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
My reply to Gene H about Lenin did not post. Have I been banned already, or is it snagged in WordPress?
Norway is unitary parliamentary constitutional monarchy like the U.K., Andorra, Belgium, Denmark, Luxembourg, the Netherlands, Spain, and Sweden.
It is not a traditional absolute monarchy like Liechtenstein and Monaco.
Ahhhhh, that devil! She is indeed in the details.
You’re still here, nick.
But only because you changed your ways.
You ran afoul of a soft rule. David? Not so much.
Thanks for chiming in. It added so much to the conversation. Is your two cents still worth thirty-seven dollars and change?
Being a bigot of those who express bigoted ideology is no vice.
Especially in an egalitarian society.
“We hold these truths to be self-evident, that all men are created equal”.
Isn’t that the first clause of the phrase you claim to hold so dear while seeking to disparage and trample the rights of others, David?
Mmmmmm. Rank hypocrisy. Delicious.
DavidM, This is their world, it’s all they got. For us normal folks it’s just a blog to discuss ideas. To them, it is a battlefield and they will engage in any means necessary to win the war of their righteous crusade. Their non religion has a religious zeal. And, their free speech mantra is bullshit. They do all they can to silence and ban those who stand up to them. Those of us who have experienced their cabal activities to ban us who disagree just need to remain vigilant. But always remember, no matter how bad you are, you’re still better than me. Something I actually agree w/.
“But always remember, no matter how bad you are, you’re still better than me. Something I actually agree w/.”
Well Nick that is true, but I really thought you thought better of yourself.
No, David, I don’t hate you. I may hate what you stand for, but you? As Mike said, you are far too insignificant to hate personally. Hate takes work. You’re simply not worth the effort. However, your frustration at having your agenda debunked on a consistent basis is starting to show. It must be hard for you, dealing with people who actually understand how propaganda works and can defuse it with ease.
What you said about me was personally identifying information I chose not to share. That’s a clear violation of blog policy. So far, every GB who has responded to the escalation has responded in favor of your banning for doing so as well.
Gene H wrote: “…your frustration at having your agenda debunked on a consistent basis is starting to show.”
My frustration was over how you were mistreating Skip. I am a true egalitarian, not a phony like you who pretends you are for treating everyone with respect. You are for everyone’s rights and equality except for people like me, Skip, and Nick. Maybe if I was a black homosexual, then you would be for my rights, but because I am a white successful businessman, then I am the man to hate. In your own words, bigotry against me is no vice.
Gene H wrote: “What you said about me was personally identifying information I chose not to share.”
This is a lie. I know nothing about you other than what you have chosen to share. I have never met you, neither do I know your friends, nor have I hacked into your computer or downloaded classified information about you. Any information I wrote about you came to me from you because you chose to share it. Nothing you have shared with me has been in private, as you well know. I have never received any private correspondence from you or from anybody else about you. All information I have disclosed about you is public information. For you to pretend otherwise is a lie, and for your comrades who agree with you that I should be banned for it, well, they either are falling for your deception or they embrace a silly rule that makes President Obama’s stance toward Ed Snowden look charitable.
“Any information I wrote about you came to me from you because you chose to share it.”
DavidM,
You are lying again. I’ve read your comment and it was information that Gene has not shared on this blog, but that I am aware of as Gene’s friend.
Tony C:
“Why not? Zero regulation permits coercion. Zero taxes requires you to pay mercenaries to protect you from coercion, and to coerce others into keeping their contracts with you.
How is the government supposed to do that for free? If there is any charge of any kind, tariffs, taxes, fees, what have you, then the market is no longer free. You keep telling me any form of taxation is theft.
Does your free market philosophy require theft?”
At the beginning of our country when we had a limited government dedicated to protecting individual rights things worked out pretty well and brought forth a very high standard of living. None of it with harsh regulations or a tax on income from labor.
By the way, in those countries there is no concern with individual rights.
Bron,
No one is blaming capitalism in general but rather a specific extremist form of it: laissez-faire capitalism. Apparently you missed the part where socialist models that rely on blended economic models like democratic market socialism rely in part on capitalism. Just not the extremist variety that you endorse. The Soviets, like the Nazis, can call themselves whatever they like but they are what they were in action. In action, the USSR was a communist state with a command economy.
DavidM:
“Remember that the name of the nation he founded was the Union of Soviet SOCIALIST Republics (USSR).”
There is that small fact. Socialists dont like any mention of socialism when it looks bad for them. Norway and a couple of other postage stamp size countries with relatively conforming populations and lots of oil money are making it work. So obviously it works if there is free enterprise to back it up and freedom.
Which is sort of what I would like to see here, a free market with limited regulations and low taxes so that we would need only a very small safety net for only those who really need one.
If we could only convince the socialists that the way to help everyone is to give them more freedom not less. But then who would need the socialists?
I think it must suck for socialists to have an ideology which requires people to suffer to be able to stay in power?
And blaming capitalism? WTF is that all about? They always go back to the great migrations from Europe where millions of people landed on our shores and there were few jobs to be had. Never mind that in less than the span of an individual life most people had a job and large cities were created, roads were built and airplanes were carrying mail while houses were lighted and people were using elevators instead of stairs.
