Today the briefs of the Brown family arrived at the Denver courthouse in the Sister Wives case now before the United States Court of Appeals for the Tenth Circuit. (The actual electronic filing was made the night before under the federal ECF system). I continue to serve as lead counsel to the Brown family in their successful challenge of the criminalization of polygamy in Utah. Last year, United States District Court Judge Clarke Waddoups issued the final decision striking down the cohabitation crime used against polygamist in Utah. The State has appealed to the federal court of appeals in Denver and below is our defense of that decision by Judge Waddoups. I want to thank my friend and local counsel (and GW Alum) Adam Alba and all of the students who have worked so hard on this case over the years. This brief benefited from the assistance of Patrick Fenior and Emily Hoyle as well as assistance from GW grad (and my local counsel in the Al-Timimi case) Thomas Huff and my assistant Seth Tate.
We will let the brief speak for itself, but we are eager to present our case in oral argument before the Tenth Circuit. District Court Judge Waddoups made our task all the easier with a brilliant and powerful opinion (discussed and attached here) in defense of the rights of privacy, religious freedom, and due process. (and here) Defending his opinion before the Tenth Circuit is great privilege as is the representation of the Brown family, which has shown tremendous patience and grace throughout this long litigation. While we remain surprised by Utah’s effort to curtail the religious freedom and due process rights protected under the decision, we remain both confident in our position and committed to this case. It is a great honor to defend these constitutional rights and we are prepared to do so as far and as long as it takes to prevail in the litigation.
We waited to post the brief until after we confirmed receipt today. The final version is linked below.
We do not currently have a date for oral argument but I will post the date when it is available. The government has 14 days to file an optional response with the Court.
Jonathan Turley
Lead Counsel
http://www.sheknows.com/entertainment/articles/1094085/sister-wives-family-cites-gay-marriage-ruling-in-polygamy-case
Eugene Volokh filed a Friend of the Court brief in the Sister Wives case.
“I just filed a friend-of-the-court brief on behalf of the Cato Institute in the Sister Wives case — Brown v. Buhman, now pending in the U.S. Court of Appeals for the 10th Circuit — and I thought I’d pass it along. (Thanks to Sina Safvati, Daniel Simkin, and Sabine Tsuruda, the Scott & Cyan Banister First Amendment Clinic students who worked on the brief.)
A bit of background: Utah has a criminal statute prohibiting polygamy. This statute applies even when all the spouses are adults. It applies even when all the spouses agree to the arrangement. And it applies when no one claims any legal rights or benefits, from the government or anyone else, based on any of the marriages beyond the first one.
The “Sister Wives” family challenged the law (represented by George Washington University law professor Jonathan Turley), and a federal district court in Utah struck the law down on free exercise clause grounds, largely reasoning that the law was motivated by hostility to polygamist Mormons. Our brief on Cato’s behalf doesn’t discuss the free exercise clause, but argues that the law violates the free speech clause.”
David: Yes, I agree that polygamy is widespread in Africa, ever since the Arab slave traders imposed Islam in the sub-Saharan part of the continent. Although what they consider marriage in those tribes is a rather loose definition. The males generally don’t support their families, and they tend to adopt the religious practices that they enjoy (multiple sex partners), but ignore the religious prohibitions that are less fun (bans on smoking and drinking, etc.) Obama’s father (a Kenyan Muslim) had multiple wives, but they seemed to be rather casual relationships. He was also an alcoholic who died in a single car accident while driving drunk, despite the Muslim prohibition against drinking. But as far as my post, I was thinking of polygamists in the U.S. as well as gay males who use the court system to demand societal acceptance of their lifestyles.
Karen S: You ask if the “sister wives” can take an additional husband or partner. No, of course not. Polygamy is all about white male control. The patriarchs divide up the women and girls among themselves, and run the young males out of the cult to prevent competition or possible sexual liaisons with their “wives”, many of whom are young teen girls given to the old men as ‘wives” by their fathers in exchange for money or other benefits. There is an organization in Utah called Tapestry, sort of like the Underground Railroad, which helps women and girls escape from polygamy. The ultimate polygamist was David Koresh, who had a “vision” that he should be allowed multiple wives and the other men in the cult only got one wife. At some point later he had a second “vision” where God told him that he should have ALL the women and girls as his “wives”, and amazingly enough, all the men in the cult accepted this, and handed over their wives and daughters to Koresh. I think it would make for a much more interesting case if it were a woman with multiple “husbands” who took her case to court. Or a minority male with multiple white “wives”, or a lesbian with multiple “wives.” But it’s always the white guys, whether gays or polygamists or Man-Boy Love Society types, who demand that society accept their perversions.
