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
**The whole system is messed up from top to bottom by all these regulations protecting people from mean ole businessmen, who the hell is protecting us from bureaucratic do gooders saving us from ourselves? **
Exactly Bron,
Much of it is they’re not trying to help anyone but the insiders through the arbitrary use of laws/regs.
I hate it but that’s why I went with an overseas operation.
I mean how can anyone do business here when you start a project commenting time/money to it under one set of laws/regs & then they change them half way through.
I think your correct laws/regs costing more then 25% of the total price.
Most everyone should be paying cash for homes anyway. They don’t even think it through & they want the biggest, not what they can afford.
And Wallst needs the loans to jobless/cashless Hobos so they can defraud multiple investors selling the same bad loan over & over again.
Commercial Banking/Insurance/Building business is not rocket science.
IE: Paul Volcker/William K Black
Back to the top: Making a 10 feet hallway 6 inches wider I think makes it better in most cases. If the going rate is $100, which I haven’t check lately, that 6 inches of width is $500.00
WordPress doesn’t like me today. My reply to Mike Appleton was snagged. Could a guest blogger help free it for reading please? Thank you!
Oky1:
I think that is great to do that. The cost is probably less than $500.00 per house if done from the start.
But why should anyone pay even $100.00 extra for a house that at some point in time might be used by a person in a wheelchair? The only person who incurs that cost is the first owner.
But what about the intangible costs that increase the cost of homes?
“The estimates show that, on average, regulations imposed by government at all levels account for 25.0 percent of the final price of a new single-family home built for sale. Nearly two-thirds of this—16.4 percent of the final house price—is due to a higher price for a finished lot resulting from regulations imposed during the lot’s development. A little over one-third—8.6 percent of the house price—is the result of costs incurred by the builder after purchasing the finished lot.”
http://www.nahb.org/generic.aspx?genericContentID=161065&channelID=311
From where I sit, I think the number is quite a bit higher especially in communities which have rent controls and zoning which makes lot sizes larger so that the quantity of buildable land is minimized.
The local building officials have added at least $25,000 in direct permitting costs to new homes where I live. Much of it in increased engineering fees to comply with new regulations, many of which are suggested to the local authority by associations shilling for their member’s products.
The whole system is messed up from top to bottom by all these regulations protecting people from mean ole businessmen, who the hell is protecting us from bureaucratic do gooders saving us from ourselves?
http://msnvideo.msn.com/?channelindex=8&from=en-us_msnhpvidmod#/video/636a0171-371f-4a88-9b32-4dd172f5dbce
printing houses could save 30% on costs.
Bron,
Decades back I was doing maintenance of a home in which guy I became friends with was confined to a wheelchair.
I repeatedly saw him having trouble getting into the bathroom & elsewhere because the doors/hallways were small.
Even though building codes did not call for it, from then on I put bigger doors & hallways in everything I built.
The likely cost averaged about $500.00 at house.
No, I didn’t get a tax deduction nor did I expect one.
I was just thinking that could be me, a family member or another friend in the same tight spot.
While I thinking of it another point I’d like to note.
We’ve all seen the propaganda, that corporation’s/503 foundation’s capital is very important to the corporation/foundation so they deserve special treatment of it.
What is missed is that to the average worker/citizen/our general economy their capital, (cash), is just as important if not more so.
At a minimum the worker/citizens asset should have equal treatment as the next entity.
Where that equal line is, you can guess.
Corporations use contracts. The whole point of incorporation is that the corporation can act like a person before the court or law for the purpose of owning property, signing contracts, buying and selling. Act like a person.
Which means a real person can do anything a corporation can do. They would just be liable for harm, like a corporation is liable for harm. The advantage of being a corporation is to limit that liability to the assets of the corporation.