H3ll, the invention of the elevator reduced the cost of housing to the poor just as the discovery of oil reduced the cost of light and heat.
Socialism is taking us backwards now. Our money is worth 3-4% of what it was at the end of the 19th century. If the FED keep going it will be Zimbabwe. I am buying gold as a hedge against the madness but then I guess nothing is safe from people who keep putting off the inevitable.
Bron wrote: “Norway and a couple of other postage stamp size countries with relatively conforming populations and lots of oil money are making it work.”
Yeah, but remember too that the Kingdom of Norway also could be used as an example of how a Monarchy works, or how a Theocracy works so well. Surely an atheist like Tony would not embrace that. They pick and choose the elements they like and ignore other possibly contributing factors. Could it be that socialism requires authoritarian rule like Norway has in order to work temporarily?
When I traveled to China, I was struck by the existence of toll booths on the expressways. Toll booths in communist China? A bit unexpected, but clearly free enterprise exists at levels that many overlook in virtually every country. People often claim communism or socialism, but what ends up in existence is a mixture with capitalism. Same in this country. We can herald how we are a capitalist nation, but in practice we have a lot of socialism.
Your Pollyanna understanding of human nature relies on the very bad assumption that left to their own devices all humans will be good actors operating in good faith, Skippy.
That is simply not the case.
Left to our own devices as a species we are self-predatory. Homo homini lupus. Man is the wolf to man. Even the ancients knew this to be true.
Bron says: I dont think you can call those free markets.
Why not? Zero regulation permits coercion. Zero taxes requires you to pay mercenaries to protect you from coercion, and to coerce others into keeping their contracts with you.
How is the government supposed to do that for free? If there is any charge of any kind, tariffs, taxes, fees, what have you, then the market is no longer free. You keep telling me any form of taxation is theft.
Does your free market philosophy require theft?
Skip says: (although it is not showing on the board for some reason): My friend has a PhD in both Chinese Herbal and Alternative Medicine.
How utterly perfect. I would respect medieval studies more.
Skip says: He was talking about fasting that burns fat in the arteries first.
And he is wrong about that. Completely.
Skip says: That’s right I forgot Tony you know everything as do all your resources.
I do not know everything, but I am professionally trained to read science and I probably average two hours a day doing it, from all sorts of sources. It is a perk of my position; effectively unlimited free access to just about anything I find interesting. Plus I spend several hundred dollars a year of my own money on additional sources, and I probably understand much better than you how to access online sources to see abstracts of what research is currently in progress.
I don’t know everything, Skip, I just know a lot more than you do. I am a professional learning machine, and very good at that.
Don’t hold your breath, Bron.
Socialism is not communism and communists view socialism simply as a intermediate step to communism, not an end form in and of itself.
So the purpose was accuracy, David.
Lenin was a communist.
He was not a socialist.
He most certainly was not a democratic market socialist.
Gene H wrote: “Lenin was a communist. He was not a socialist. He most certainly was not a democratic market socialist.”
Lenin was a democratic socialist. He differs from your perspective of democratic market socialism by the fact that he believed that in Russia at the time, a revolution through vanguardism was necessary to produce the desired socialism. Lenin worked to organize workers just like unions here do. Ultimately, however, his goal was the overthrow of the ruling class.
You might consider the following book:
Revolution, Democracy, Socialism
Selected Writings of V.I. Lenin
http://links.org.au/node/2762
“The substance of this volume, however, is its collection of Lenin statements that further confirm Le Blanc’s view of Lenin as a revolutionary socialist committed to democratic principles. Le Blanc has adroitly excerpted passages from Lenin’s voluminous body of writing, organising these selections in a largely chronological but also thematic compilation.”
“Lenin himself became a revolutionary, influenced by the Marxism of Georgi Plekhanov. He studied capitalist development in the Russian countryside, authoring a major book on the subject in 1899. Driven into exile, Lenin distinguished himself at the time of the 1905 Revolution by insisting that a “democratic dictatorship of the proletariat and the peasantry” was the necessary foundation of advancing social democracy in Russia. In the years leading up to World War I, Lenin charted the path of the Bolsheviks within the Russian Social-Democratic Labour Party.”
“More than any other single individual in the history of modern revolutionary movements, then, Lenin had both seen and advocated a path to the possibility of building the prerequisites of socialism.”
“Unfortunately for Lenin, his tree of life would see a foliage of problems in the 1917-1923 years, and through these leaves of difficulty no theory could triumphantly proclaim socialism into being. In the last years of his life, Lenin was pressured aplenty to adapt to what Le Blanc acknowledges was a “tragic authoritarianism”. But he also struggled to keep alive what had been a life-long commitment to revolutionary democracy. Lenin, a tactician who addressed realities, often offered guidance that had a certain timeless ring to it: “Control over a bank, the merging of all banks into one, is not yet socialism”, he wrote, “but it is a step towards socialism.” This kind of elementary socialist vocabulary needs to be resurrected. So, too, does Lenin’s boundless internationalism, his belief in the triumph of world revolution that alone could abolish the regime of capitalist accumulation premised on the exploitation of the many by the few, a social order destined to reproduce an ongoing orgy of oppression.”
