To Appeal Or Not To Appeal

Utah Governor Gary Herbert

I'm not a lawyer, though I play one in my dreams.  I'm also not a politician, so I won't be going to hell.  Nevertheless, I want to look more closely at the question of whether the future Attorney General of the pretty, great state of Utah should or will appeal the decision in Brown v. Buhman which decriminalizes my polygamous brethren in Utah.

First, an appeal would require a good attorney.  When Laura DuPaix defended the state in the Holm case, she blubberingly argued with Chief Justice Christine Durham that Rodney Holm was in fact married to Ruth Stubbs, even though there was no legal marriage in place between them.  If the state cannot find anyone smarter than her or Jerrold Jensen to plead before the 10th Circuit, it should quit while it is behind.

Secondly, an appeal would, in this case, be a bizarre legal anomaly, because the gist of it would be as follows:

 "Dear 10th Circuit justices, Judge Clark Waddoups recently decriminalized polygamy in Utah.  Utah vehemently disagrees with the ruling and wants the polyga-bigamy statute reaffirmed.  These evil, criminal polygamist outlaws must not be permitted in our State.  We have said before that we have ABSOLUTELY no intention of EVER prosecuting any of them, we just desperately want you to restore the law so that we can go back to calling them criminals and so that we can feel better." 

Thirdly, Waddoups spent many pages of his published Brown ruling demonstrating how racist and reprehensible the Reynolds decision was.  For the 10th Circuit to reverse him in Brown, it will have to come out in full support of Reynolds, an opinion which should have died 100 years ago along with Davis v. Beason (1890) ( - denied Mormons' voting rights) and Late Corp. (also 1890) - in which the court said: 

"The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world."  [to hell with Church/State separation! {R.O.}]

Those two odious rulings faded into ignominy without ever needing to be overturned.

Fourthly, the new AG may perhaps not win on appeal.  Yesterday's evisceration of Utah's bigamy/polgamy ban, applies ONLY to Utah.  If a 10th Circuit appeal were to fail, then the decision would reach at least many of the other western states that have also somewhat half-heartedly prohibited polygamy. A subsequent appeal to the U.S. Supreme Court could result in the voiding of Reynolds nationwide and the end of all anti-polygamy laws.  I wonder if the LDS Church(/Gary Herbert) really wants to take such a risk.

Fifthly, if a 10th Circuit appeal resulted in the reversal of Waddoups, Utah would find itself in the same asinine situation in which the province of British Columbia, Canada, now finds itself.  Chief Justice Robert Bauman issued hundreds of pages of contortions in his ruling that polygamy must continue to be criminalized in Canada - the main argument of which was that polygamy is "inherently" harmful - - it hurts Canadians - just like knives and automobiles do.  I semi-sincerely expected the RCMP to raid Winston Blackmore's and Jimmy Oler's homes the next day and incarcerate them.  On the contrary, the reaffirmation of the law (SB-293) has not resulted in any indictments - so the the whole thing was a joke.  I'm sure that B.C. realizes that if it goes after a polygamist, the whole appeal process will likely start all over again.  

If Utah won a reversal of Brown on appeal, it would face the same absurd dilemma.  If it were to flex the claws of the reaffirmed statute (and its anti-cohabitation prong), it would be obligated to go straightway over to Joe Darger's house in Herriman and arrest Joe, Alina, Vicki and Valerie Darger (not to mention the Brown tribe in Las Vegas).  After all, Joe has confessed numerous times to felony bigamy on television and in his book, Love Times Three.

There is the $39,000 question - would Utah still doggedly refrain from prosecuting polygamists, or would it start a new round of convictions, imprisoning ten thousand religious cohabiters?  How would that go over with the liberal public?  Is there enough prison space?  Are there enough foster families?  Or would Javert lose his bloodlust and jump off a bridge into the Seine?

If I were Jonathan Turley, I would be champing at the bit to go to Denver and take a second whack at Utah's corrupt Attorneys General before the 10th Circuit.

Again, this is an exquisite dilemma for the governor, the Church, and the next A.G.  I trust they will approach it with a minimum of wisdom, compassion and inspiration.

Something Fishy

I think there must be something fishy going on.  It has been almost a year since the last hearing in the Kody Brown bigamy statute challenge case.  Federal District Court Judge Clark Waddoups has had this case for AGES !!  It was clear that he would rule in the Browns' favor.  Maybe he has gotten cold feet.

This case is HUGE.  Jonathan Turley is positively wetting himself in anticipation of overturning one of American history's greatest judicial injustices.  What is with this protracted delay?

