Friday, December 13, 2013

Here's The Thing: -

Here's the thing - -

The State of Utah has no attorney general right now.  The last two, Bishop Swallow and Shark Murtleff, are both being investigated by the feds for fraud and corruption. The latter made it his mission to exploit polygamists for political gain.  The former says he comes from polygamy and has nothing but warm feelings for its practitioners.  Either way, technically, their future successor is duty-bound to defend Utah's laws and appeal today's (12/13/13) ruling from the District Court striking down the cohabitation prong of Utah's idiotic bigamy statute.

But here's the thing - judge Waddoups' decision is so well reasoned and so constitutionally sound, that any appeal will be an uphill battle.  Since virtually none of the facts is in dispute, the only controversy is whether or not the language and execution of the bigamy statute are legally sound.

Waddoups voids the "cohabitation" prong as operationally unsound because by the nature of its enforcement it singles out a religious minority for disfavorable treatment (AND because it ignores the freedoms reiterated by the 2003 Lawrence decision).

More importantly, however, Waddoups takes his scalpel to the heart of Utah's polygamy foes by attacking the centerpiece of their arguments - compelling government interest.  Utah's bigamy statute defenders argue that the higher courts must not apply any heightened or strict scrutiny to the bigamy statute because it was framed under a clearly "rational" basis - namely the compelling state interest of protecting the institution of monogamous matrimony in Utah.  Aside from the fact that that argument is silly (does the fact that gay people walk Utah's streets injure the Judeo-Christian institution of holy matrimony?), Waddoups reminds us that since more than ONE of the Browns' constitutional liberties have been hurt, the review standard is driven by the "hybrid rights" doctrine developed in Employment Division v. Smith. Simply put, when both your 14th Amendment (due process) and 1st Amendment (free exercise) rights have been harmed, the level of scrutiny required of the appellate courts is now HEIGHTENED scrutiny.  Turley and Waddoups articulated no fewer than six constitutional harms inflicted upon the Browns by the statute and its enforcers. This means that the state can no longer cower behind the pathetic rational-basis argument about protecting traditional marriage at the expense of the Browns' freedoms.

Thus the court(s) has a duty to take a good hard look at the spirit and effect of the statute and to see if it survives constitutional analysis.  Kody Brown has four ladies.  He sleeps with all of them.  Many Utahns can be said to have done the same thing, just not calling their partners "wives".  Prosecuting Brown for using the wrong word violates his free speech liberties - not to mention his freedom of association and right to equal protection under the law.

Here's the thing - - I invite Utah's next AG to take a swing at the decision in the 10th Circuit.  Waddoups has covered every base in his 91 pages.  Any appeal has to draw on a strong legal argument refuting Waddoups and demonstrating the critical merits of criminalizing religious polygamists.  I submit that it cannot be done.  No self-respecting 10th Circuit jurist would dare disagree with one paragraph of Waddoups' ruling.

Think of it this way - - millions of Americans are deeply resentful of gay marriage.  Their religious sensitivities are mortified at its proliferation.  However, when you get right down to it, the anti-gay-marriage arguments are all groundless and emotional.  My favorite one is the one asserting that children do best when raised in a two (-gender) -parent home.  That makes a lot of sense.  The problem is that you cannot compel that.  If two lesbians are already raising a kid, it is unlikely that that kid's upbringing will deteriorate simply because the two mothers get a legal marriage certificate.  The argument falls apart.

Same thing with plural marriage.  Utah has had tens of thousands of polygs for 150 years.  Traditional monogamous matrimony cannot be demonstrated to have suffered as a result.  There is no rational way to argue that it has.  Perhaps monogamous marriage has suffered FAR MORE as a result of people getting divorced.  Yet the government makes no attempt to outlaw divorce.

So, I say to Gary Herbert and his prospective AG nominee, "Have at it!  Send Jerrold Jensen or Laura DuPaix to Denver to argue that polygamists hurt Utah by existing, and that they all need to go to prison.  See how far you get with that!"  The principal reason (and Waddoups observed this) why these arguments fall flat is because they are tendered in bad faith.  These AG lackeys have NO DESIRE to prosecute polygamists, they just want to wag the moralistic finger of LDS piousness to menace an unpopular minority.  Waddoups saw through it.

All the more delicious is the fact that Waddoups is a home-grown BYU graduate who finally saw through the hypocrisy and bigotry, and dared to buck the trend.  I almost wonder if he isn't going to get pulled in by his Stake President and threatened with disfellowshipment for making the LDS Church look (even more) like a fool.