“Lenin believed it impossible to reach his goals ‘by any other path than that of political democracy.'”
Gene H wrote: “Lenin was a communist. He was not a socialist. He most certainly was not a democratic market socialist.”
Gene has yet to realized that socialism is just centralized planning and controls, just like communism except that instead of directly owning the means of production and taking the revenue for government from the profits, socialism just taxes the profits as revenues and regulates industry for the centrally planned government. Two different methods to achieve the same goal. The redistribution of wealth.
And he has not yet figured out that those who claim democratic market socialism are lying to him. There can be no such thing. You either have free markets or socialism, they are antithetic, just like slavery and liberty, thus like oil and water they cannot mix; at least not for what is in the best interest of the majority nor for those who end up being the economic slaves for the ruling oligarchy.
Socialism and communism always end up destroying individual initiative and the benefits derived from the creativity and hard work. It’s why ninety-eight percent of the mixed economies around the world are suffering huge amounts of social and economic problems.
People around the world are starting to figure it out and are rebellion against their governments. How successful they are will vary but most of the government will eventually be forced into greater free market capitalism, or they will die under their own conflict and corruption.
Did you happen to see any of the videos on how powerful those water guns in Turkey were, that they were using against their own Citizens to quell dissention and rebellion.
Really Gene H., this is the kind of world you want to live in????
DavidM:
I hope you dont get the boot. And make sure you find the references in the blog threads as your back-up.
Bron wrote: “I hope you dont get the boot. And make sure you find the references in the blog threads as your back-up.”
LOL. You make it sound like they are going to put me on trial or something. What I expect is an authoritarian swing of the left foot of fellowship based upon specious accusations. They don’t want people around who are not subservient to their viewpoints. Whatever I said that Gene took as “personal” doesn’t really matter. It is all an excuse to do what they have wanted to do for a long time. Others have been calling for me to be banned for awhile now, well before this intolerable post. Hatred is the motivation. Anybody with a modicum of intelligence can see that.
“Others have been calling for me to be banned for awhile now, well before this intolerable post. Hatred is the motivation. Anybody with a modicum of intelligence can see that.”
DavidM,
You are lying for sympathy because no one has called for your banning at all in the past.
Tony C:
I dont think you can call those free markets. There is coercion and force being used.
Bron wrote: “I dont think you can call those free markets. There is coercion and force being used.”
I agree with you, Bron. The examples he offered are not even close. The United States of America is probably the closest example of a free market. Also, look at emerging markets where it takes time for the government to catch up. For example, what is happening with the Internet and sellers like Amazon, or look at high tech development with personal computers. Eventually government gets to regulating these as well as they want a bigger piece of the action. But in the beginning, you see what the free market does by increasing competition which pushes prices down. Once government catches up, these markets will be like the oil and gas markets. Shortages will be announced from over-regulation, and prices will rise and people will have to do without.
Yeah, you did, David, so save your self-appointed martyrdom for someone who doesn’t know better. You violated a black letter policy of this blog. The matter has been escalated.
DavidM: Yes, I reject that aphorism. It is complete absolutist bullshit. I do not subscribe to Lenin or anybody, don’t you know that by now? I subscribe to my own logic, based on principles I find self-evident. I know that is alien to you, thinking for yourself, but there you go.
First, I have an autistic child within my family that may never work. Shall I let him starve?
Secondly, unlike you, I do not place my faith in false gods.
I have faith and trust in humanity’s urge and desire to improve their condition by work and effort, regardless of their economic position. Although a few people like my sister might collect their 1500 calories and idle away their time staring at clouds, the vast majority of people WILL work to improve the quality of their food, their shelter, their clothing, their entertainment, and about 55% of them will find ways to work to improve the lives of others.
I don’t need sticks to get people off their duff, providing people with the basics of life will not cause them to stop working. As is shown in all countries with a strong safety net, it will actually encourage them to work and to innovate and find a way to do even better. Because that is human nature, the carrots are built in. They want to take the subway instead of humping a bicycle, they want to own their own car instead of taking the subway, they want a new car instead of the grad school beater. They want the 60″ TV with the surround sound speakers and the heart-stopping bass. They want the house instead of the apartment. They want an iPhone. They want, just once, the $200 a plate dinner at Ramsey’s.
About 98% of us want more than the minimum necessary to sustain life, and we will work for it. I put my faith and trust in that reality.
Mr Kim does a pretty good job at times.
http://www.zerohedge.com/contributed/2013-12-26/why-political-protests-ultimately-always-fail
Lenin was a communist, not a socialist.
Gene H wrote: “Lenin was a communist, not a socialist.”
What purpose does this nitpick serve? Most scholars recognize a relationship between communism and socialism. In Marxism, socialism is established before communism. Communists always fight for socialism, and Lenin was no exception. Read his actual writings or speeches, and you will find that he advocated strongly for socialism. Lenin can easily be called a socialist as well as a communist. Remember that the name of the nation he founded was the Union of Soviet SOCIALIST Republics (USSR).