Bron,
(meant as a good natured response in case you need to know)
Re: Equal Protection Under the Law
What if TonyC/GeneH wants to get into the biz of a big Wallst Globalist bank like someone like Jamie Dimon/Warren Buffet & use the titles to all my neighbors homes/farms, cattle, crops, sacrosanct funds held at other financial institutions & use the technique known as Rehypothecation for their owner financial dealings?
Corporations are same as people/Citizens & entitled to their Rights.
The animals on animal farm are all equal are they not?
(sarc off)
http://en.wikipedia.org/wiki/Hypothecation
DavidM:
Your views of the power of a corporation are peculiar, and wrong.
1. A corporation is not an association of people. An association of people is called an “association.”
2. A corporation derives all of its powers through statutory enactments. Since there is no constitutional right to conduct business in corporate form, we could abolish corporations tomorrow.
3. When a corporation is organized, the promoters may not by agreement authorize the entity to do anything which corporations are not permitted to do by law.
4. Your belief in your personal responsibility for the actions of your company is immaterial because it has no legal effect unless you expressly undertake personal liability, by signing a personal guarantee of indebtedness, for example.
5. There is no commonality of identity between a corporation and its owners. A corporation exists as an entity in its own right. That is why it continues to exist when its owner or owners die. That is why it is able to contract in its own name.
Bron: Those write offs are available to any legitimate business, they aren’t exclusive to corporations. The reason for incorporating (or forming an LLx) is for the limited liability, or more precisely, to divorce the business funds from our personal funds in the eyes of the court, should that ever become an issue.
tony c:
people can incorporate any time they want, it is available to all. And why wouldnt you? you get some tax breaks. Have chickens? Sell some eggs and your costs are write offs, have a garden? sell some veggies at the end of the driveway. Anyone can incorporate.
P.S. Thank you, Post Rescue Squad, whomever you are….
DavidM says: I would say it is not really even a reason at all because my personal moral ethic is that I hold myself responsible for everything my company does.
Except your “personal moral ethic” is obviously terrible, and your apparent ability to incorrectly rationalize anything you feel like doing as “ethical” means that if a jury decides you ARE liable, you will not accept their judgment. You will call them communists or socialists and hide behind your corporate veil of limited liability to protect your personal assets. Why? Because that would be in your best financial interest, and I think that is all you really care about; the money.
DavidM says: My reason for having a corporation has nothing to do with liability issues at all.
I don’t believe you. All the things you say about a common identity and other incoherent blather can be done as a sole proprietor with a DBA registered at the courthouse. The last time we registered a DBA I think it cost us $20; the last S-Corp I formed cost several hundred dollars. The only advantage you get as a corporation is limited liability. And the privilege of putting “Inc” after your company name in marketing, if you think that helps trick people into trusting you.
Oops typo:
The amount of control & capital at their disposal makes them real risk to our nation & others sovereignty/health/economies.
David, et al,
I realize I’m not the best guy with words.
What’s one of those words which someone is presented/shown the evidence yet they continue to ignore the evidence & pretend it doesn’t exist?
The Koch brothers I believe have been shown time & again to be corrupt yet some people continue to be supportive of those type people because the corrupt give a small part of their ill-gotten gains to charity.
The same case could likely be made for Warren Buffet, George Soros, etc….
If the average person/small biz engage in those type actions I’m thinking of they’d be in prison.
So excuse me if I tend to withdrawn support for those that defend the actions of mental ill sociopaths & the corporations they run.
I know wordpress will not let me post this next phrase so I’ll say it this way.
Many of these global corporations/503 foundations have no loyalty to anyone or nation.
The amount of control & capital at their disposal makes them real risk to our nation & others solvency/health/economies.
I don’t buy into the claim corporations are people & have the same Rights as citizens & how could they?
Many of these corporations have foreign interest to the US. Do we now openly allow foreign entities to give money/aid to polecats?
Why is it shareholders are not allowed to vote on which polecat/political party that the shareholders money is given to?
Why isn’t there even Equal Protection Under The Law?