See you in Denver, Laura.
--------------------------------

Labels

10th Circuit 13th Amendment 14th Amendment 1953 Short Creek Raid 1st Amendment 6th Circuit Abortion Abraham Addam Swapp Admiralty adultery Affordable Care AG - Craig Jones AG - Mark Shurtleff Ahmedinejad Al Sharpton Alan Dershowitz Albert Nock Alex Jones Alina Darger Allen Keate Allen Steed Amnesty Anders Breivik Andrew Napolitano Angela Corey Anteater Anthony Weiner Anti-bigamy Apocalypse Arm of flesh Arnold Schwarzenegger Ashton Kutcher Assad atheism B.C. Supreme Court bailout bailouts Barack Hussein Soetoro Obama Barack Obama Barbie BarefootsWorld.net Belief vs. Practice Ben Bernanke Benghazi Bernie Machen Bestiality Betty Jessop Big Love bigamy Bill CLinton Bill Medvecky Blacks and the Priesthood blood Blood Atonement Bolshevik Revolution Book burning Bountiful Boyd K. Packer Branch Davidians Breitbart Brigham Young Brown v. Herbert Bruce R. McConkie Bruce Wisan Canada Canada Reference Carolyn Jessop Casey Anthony Caylee Anthony Chapter 13 bankruptcy Charles Darwin Charlie Hebdo Charlie Sheen Chick-Fil-A Chief Justice Robert Bauman Child-bigamy Chris Serino Christine Durham Church of Jesus Christ of Latter-Day Saints Church Police Civil War CNN cohabitation collaboration Colonia Lebaron Colorado City Communism Conrad Murray Conservative Constitution Country Music CPS Craig Barlow Craig Jones Creston Crimea crooked judge cultural genocide Czar Nicholas D+C 101 Dallin H. Oaks Dan Cathy Darwin Darwin's Black Box Darwin's Doubt Darwinian Darwinism Darwinists David Boies David Koresh David Leavitt Davis v. Beason DCFS Debra Weyermann decertification Decriminalization Democrat Denise Lindberg Depends Deuteronomy 28 Diaper Disodium Guanylate Disodium Inosinate DNA Doctrine & Covenants DOMA Don't Ask Don't Tell Donald Trump Dr. Drew Pinsky Dr. Seuss Dream Mine Dred Scott Drew Pinsky Drones Edom Edomites Egypt El Baradei Elaine Tyler Eldorado Elijah Abel Elissa Wall Enabling Act Entitlement Ephraim eradication Eric Holder Ernst Zundel escape European Union Eurpoean Bailout Eustace Mullins Evolution Ex Parte extradition Ezra Taft Benson FBI Federal Reserve Felony FEMA camp Feminazi First Amendment Flagellum flatulence FLDS Flora Jessop Florida Flying Circus Food waste fornication Fourteenth Amendment Free-Agency Fundamentalist Mormon Fundamentalist Mormons Gadianton Robbers Gary Herbert Gathering Gay Gay Marriage General Conference genocide George Clooney George W. Bush George Washington George Zimmerman Germany Gerunds Glue-sniffing Gordon B. Hinckley Grant Morrison Greece Greg Abbott GritsForBreakfast Gun-Control guts H1N1 Handbook of Instructions Harry Reid Harvey Hilderbran hatred HB-99 HBO Health Care Reform Heber C. Kimball Hildale Hillary Clinton Hippies Hitler Hoax Holding Out Help Holding Out Hostages Holly Madison Holocaust Homeland Security Homeschooling homosexuality Hoole Hosni Mubarak House of Cards Hubris Hugh Hefner Human Nature Hypocrisy hypocrite Idumea illegal aliens Illegal Ceremony IMF Immigration IN TIME incest Intelligent Design International Monetary Fund Iowa Supreme Court Iran Irony Irrevocable Clause Isaac Jeffs Jacob Zuma Jaimee Grubb James Dobson James Rosen Jamie Dimon Jan Brewer Jane Blackmore Janet Yellen Jeff Ashton Jeff Buhman Jeffs Jerrold Jensen Jerry Sandusky Jesse Barlow Jesus Christ Jew Jim Jones Jimmy Oler Joe Darger Joe Paterno John Boehner John Daniel Kingston John F. Kennedy John H. Koyle John Hyrcanus John Kerry John Singer John Swallow John Taylor Jon Krakauer Jonathan Turley Jonestown Massacre Joni Holm Jose Baez Joseph Compton Joseph Henrich Joseph Smith Joy Behar JP Morgan Chase Jubilee Judea Judge Barbara Walther