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.
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When Kody Comes Home

Today it was reported by the Associated Press that Jeff Buhman, the Utah County prosecutor has FINALLY made up his mind what to do about the Browns' bigamy case.  He has completed his "investigation".  He has decided that, though guilty of bigamy, the Browns will not be charged, and that his policy (like that of the Attorney General) will be to prosecute bigamy only when there is a "victim" or fraud.

So what now? Do we all sigh a big sigh of relief?

Buhman is asking that Kody Brown's civil rights lawsuit against him be dropped because, now that the county's policy is to not prosecute polygamists, the case is "moot".  This is ridiculous.  It's much like saying, "I'm not hitting you any more, so you shouldn't complain about my hitting you."  One element of 'standing' in a Constitutional challenge is that the parties need to have been harmed or threatened with harm.  Clearly the Browns felt sufficiently threatened that they relocated to Sin City.  The judge (Waddoups) agrees.

The other silliness in this situation is that, however sincere Buhman is in his determination not to prosecute Kody and the four wives, the stupid bigamy statute is still firmly in place and still threatens most Utah families.

OKAY !!! - you and I both know that these idiots are smart enough to absolutely never use this lame statute on consenting adult polygamists, because that would do exactly what Jonathan Turley is doing right now - it would create a watertight test case to challenge the statute on the basis of Lawrence v. Texas (June 2003). The Church dreads this. When the Lawrence decision thoroughly decriminalized gay sex ("sodomy"), Utah did not instantly repeal its sodomy statutes, yet they are VOID nonetheless.  Well, the language of  Lawrence did not confine itself solely to homosexuality - it in fact decriminalized ALL consensual adult intimacies.  This (as Snortleff so eloquently argued in his Amicus brief in Lawrence) reaches all such conduct and inevitably VOIDS Utah's anti-polygamy codes.

Truth is, in spite of Lawrence, Sharkleff and Buhman have for a very long time preferred to "menace" the Browns and their fellow polygamists with the specter of prosecution.  If you are always flinching and cringing under the threat of incarceration, maybe you'll cloister yourself away somewhere in a dark, isolated corner of the state and keep your mouth relatively shut. As a stigmatized, marginalized minority, you can be more easily trampled on, and all the supercilious, pious Church-folk can go to bed at night peacefully knowing that those filthy polygs are second-class citizens - outlaws - lepers - nothing like our brave polygamous pioneer ancestors.

So here's the problem - if the Browns take Buhman at face value, they could perhaps venture back across the state line and resume residence in Lehi, reassured that arrests are now not imminent.  How does this protect them however from the prosecutors in the other counties they might visit?  Two other county prosecutors have charged polygamists in recent years. You get my point.

Let's cut through the fluff.  If no self-respecting prosecutor (besides Sean Reyes) will seriously pursue consenting adult polygamists, why is it SO DOGGONED important to keep that dumb, utterly-unenforceable bigamy statute in force?

Because the Church DREADS this one simple question:

Elder Soandso, now that polygamy is no longer a crime in the United States, will the Church resume its once suspended solemnization of plural marriages and stop excommunicating members who embrace it?

What Do You Think?

Today, Megyn Kelly (FOX News) discussed Jonathan Turley's case against Utah County's prosecutor, Jeff Buhman, for threatening to enforce Utah's silly bigamy statute against the Kody Brown family.  This case appears to have garnered some attention.  Maybe people are starting to understand that Reynolds must fall.  Sadly, the guests once again entirely confused the effort to decriminalize private (plural) intimacies with the concept of legalizing polygamous state marriages (which the Browns are not seeking).

Even more encouraging is the language used by Judge Waddoups in his recent memorandum.  His incisive, even tongue-in-cheek commentary discloses what will happen when the merits of the case are argued soon.  Waddoups clearly believes that the Browns' rights are being violated by the hollow saber-rattling of Utah's law-enforcement/ecclesiastical/political machinery.  I spoke to a Phoenix reporter yesterday who marveled at the determination of Utah's AG to preserve a law which he is adamant about not enforcing.  One is reminded of the naked emperor once again. 

Today, the media also reported that the Ninth Circuit court of appeals just ruled (2-1) on the challenge to California's Prop. 8 (ban on gay marriage).  The court struck down the ban based on its violation of the Fourteenth Amendment.  We all knew this was coming.  Naturally, Prop. 8 supporters will be anxious to test this decision, either by the entire panel of the Ninth Circuit, or by the U.S. Supreme Court.  Such an effort would be doomed.  Too many states already permit gay marriages (for the same 14th Amendment rationales) and too few of the Ninth Circuit justices are social conservatives to ever reverse the decision.

The irony is that while gays have clearly won the right to marry, we have not yet won the right to exist.

