Friday, February 8, 2013

The Finish Line

Judge Clark Waddoups

Jonathan Turley
Sorry I haven't posted in a long while.  Too much going on.

From friendly observers who attended the Federal District Court hearing in the Kody Brown case last month, I learned that our ol' buddy, Jerryold Jensen, was obliterated by Judge Waddoups.  Turley barely needed to stand up.

Here's what I gather from the various reports:

There were several anti-polygamy harpies there, and they went largely unnoticed.  I think they wanted to stir the emotions of other polygamy haters, but this hearing wasn't about emotions - it was about the violation of the Browns' rights.


Jerrold Jensen
AG Deputy Jensen wanted Waddoups to summarily judge that the case should be thrown out because the Browns don't have standing and haven't been harmed.  Jonathan Turley wants the judge to rule in the Browns' favor because they have been abused by the State.

When the hearing started, Waddoups noted that Turley had alleged that no fewer than SEVEN of the Browns' constitutional liberties have been violated - including -

Freedom of religion
Freedom of speech
Due process
Equal protection
Freedom of association
Free exercise

He asked Jensen to explain which degree of judicial review/scrutiny should be applied by the Court to Turley's constitutional claims against the statute.  Instead of answering intelligently, Jensen said either that the standard of review should be merely "rational basis" (the lowest), or that there need be no review at all because the Browns' claim is merely a "facial" challenge (i.e. that they are simply complaining unjustifiably about the wording of Utah's anti-bigamy statute).

Waddoups mentioned each claim one by one, and, each time, Jensen shouted, "Your honor, I have THOUSANDS OF STORIES of women and children who have been abused by polygamy and compounds." I found it amusing that at the end of the hearing Waddoups asked Jensen why he had not included even ONE of these THOUSAND STORIES in his briefs.  He also reminded Jensen that these 'stories' have NO RELEVANCE to the Browns' case.

But here is where it gets good.  I can only think that Judge Waddoups has been reading Yours Truly, because he proceeded to ask Jensen (in Renn-Oldsbuster-style) what exactly a person must do to fall afoul of Utah's bigamy statute.  I'm paraphrasing, but here's how it was narrated to me:

Waddoups said, "Okay, Mr. Jensen,  . . . . . . 

 . . . . . . let's take the example of an unmarried man who has three girl-friends whom he feeds, clothes and houses, and with whom he makes a permanent commitment and has children.  Does that trigger a prosecution under the statute?"

Jensen said, "No."

" . . . . . . okay, let's take the example of an man who has one legal wife and two girl-friends whom he feeds, clothes and houses, and with whom he makes a permanent commitment and has children.  Does that trigger a prosecution under the statute?"

Jensen said, "No."

" . . . . . . okay, let's take the example of an man who has one legal wife and two other partners whom he calls "wives", and whom he feeds, clothes and houses, and with whom he makes a permanent commitment and has children.  Does that trigger a prosecution under the statute?"

Jensen said, "No."

" . . . . . . okay, let's take the example of an man who has one legal wife and two other partners whom he calls "wives" and with whom he has a spiritual commitment ceremony performed by his Jewish rabbi, and whom he feeds, clothes and houses, and with whom he makes a permanent commitment and has children.  Does that trigger a prosecution under the statute?"

Jensen answered that it was the act of "MARRYING" that constitutes the felony (all this notwithstanding the fact that in Utah it is legally impossible to "MARRY" more than one person !!).

Waddoups retorted that the only thing he could conclude from Jensen's answers was that Utah's application of the statute is a form of religious discrimination.  Despite Jensen's argument that the Browns' claim is purely "facial" ( - i.e. statute is worded in a manner which impermissibly targets Fundamentalist Mormons - ), the judge demonstrated that the claim is an "as-applied" claim - namely that the statute violates constitutional liberties in the way in which it is applied - i.e. that the language of the statute seems fair and of general applicability in the innocuous way it is worded ("don't cohabit" and "don't purport"), but when law enforcement gets its teeth into folks, it is always ONLY EVER Fundamentalist Mormons who get ensnared in the net.  When Lehi's bumbling Kops went on TV to proclaim the Browns felons on the heels of their "televised confessions", the wire was tripped.  The Supreme Court doubtless understands this, and so did Mark Shurtleff.

Think about this, folks, can you remember a single Utahn in the last 100 years who was prosecuted for cohabiting and purporting ('code' for religious plural marriage) who WAS NOT a Fundamentalist Mormon?  This is the very epitome of impermissible targeting of a 'discrete, insular minority'.

From what I learned about the hearing, EVERYBODY in the courtroom cringed with pathos over the drubbing administered to Jensen by the judge.  Jensen was heard to tell the judge on more than one occasion, "Okay, you got me on that one."  Utah's media, though present, was remarkably kind to Jensen, in no case disclosing that Jensen got pummeled and made a virtual fool of himself.

Why am I so hard on Jensen?  After all, wasn't it cruel for the AG's office to send him to the (inevitable) slaughter?  Truth is - it wouldn't have mattered whom they sent.  There was no sane answer to Waddoups' questions.  I secretly wish it had been Laura DuPaix.  Jensen fell on his sword.  I will bet my life that Waddoups is getting ready to rule in the Browns' favor.

We know that, whatever the ruling, the losing side is bound to appeal to the 10th Circuit.  For this reason, I believe that Waddoups is authoring a veritable volume of jurisprudence to support his finding in favor of the Browns.  None of the facts of the case is in dispute.  All that matters is the constitutionality of a statute that was already eviscerated by the Lawrence decision on June 26, 2003.  The 10th Circuit has squirmed its way out of addressing Reynolds on the merits more than once.  I'd like to see it try this time.  Jonathan Turley is no dog-meat.  You know he is ITCHING to get this case in front of SCOTUS.  If the the 10th Circuit concurs with Waddoups, Reynolds is cooked.

I smell the finish line. You can also read Jonathan Turley's general comments here.

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