. It is not a person. It is run by persons. We may anthropomorphize them, but that is metaphorical shorthand only, they are not actually people or living things in any way, they are just machines being operated by people.
Tony C wrote: “Corporations are not people. Lawnmowers are not people. Robots building a car are not people. My TV is not a person. They have no Rights, they are machines. They can be bought and sold. A corporation can be bought and immediately dissolved, it has no Rights to existence at all.”
A corporation can only be bought and immediately dissolved if the people who form the corporation agree to do it. It can only happen if the people who form the corporation abandon the corporation for a price or other reason. Such is no different than when a person decides to commit suicide. The fact that he can end his life does not mean that he is not a person right up until the time he ends his life.
Corporations are people. Take away the people forming the corporation and nothing exists. Not the same with lawnmowers, robots, or television. They exist independently when the people leave.
The courts have ruled that corporations do have rights. For example, rights articulated within the 14th Amendment, the 1st Amendment, and the 5th Amendment have all been acknowledged by the courts as applying to corporations. In addition, the entire United States Code which articulates rights, duties, and obligations of people applies to corporations in all laws that refer to “person” or “whoever.”
Corporations hire people, conduct research, invent things, pay taxes, and do all manner of things that people do because a corporation is an association of people. Lawnmowers, robots, and tv’s do not hire people, conduct research, invents things or pay taxes because they are not people. They are inanimate objects that exist even when the people are taken away.
However, if you’d like to try to limit your own liability by inscribing on a piece of paper that you have limited liability just because you and your buddies say so?
Be my guest.
See how that works out for you.
Gene H wrote: “… if you’d like to try to limit your own liability by inscribing on a piece of paper that you have limited liability just because you and your buddies say so? Be my guest. See how that works out for you.”
The corporate shield is not as mighty as you like to pretend it is. Just ask Bernie Madoff how that corporate shield worked out for him.
It really is quite humorous how some of you anthropomorphize corporations when it suits you, like to collect taxes or to demonize it as an evil force in society responsible for all our social ills. But then when some of us talk about good corporations, suddenly corporations become this legal fiction that does nothing but provide a mask behind which evil people do all manner of nefarious projects. The truth is that corporations are people, and because there are good people and there are bad people, you will have good corporations that can be trusted to do the right thing, and you will have bad corporations that cannot be trusted.
“This is yet another legal misconception on your part. The corporate charter is not written by the state. It is written by the people, and therefore its power comes from the people forming the corporation.”
And without state sanction?
It’s a meaningless piece of paper.
Try again. The misconception is entirely yours.
Gene H wrote: “And without state sanction? It’s a meaningless piece of paper.”
Ridiculous. That is like saying that without the state, people are nothing and have no power. The power exercised within society is derived from PEOPLE, not from the legal fiction called government.