Incoming Utah Attorney General Sean Reyes has announced that his office intends to appeal the ruling striking down the criminalization of cohabitation in the Sister Wives case. The decision will ultimately send the case to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado. However, the trial court has not yet issued a final order due to a couple outstanding issues. Once that order is issued, the Attorney General’s office will have 30 days to file a notice of appeal. In a surprising decision, the Attorney General also indicated that he will no longer have his office defend the Utah ban on same-sex marriage (struck down by Judge Robert Shelby) and possibly the cohabitation law (struck down by Judge Clark Waddoups). That will require the hiring of outside counsel and an outside firm to defend these laws as opposed to the Office of the Attorney General itself.
As lead counsel to the Brown family, I am confident that the rights secured in Judge Waddoups decision will be ultimately upheld. While we encouraged the state not to appeal this historic decision, we are prepared for this appeal and eager to present our arguments to the United States Court of Appeals for the Tenth Circuit.
It is particularly disappointing to hear that the incoming Attorney General of Utah, Sean Reyes, would make his first public announcement a challenge to a decision affirming the freedom of religion as well as privacy. His appeal will necessarily argue that the free exercise of religion under the first amendment should be more narrowly construed in favor of the government. He will also have to oppose the principle that consenting adults have a right to live according to their own values so long as they do not harm others.
Let us be clear. This is a discretionary appeal and nothing compels the state or Mr. Reyes to try to reverse the District Court of Utah. Mr. Reyes takes an oath to uphold the Constitution. Fighting to strip citizens of core rights of religious freedom and privacy is hardly a necessary or a redeeming act for any public official. Nevertheless, these are not Utahan rights but American rights. It will be an honor to defend this decision, and the rights of the Brown family, in Denver.
Jonathan Turley
Lead Counsel to the Brown family
December 26, 2013
Kody Brown issued the following statement on behalf of the Brown family:
We are obviously disappointed by news that the incoming Attorney General has decided to appeal the decision to strike down the criminalization of polygamy. We left Utah after being subject to two years of investigation by prosecutors who called us felons because we chose to live as a plural family. We were told by our lead counsel, Professor Jonathan Turley, that we will now go to Colorado to defend this decision protecting our religious and privacy rights. While we regret the decision of the incoming Attorney General to try to strip our family of these rights, we look forward to arguing the case before the federal court of appeals and have absolute confidence in our cause and our counsel. Out of respect to the court, we intend to continue to limit our public discussion of this case. We want to let the legal process run its course and for the focus to be on the important legal issues of this case. Those issues go beyond our family and, with this appeal, will now hopefully benefit families beyond Utah.
I challenge Professor Turley’s inconsistency in arguing this issue on religious freedom grounds. People’s definitions of what is or is NOT religious often differ.
During World War II, many low-information “Christians” saw it as their religious “duty” to kill Jewish people on the grounds (which they believed) that it was the Jews who had killed their Christ.
Sharia law is often interpreted to allow many practices (which many Muslims consider a right or obligation) I have seen condemned on this website.
Religious rights and duties have been debated and led to ferocious wars since ancient times; therefore, arguing religion in courts of law should be avoided whenever possible.
Some people excuse what they do by claiming their religion allows or even requires it; many other people disagree with the “religious” need or right to do those things.
Polygamy should not be argued in court on religious grounds, else where does one draw the line between “allowable” and “illegal” religious practices?
And who decides whether it’s a cult or a religion?
I have said more than once that I do not care how men and women choose to live as long as it is consenting and not exploitative.
Re: Dredd
I actually agree with you about Judicial Review by the courts with final interpretation by the U.S. Supreme Court and “Marbury v. Madison”.
My point is if any court distorts both the letter & spirit of the Bill of Rights/U.S. Constitution to mean: up means down -or- black means white – Americans will lose faith in the judiciary itself as a legitimate government institution. Instead of blatantly distorting the letter & spirit, a constitutional amendment would seem like the proper path to take (if the U.S. Constitution were fundamentally flawed). Alexander Hamilton that defined the role of judges prior to radification essentially said “constitutionality always trumps tradition” when it comes to judges, regardless of legal precedent.
Also the U.S. Supreme Court can make mistakes. At one time the court ruled “separate was equal” on race, then decades later did a 180 degree turn ruling “separate was not equal”.
For example: The Fourth Amendment is one of the clearest worded provisions in the U.S. Constitution and it’s spirit (or intent) was to outlaw “general warrants” by the British Redcoats in the 18th Century. Any rational and intelligent person would say NSA warrantless spying is very clearly unconstitutional using the clear wording and spirit of the law.
Courts can make up anything they want to but the citizens might lose total faith in their integrity and legitimacy.
The rulings thuus far could be certified as “final” for direct appeal purposes under Rule 54 (b).
Surprise…..
OS,
I think I remember that movie!! 3 in the Attic, or something like that!
Well, Professor, better food and much easier to get an adult beverage in Denver. And, then there’s the cannabis and Coors Field!!
Guys, be careful out there: “…He had sex with four of his wives in a row. But once the fifth wife approached to have sex with Onoja, he stopped breathing and eventually died….”
Story here: http://rollingout.com/shame-on-you/african-businessman-dies-after-being-raped-by-his-5-wives/
Ross 1, December 27, 2013 at 8:27 am
Indirectly, isn’t a large part of cases with prosecutorial overreach that: the U.S. Supreme Court has never definitively clarified the “Supremacy Clause” of the United States Constitution [Article VI]? Put another way, if the Supremacy Clause was clarified accurately would any attorney general (state or federal) pursue this case?