Why isn’t every citizen also granted Limited Liability, but they are not.
How is it corporations are granted special deals on taxes & Citizen Stakeholders are not? Equal Protection my azz?
On most every level on this Animal Farm corporate animals are far more equal then the Citizen Stakeholders.
Me too. (Lost a post). (as of a minute before this one). Any help appreciated.
Wouldn’t it be easier to turn off this dang WP filter, and delete the posts (with warnings) when people use the forbidden words? I have no idea what is being snagged, I did not use any words I haven’t used before.
Does WP have a flag system where we can flag a post for review or something? Geez.
DavidM: What a load of crap.
As an individual, you can contract with people, associate with people, conduct commerce with people, hire people, and do everything in commerce that a corporation does. We call such businesses “sole proprietorships,” or “partnerships.” You can do it in your own name. I did it myself as a consultant many times, and my contract is what protected me.
The ONLY thing a corporation, or Limited Liability Organization does for you is … Limit your liability.
People work all the time without that net, you would be stripped of nothing, and certainly not your right to work or earn a living through a business of your own making, as your own boss.
Your corporation gives you EXTRA privileges above and beyond your Rights as a human or a citizen. Denying you those EXTRA privileges, that are not enjoyed by individuals, is neither morally or ethically wrong. You retain all your Rights as an individual when conducting business without incorporating or using an LLC or LLP, even if you hire and “associate” with others.
I tried to post a comment that was lost, but it was snagged like the first attempt. I would appreciate some help from a moderator to free one of the posts please.
The following post never showed up, so I’m trying again. I’ve reworded things a bit to try to make it go through.
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Tony C wrote: “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.”
I agree with you here, but you are departing from the statement which I originally addressed. Gene said:
“Corporate personality? Is a legal fiction. It’s part of the charter; a document that wholly and totally derives its power from the state.”
My beef is with this hyperbolic statement that the charter of a corporation WHOLLY AND TOTALLY derives its power from the state. As I mentioned previously, the corporation derives SOME power from the state, but not ALL its power. Limited personal liability is one of the privileges it gets from the state. Other than that, the entire charter is drawn up by people without any assistance or direction from the state. The people forming the corporation determine what powers the corporation has. It is only in communist and socialist nations where you have the state coming in to tell the corporations what powers they have, what products they will produce, how they will produce it, who will work for the company, and so on. In a free capitalist society like ours, the state only has a very minor say in the whole matter, and most of that has to do with the liability issues that you two harp about.
Liability is only one of many reasons for forming a corporation. The original purpose of the liability issue is to allow people to buy into a corporation without worrying about losing their personal assets because of something done by the company. With a corporation needing money to operate, an investor might say, “Sure, I’ll give you a million bucks to help you fulfill your dream of making it big with this idea, but I am only putting at risk this million dollars, not my home and other personal assets.”
My company does not have any investors other than me. My reason for having a corporation has nothing to do with liability issues at all. The corporation is simply a vehicle for organizing people together to produce and market software products. It allows my group of people to be known by a common name that identifies us in a distinct way. It enables me to compete with other groups involved in a similar enterprise. While the law might recognize limited personal liability for things that my group does, that is not the primary reason for me forming a corporation. In fact, I would say it is not really even a reason at all because my personal moral ethic is that I hold myself responsible for everything my company does. I think the owners of Hobby Lobby have the same personal moral ethic, which is why they are fighting the government on this contraception issue. They probably believe that God Almighty will hold them personally liable if their corporation helps murder unborn children.
From a tax liability standpoint, my S Corporation provides no advantages. Every penny my company brings in flows directly onto my personal tax return whether I want it to or not. I am personally responsible for all taxes from my corporation. If my company fails to pay taxes, they will come put me in jail, not my corporation… because corporations are people. This is the basis for holding people accountable for what corporations do. I could operate as a sole proprietorship instead of a corporation and there would not be any significant difference.