Judge Bauman Judge Clark Waddoups Judge Dee Benson Judge Donald Eyre Judge James Brady Judge Robert Shelby Judge Terry Christiansen Judge Waddoups Julian Assange June 26th Jury Justice Christine Durham Justice Nehring Justice Robert Bauman Justin Timberlake K Dee Ignatin Kathy Jo Nicholson KD Ignatin keep sweet Keith Dutson Ken Driggs Kendra Keystone Kops kidnapping Kiev Kimberly Conrad Kingston Kirk Torgensen knife Kody Brown Lab rats Lance Armstrong Larry Beall Las Vegas Laura DuPaix Laurie Allen Lavar Christensen Lawrence decision Lawrence v. Texas LDS LDS Church Lehi Police Liberal Liberals library Lifeboat Lindberg Lost Boys Love Times Three Lukumi Lyle Jeffs Main Street Plaza Mancy Nereska Marilyn Monroe Mark E. Petersen Mark Shurtleff marriage license Marxist Mary Batchelor Merrianne Jessop Merril Jessop Michael Behe Michael Dorn Michael Jackson Michael Zimmerman middle-class Migraine Relief Mike de Jong Mike Noel military miscegenation missionaries Mitt Romney Modern Pharisee Monkeys monogamy Monosodium Glutamate Monty Python Mormon Mormon Church Mormon Matters MSG Mubarak murder Muslim polygamy Musser Nancy Pelosi Naomi Jeffs Natalie Malonis National Debt National Enquirer Natra-Bio natural selection Nazi Next Generation Ninth Circuit Nobel Peace Prize Norway NSA Obacle Obama Obamacare Obaminacare obesity Occupy Wall Street Oligarchy Open Marriage Orrin Hatch Osama Bin Laden Pakistan Palestine Papandreou Paris France Parker Douglas patriarchy Paul Murphy Paul Ryan pharaoh Planets Planned Parenthood Playboy mansion plural marriage polyamory polygamist polygamous polygamous grouping polygamous sect polygamy polygamy reference Polygamy Task Force Predictor Presbyterian Presidential Election promotional video Promulgate Prophecy Proposition 8 Prostitute Protection of Marriage Punk'd Quantitative Easing race card Rand Paul rape Raymond Jessop Reassignment Recession Reconciliation Relief Mine Religion religious test Rep. John Lewis Rep. Mike Noel Resurrection Revelation 18:3 Reynolds decision Richard Dawkins Richard Nixon Rick Santorum Rights riots Robert Mueller Rocky Ridge Rodney Holm Rodney King Roe v. Wade Ron Paul Rothschild Rozita Swinton Ruby Ridge Rulon Allred Russia Safety Net Salmonella Samaria San Angelo Sargon Sarin Saudi Arabia Schleicher County Sean Reyes Seattle Second Amendment Senator Kevin Van Tassell Shalmaneser Shannon Price Shoshana Grossbard Shutdown Siamese Signature in the Cell Silsby Silvio Berlusconi Sir Evelyn de Rothschild Sister Wives skin color Slippery Slope Socialism Sonny Hostin Soviet Union Spencer W. Kimball Star Trek Stars Stephanie Colgrove Stephen C. Meyer Steven Conn stimulus Stromberg-Stein Survival Suspect Class Swine Flu Syria Tapestry Teen pregnancy Temple Teresa Jeffs termites Texas Texas CPS Texas FLDS Texas Rangers The Fall of Reynolds Theodore Olson Thirteenth Amendment Thomas S. Monson Thurgood Marshall Tiger Woods Timothy Geithner Timothy McVeigh Titanic Tito Valdez TLC Todd Shackelford Tom Green Tonia Tewell Trace Gallagher tracting Trayvon Martin trickle-down economics Trip-Wire Trust TSA twins TxBluesman Tyranny U.S. Bankruptcy. Franklin D. Roosevelt U.S. Supreme Court UEP UEP Trust Ukraine Uncommon Dissent Uniform Commercial Code Universe University of Oslo usury Utah Utah A.G. Utah Amendment 3 Utah Attorney General's Safety Net Utah bigamy statute Utah Legislature Utah Supreme Court Vera Black Vermont Vladimir Putin Waco Wally Bugden Wally Oppal Warburg Warren Jeffs weapon words Wendell Nielsen Whistleblowers Wilford Woodruff William Dembski William E. Jessop Willie Jessop Winston Blackmore Wisan Woodrow Wilson Worf WTC 7 Xenarthra Yams YFZ YFZ Raid YFZ Ranch Zombies