I wonder what ever happened to all those poor brainwashed child brides at the Jeff’s House of Horrors YFZ.
My own personal definition of a cult is when the leader starts claiming the women, power, and money of the practitioners. That’s when it starts to get extremist.
There’s the tithe, or donations, but when a leader asks you to turn over everything you own, gets complete power over you, and claims that he’s allowed to have as many women as he wants, and if they say no they’re going to hell, then run for the hills.
Warren Jeffs was one of those extremist cult leaders.
I watched a few episodes of Sister Wives, including when he decided to marry Robin. I remember the women had a range of emotions in coming to this decision, and there was this sense that there was pressure to accept the husband sleeping with another woman because it was God’s will. Merry, herself, was the one who had the testimony that it was God’s will that her husband marry another woman.
As time went on, the women felt that Kody was paying more attention to the new, younger, skinnier wife.
Go figure . . .
I actually really liked those women. They were all people who seemed like they would be nice friends. I wanted to yell, “Snap out of it!!!”
Karen S: the State of Oregon will order you to bake five cakes for a polygamous wedding.
Why is it that these creepy white men always have to justify their immorality through religion? Polygamist Warren Jeffs, cultist polygamist and pedophile David Koresh, Jim Jones, etc., etc. We don’t see promiscuous black or Hispanic men saying their religion made them do it…it’s only the white pervs who somehow feel the need to cloak their sexual immorality under the guise of religion…which nobody believes, anyway. If you want to live with multiple girlfriends and your pathetic wife will put up with it, just be honest about it. It’s not like anybody believes that these men who cite a 6,000 year old bible story to justify polygamy are also sacrificing sheep as “burnt offerings” and holding slaves and engaging in any other Old Testament practice besides multiple sex partners.
TinEar wrote: “Why is it that these creepy white men always have to justify their immorality through religion?”
I think that is your perception from the media. Most polygamists I have known were black men. And they justified it by religion. Islam is a polygamist system. My sense is that if you polled polygamists worldwide and showed the data by race, most polygamists would be black.
A difficulty I have heard from many missionaries in Africa concerns being able to convince their converts that monogamy is a better way. It made no sense to their converts, and what do you do anyway when they are already married to more than one woman? Missionaries fought over these questions, some claiming that some of the extra wives had to be divorce while others claimed that would be immoral and that it was the next generation that should embrace monogamy. In any case, in these dynamics, we are talking about white monogamous men and black polygamists.
More on “pligs” (Polygamous children) from fundamentalist sects:
http://www.latimes.com/local/great-reads/la-na-utah-lost-boys-20130508-dto-htmlstory.html
The nice Brown family are only one facet of polygamous society. There is a seedy side to it.
Here is my question. I support gay marriage, but oppose polygamy. I’ve seen people lose their jobs and get death threats for opposing gay marriage. Is that in store for me for opposing polygamy?
Brent Jeffs, author of “Lost Boy”
http://www.npr.org/templates/story/story.php?storyId=104359348
Here’s more on the Lost Boys:
http://www.childbrides.org/boys.html
This phenomenon is the mathematically predictable result when a small fraction of one group gathers up most of the members of another group. There are going to be a lot of people left out.
The laws against bigomy/polygamy do protect women who are unsuspecting victims of con artists.
We have always held that religious freedom has some limits; the debate has always been how to draw the line. That is contentious.
For example, human sacrifice is against the law, as is female genital mutilation.
I have no problem with people co-habitating, calling each other sister wives, getting along with their husband’s mistresses, or anything else that goes on behind closed doors.
Not my business.
I do, however, oppose legalizing polygamy, in which case spousal benefits are awarded. If it costs taxpayer money, then it becomes my business. Then we would have to award Social Security, Medicaid, and all sorts of other benefits to an unlimited number of spouses, with the obvious incentive for fraud. Someone could claim to be married to 1,000 women, sharing government benefits.
I think the Brown family are very nice, from the few episodes I’ve seen on TV. I still want to shake some sense into the women who feel it’s just dandy to be satisfied with a fraction of a husband, who gets lots of sexual variety while they have to be content with 1/4 of a husband’s time and affection. I think the appeal for the men are that they get to head this community. They feel important. They get multiple sexual partners while they enjoy the loyalty and fidelity of their wives. He’s now up to 4 wives. What’s going to stop him from getting a fifth? sixth? seventh? And the new wives always seem to be younger, don’t they? At some point, these women have to realize that this boils down to their husband is attracted to a younger woman, and wants access to her bed.