What do you think?
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I like this comment from Turley's blog - 

The Horns of a Dilemma

The following is excerpted from an article by Emiley Morgan (of Utah's Deseret News).  Writing about Federal Judge Waddoups' ruling yesterday, she reports:

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'He [the judge] wrote that [Utah County prosecutor] Buhman conducted interviews with the Deseret News, The Salt Lake Tribune and People magazine where he made it clear that he intended to investigate and prosecute the Browns. "The fact that no charges have, in fact, been filed, does not matter," Waddoups wrote.

"The entirety of actions by the Utah County prosecutors tend to show either an ill-conceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law," the judge wrote. "Without any evidence to the contrary, the court assumes that these are consummate professionals making announcements of criminal investigations to apprise the public that they are doing their duty and seeking to enforce the law."'

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In the case before the Federal District Court, Utah's Attorney General argued that the Brown family could not claim standing (to wit - they have had not been harmed or threatened with harm) sufficient to warrant the case being heard.  Judge Waddoups disagreed.  This is historic, folks.  Now the federal courts MUST consider whether Utah's bigamy statute (and the Reynolds decision on which it relies) should be struck down as being unconstitutional.

Snarklips must be stewing still over the Utah County prosecutor's (Jeff Buhman's) blunder.  I love this!!!  Buhman said he was (and still is) investigating the Browns for felony bigamy.  What is there to investigate?  The law makes anyone with more than one bed-partner a bigamist and a felon.  The Sister Wives show is all the evidence he needs.  But now he finds himself in a pickle.  Here are his options:

1.  Insist that the bigamy investigation is still continuing, thus giving the Browns all the ammunition they need in order to prove that they must continue to fret under the specter of the threat of prosecution and incarceration. . . . . . . . .  OR he can - - -

2.  Announce that the investigation is now concluded because he lacks sufficient evidence to prove that Kody Brown is a polygamist (or announce that Utah County has elected to disregard Utah's felony bigamy statutes and will no longer prosecute even blatantly public polygamists like the Browns).

If Buhman takes option #1, the Browns' claim of harm and standing wherewith to challenge Reynolds is reinforced all the more.  If Buhman takes option #2, he further bolsters the Browns' argument that a law which neither the state nor the counties will ever prosecute must be repealed.

Now that Snarklips and Herbert have been let off the hook, they can point the political finger of blame squarely at Buhman - let him go down in history as the dimwit who got polygamy decriminalized.

Illegal In "All Fifty States"?

Famous actor, Ashton Kutcher (whose is married to Demi Moore - 15 years his senior), appears to be preparing to test California's bigamy statutes. Kutcher's alleged mistress, 22-year old Brittney Jones has revealed information regarding her dalliances with Kutcher and claimed that he and Moore have an "open marriage" = read "plural marriage" or "polygamy". Jones even intimated that the threesome has gone much further than the conduct of "traditional polygamists" in that they have engaged in group sex together (which conduct is only protected by the Supreme Court's 2003 decision in Lawrence v. Texas).

Still being under the illusion that this kind of bigamous conduct is "illegal in all fifty states", Utah County prosecutor, Jeff Buhman, is "mulling over" whether to press charges against Kutcher, Moore and Jones for felony bigamy. However, his office is still researching whether the LDS Church has power over the California legal system since its humiliating Proposition 8 experience.

Buhman fears that Kutcher may show up on his doorstep with a film crew, only to pounce on him and declare that he has been "Punk'd".

How difficult could it be?

I have watched the news reports with interest over the last few days. Some online articles get updated, so the wording can change. My first glimpse at a statement from Utah County prosecutor, Jeff Buhman, had him saying that, now that he has the completed investigation evidence from Lehi police regarding the Brown family's bigamy crime, it could take "several months" to reach a decision on whether to prosecute.

Later statements seem to have been changed or softened. Now he is saying that his office is "mulling over" the matter and is, in fact, fascinated that in the last "10 to 15" years there haven't been (to his knowledge) any prosecutions of consenting adult religious bigamists. How could he forget the prosecution of Mark Easterday (1999) of Monroe, Utah, for bigamy? Mark was allowed to plead the charge down to adultery and pay a $500.00 fine. Later research into the court documents shows no mention of the original bigamy charge. Hmmmmm !!! ???

Anyway, while the Brown family sits huddled around its fireside, sweating bullets over whether the SturmTruppen will be at its door at any minute with five sets of handcuffs, Jeff Buhman sits in his office for months on end, wringing his hands and feet, wrestling mightily over whether to charge this dastardly, evil family with felony marriage crimes.

I ask myself - "How difficult could it be to simply pick up the phone and call the First Presidency and ask them if they want Kody incarcerated?" This controversy could be put to bed in minutes, and we could all go back to our daily lives in peace and brotherly love.