Currently, federal officials and some state attorneys general “assume authorities” they really don’t have – based on a flawed “judicial hieracrchy” interpretation – federal law trumps state law, state law trumps local law, etc.
Short of a constitutional amendment, AS WRITTEN: the Supremacy Clause very clearly states the “U.S. Constitution” (not federal authorities) is the “Supreme Law of the Land”. Clause 3 further states that all government officials (federal, state, local) take an oath to the U.S. Constitution as the supreme law.
…
The judicial hierarchy means the U.S. Constitution is supreme, not the federal government over state government or state government over local government.
===========================
There is somewhat of a rub in that:
(Common Sense and Marbury v Madison). There have been admitted-to and obvious misinterpretations of the Constitution by the Federal Courts (e.g. 11th Amendment).
Nevertheless, those misinterpretations become the constitution in the sense that such judicial activism becomes the supreme law when the Supreme Court does the activism.
Attorney General Sean Reyes claims he is “confident in our team” yet that same team must hire outside legal counsel to guide it through the appeals process, the expense of which must be borne by the tax payers of Utah thus necessitating involving the Utah State Legislature as they maintain budget authority. All in the name of criminalizing privacy. (So very NSA-ish)
The worm has turned, dude, and you are planting your office directly in the dragon’s path. Fool.
Society has an obligation to intervene when a smaller society, such as a family group, places an individual at risk or inhibits their basic human rights. If a bunch of women want to live with a man or a bunch of men want to live with a woman, then there is no inhibition of basic human rights. In the case of the situations that turned the tide many years ago, men were forcing women to live with them through religious persuasion and sometimes lining up their daughters for other men. That is unsupportable and should be outlawed. Religion is a weapon along with fists and chains.
However, if these are adult women, freely in all respects, choosing to bunk with this hunk, then why not. The question of civil issues should be left to the voters, whether they profit or not as a family, wife/wives, etc.
The guy must be tired.
Indirectly, isn’t a large part of cases with prosecutorial overreach that: the U.S. Supreme Court has never definitively clarified the “Supremacy Clause” of the United States Constitution [Article VI]? Put another way, if the Supremacy Clause was clarified accurately would any attorney general (state or federal) pursue this case?
Currently, federal officials and some state attorneys general “assume authorities” they really don’t have – based on a flawed “judicial hieracrchy” interpretation – federal law trumps state law, state law trumps local law, etc.
Short of a constitutional amendment, AS WRITTEN: the Supremacy Clause very clearly states the “U.S. Constitution” (not federal authorities) is the “Supreme Law of the Land”. Clause 3 further states that all government officials (federal, state, local) take an oath to the U.S. Constitution as the supreme law.
The reason for this incomplete interpretation in my view is that during the Civil Rights era, the Jim Crow South falsely interpreted the Tenth Amendment (states rights) to violate the constitutional rights of African-Americans and minorities. The Tenth Amendment can’t be used to violate other rights under our Bill of Rights when interpreted in concert with the Ninth Amendment.
The net result was the federal government along with the National Guard of some states (along with the U.S. Supreme Court) interpreted the Supremacy Clause incorrectly. The danger with this interpretation is it removes most checks & balances for a state government to check the federal government (NSA, FBI CoinTelPro, etc) – since the local and state governments defer to the federal government.
The judicial hierarchy means the U.S. Constitution is supreme, not the federal government over state government or state government over local government.
“However, the trial court has not yet issued a final order due to a couple outstanding issues.” – JT
Judge Waddoups mentioned that he did not rule on the 42 U.S.C. § 1983 claim.
If there are any disputed material facts in “Claim Seven: 42 U.S.C. § 1983” that claim (amount of damages, reasonable fees, costs, etc.), and those disputed material facts have to be resolved by the trier of fact rather than the motion court, the final order could be quite a ways down the road.
If there are no disputed material facts a ruling could develop sooner.
Not allowed to live with more than one woman? The ultimate conclusion is arranged marriages before puberty for all. Very sick. No better than the Taliban in the end, except that everyone is treated badly.
Dear Mormons, you`ve been given a rare second chance – don`t blow it
12/26/2013 2:10pm by John Aravosis
http://americablog.com/2013/12/dear-mormons-youve-given-rare-second-chance-dont-blow.html
I love these “traditional marriage” arguments…
… One man and his harem.
The appeal is 100% politically motivated and not surprising given the arrogance and contempt for individual liberty by the prosecutor and the two attorneys general representing the state.
Utah could get a reputation as being one that mandates people live according to whatever whim the legislature and executive branche of the state chooses. And that reputation will not be good. This is not just the plural family (the “bad” people the state tries to demonize in order to further this unjustified attack on them but rather it is an attack on everyone because it could likely be the case the state will not stop at plural families by any other family configuration the state decides to go after next.
The state could have just left the issue alone after the US District Court Judge ruled, but in my experience it is just like any other small minded individuals who refuse to accept that they were wrong and view this in their minds as an insult to their mighty egos.
Next those Utah people will be telling us dogs that we cant marry.
I am so sick of the government trying to legislate marriage, decide who can or can’t marry. This is very sickening!
We are sovereigns, rulers of the government; not the other way around!
I hope the decision, made by Waddoups, does not get overturned!
Good luck Professor!