If the man would not accept their wives sleeping with someone else right down the hall, why should women?
Mathematically, this does not make sense on a community scale. A few families can get away with it. But the typical male:female ratio is 1:1. If a few males gather up a disproportionate number of females, that leaves less mates for the remaining males. This might make sense thousands of years ago, when constant warfare killed off most of the males leaving the females helpless in a world where they could not support themselves.
But realistically, insular communities where this is practiced drive younger males out. That’s what produced the Lost Boys of Yearning for Zion. This will likely be a problem for the boys in the Brown family only if they want to continue in polygamy. If they just want to have a monogamous marriage, there are plenty of girls for them to meet in NV. But if they want to follow in their father’s footsteps and be polygamous, how many young women are single among their polygamous community, if a few males are marrying them all?
This is just basic math.
As several commenters have pointed out, this is a social issue that can be a real problem. But those commenters don’t seem to grasp the point that using the law to confront social issues is a bad idea. It was a bad idea for alcohol prohibition, it’s bad for the war on drugs, it’s bad for gay rights, it’s bad for racial rights, etc. The law is a blunt instrument, a club. If your solution to a social issue involves throwing people in jail, you’re doing it wrong.
From the Whitebread speech, http://www.druglibrary.org/schaffer/History/whiteb1.htm
“In 1910, the Mormon Church in synod in Salt Lake City decreed polygamy to be a religious mistake and it was banned as a matter of the Mormon religion.” No problem so far. Then:
“…this is how things were in Utah in those days — in October of 1915, the state legislature met and enacted every religious prohibition as a criminal law and we had the first criminal law in this country’s history against the use of marijuana. ” The road to hell is paved with good intentions, usually justified by someone’s religion.
Anon wrote: “But those commenters don’t seem to grasp the point that using the law to confront social issues is a bad idea. It was a bad idea for alcohol prohibition, it’s bad for the war on drugs, it’s bad for gay rights, it’s bad for racial rights, etc. The law is a blunt instrument, a club. If your solution to a social issue involves throwing people in jail, you’re doing it wrong.”
I agree with your premise here, that how the law deals with many of these issues is important. For example, it makes no sense to put someone away in prison for years because he grew a marijuana plant on his window sill. Punishment should fit the crime. Basically there are right ways and wrong ways for how the law defines crimes that need to be punished. In regards to the misnomer gay rights, public policy should define human relationships properly. That does not mean that the institution of marriage had to be destroyed by the federal government in order to protect these other types of relationships. Public law and policy still has it wrong on racial relationships as well. Our society will continue to experience a lack of peace until these bad laws are corrected.
Davidm2575:
Let’s assume you are correct, if there is hard evidence of that harm and credible experts citing hard evidence of harm, the court will factor that into the ruling.
In women’s voting rights, interracial marriage and gay marriage cases, critics warned of harm to society but there was no evidence of harm when all the evidence was looked at by credible experts.
It will come out in the wash. If there is legitimate harm the court will weigh both the good and bad evidence within the boundaries of the U.S. Constitution.
Frankly I, and I suspect most married men, cannot understand any man who would want such an arrangement. But why is it the business of government or anyone else? Live and let live.
JR wrote: “… why is it the business of government or anyone else? Live and let live.”
The reason why it is the business of government: Sexual relations create social bonds and children, which create new relationships (father, son, mother, daughter, husband, wife…). These new relationships create new duties and obligations. That is nature and no laws are going to change this. What laws should do is articulate the duties and obligations that exist. Just as the law of gravity articulates how we can build spaceships to travel to the moon, so civil laws articulate how to navigate these new relationships. What happens when the duties and obligations are violated? The aggrieved party takes the other to court for justice. This is what makes it a public interest. This is what makes marriage the business of government. Dead beat dads, for example, need to be held accountable for the wife and children that they forsake.
Ross,
Exactly.
Conservatives say they support “individual freedom” and don’t like intrusive government – how does this affect your own marriage? The government isn’t forcing anyone into gay marriage or plural marriage. It’s really none of our business how other people live their lives as long as they aren’t violating the rights of others.
Court cases at this level aren’t bumper-sticker debates. Every angle and every concern is included with deep debate based on hard evidence from legitimate experts. If there is evidence of any harm to anyone, especially children, that hard evidence is factored into the ruling.
For a really conservative view, the Old Testament allowed all sorts of things including plural marriages.
When the U.S. Government got involved in “social engineering” is what caused many of these issues in the first place. Federal and state governments started financially rewarding or penalizing Americans based on marital status and number of children. Once a government body starts rewarding one citizen using the tax code and other government rewards – any other citizen is entitled to challenge that unequal government entitlement in court. For example: single Americans and until recently gay Americans subsidized the public education costs of married heterosexual couples. If we were to end the social engineering program altogether – for the sole purpose of discrimination – taxes for a married hetereosexual couple with 2 children could increase $10,000 to $20,000 per year if that hetereosexual couple with kids had to pay their own way (without subsidies from other taxpayers).
Ross wrote: “It’s really none of our business how other people live their lives as long as they aren’t violating the rights of others.”
That’s not really true. Take an alcoholic or a drug addict for example. While technically he is hurting himself and not others, in the long term he does hurt society by not being able to be reliable and trustworthy. The destruction of virtues within an individual ultimately hurts all of society. The problem in society today is that as a culture we have lost our wisdom to see down the road and how an individual’s selfish actions hurts society in the future.
Ross wrote: “Once a government body starts rewarding one citizen using the tax code and other government rewards – any other citizen is entitled to challenge that unequal government entitlement in court.”
There often are rational reasons for government to be supportive of behavior that betters the public good. For example, publishing science articles that improve the general public’s knowledge and understanding should not be subject to taxation because doing so would be like government taxing itself. The same holds true for religious articles that address societal problems or issues that would improve civil society. However, actually spending tax dollars collected for education or other issues is going too far because all it does is waste money by adding bureaucracy. Give tax breaks for activities that further the public good, but keep government small by no funding such endeavors. Likewise, government could give tax breaks for health care issues, but government should not be funding health care.
“Who gets to decide whose religion is more legitimate than someone else’s?”
The IRS.
So, religious freedom should only be bestowed upon religions that get someone’s stamp of approval? Who gets to decide whose religion is more legitimate than someone else’s? If the participants in polygamous relationships are consenting adults of non related people, why is it the business of the State? Religious “freedom” may have some unintended consequences.
It is interesting how the privacy principle seems to trump every other principle. With the egregious Supreme Court decision in Obergefell v. Hodges, I can’t understand any rationale that would validly block polygamy from the definition of marriage. The truth is that there is no longer any institution of marriage. Marriage for government has become a simple contract between consenting adults, so what rationale can be used to limit the contract to only two individuals? Pandora’s box has been opened.
Doglover: About 20 years ago I was traveling through Salt Lake City and checked into a hotel for the night. The local newspaper had an investigative report on that very issue. The vast majority of these plural households are supported by the taxpayers. For the smaller households, where the man has the means to support, say two wives and six kids, it is just a means of defrauding the state. The husband/father is legally responsible for supporting his first wife (the legal one) and her children, but his other wife would have no means of support and claim she didn’t know who the father of her children was, so they would receive welfare. But most of these households, according to the article, quickly grew well beyond the means of the father to support, so they would be entitled to welfare even if the plural marriages were recognized by the state. Many of these families lived in compounds with 10 men, 80 or so “wives” and literally hundreds of children, of which about 75% are supported by taxpayers. The article also discussed the health care costs of caring for the genetically damaged children of some of these families which had become completely inbred. There was a trial going on in SLC at the same time, where a 50 something year old father gave his 14 year old daughter to his brother for an additional “wife.” The girl escaped, with the aid of a group that rescues women and girls from these polygamous cults, and both the father and uncle were being prosecuted. I don’t know whether the jury convicted them…..Seeing the realities of these polygamous sects is sickening. It’s a lot different in real life than some cute t.v. show. I wish the court would order JT to spend a year working with the victims; the frightened teen girls who run away in the night after being raped by their 50 year old uncles/husbands, the homeless teen boys living on the streets of SLC after being driven out of the compound so that the old men can have the teen girls for themselves; the genetically damaged infants and children born of these relationships…As an interesting aside, the father who gave his teen daughter to his brother was an attorney, licensed in both CA and Utah. The State Bar of CA had disbarment proceedings pending against him. Apparently the left-leaning CA Bar, headquartered in San Francisco, isn’t as liberal as JT when it comes to the “religious freedom” of these lovely polygamous cults.