You KNOW that there are political and government officials in and out of Utah who don't want polygamy to be decriminalized.  That would make them look like the fools they are.  Have these officials had quiet ex parte discussions with Waddoups to try to get him to change or at least delay his ruling?  That would be unthinkable (unless you look at what happened after the 1953 Short Creek raid and internment debacle).

I can see it taking two months, or maybe even six, for Waddoups to write up his decision, but this is starting to get silly.  Not too long ago, I gave him till the end of the day - - - - he didn't obey me!

As of last week, now 15 states perform gay marriages.  Why cannot Utah stop criminalizing the very existence of people who have two or more bed-partners?

I guess I should not have been so naive as to think that this would go smoothly.

Renn. 
--------------------------------------------------------------------------------------------
Update:
I want to soften my cynicism.  As of 12/13/13 (31 days after this original post), Judge Waddoups came through with a resounding repudiation of Utah's bigamy statute.  I guess he just wanted to give me a Christmas gift.
Renn.

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.

Topsy-Turvy

I have made this point before in my post: "THOUGHT vs. DEED".  Jerryold Jensen's motion and recent reply in the Kody Brown case seeking a ruling on the constitutionality of Utah's farcical bigamy statute prompted me to make it once again.

The First Amendment forbids government to burden Americans' exercise of their religious beliefs. The Reynolds court came along and eviscerated this liberty.  It said that states could itemize a list of religious activities which can be believed in but NOT practiced.  Thus, Utah (and some neighboring states) could include polygamy as a conduct which could be criminalized.

So, in the wake of Reynolds, you could believe in polygamy to your heart's content (as Mormons do), but you could not practice it.  The thoughts were just fine - the ACTIONS were not.

So, there are tens of thousands of Fundamentalist Mormons in the Intermountain West who eagerly embrace plural marriage in their minds.  Utah residents who proceed to take a plural wife are presumptive felons (although the current Attorney General's office insists on NOT prosecuting them).

The prohibited actions (contemplated in Reynolds) occur when a man is married to one person and goes to bed with a different person (male or female).  That makes you a felony bigamist.  The 2003 Lawrence decision overruled that legislation, otherwise tens of thousands of Utahns would be in prison now for bigamy.  So they can't prosecute the SEX.  They have to rely on the other prong of the bigamy statute - the "purport" prong.  You are guilty of bigamy if you are married to one person, and assert (believe) that you are married to another.  Kody Brown has ONE legal wife.  He THINKS of the other three ladies as "wives" in a religious sense, but the State has already said that having additional spouses is legally VOID and impossible.  Legally, the other three women are girl-friends, mistresses, or just partners in an affair.  So, Brown can call them "wives", but wives they are not.

As Jerryold Jensen points out in his reply, Kody's sexual activities with the various ladies are utterly shielded by Lawrence.  It is the fact that Brown THINKS of them as "wives" that makes him a felon.

So now we have the unintended consequences of the Reynolds insanity.  We have a state that REFUSES to prosecute the prohibited exercise (actions) of the believers, while it insists on criminalizing  . . . . . . . . . . . .

THEIR THOUGHTS !!!!!!!!!!

Wait though!  It criminalizes their lifestyle (existence and mindset) as did Bowers to homosexuals (until 2003), but the chief Mormon law enforcement officers of the state dare not prosecute it now for fear that someone like Kody Brown will come along and TEST the statute in the courts.  The Church wrote the statute.  Is it not the Church now who is frantically trying to salvage it?  I wouldn't be surprised if those Lehi Keystone Kops have already been excommunicated for the biggest tactical blunder in modern Church history.

Topsy-Turvy.

The following YouTube video is a Monty Python skit about church police.  Skip to 00.36.

They're Not The Same

The Salt Lake Tribune published an article yesterday in which a Deputy Attorney General made some remarkable comments about Kody Brown's challenge of Utah's lame bigamy statute.  In a state whose principal church successfully tells whopping lies to its membership it is not hard to notice that senior law enforcement representatives live in utter la-la-land.

Jerrold Jensen, whose unenviable task is to face down Jonathan Turley, suggested to Tribune reporter, Lindsay Whitehurst, that the 2003 Lawrence v. Texas decision will not help the Browns' case.  Just so you can see the absurdity of his thinking, let me play this out in simple terms.

When John Geddes Lawrence and his male partner were arrested in Texas for gay sex acts, it had nothing to do with any attempts to marry.  Their crime was their private homosexual sexual activity.  Gays all across the nation would love to get legal marriage licenses.  That's what Proposition 8 was all about.  They don't just want "legal unions".  They don't want merely not to be classed as criminals any more - they want legal, state marriages - - you know - the kind with a state marriage license and certificate - the kind that only legal divorces can undo.

Polygamists have private sex - just like other married and single Americans.  The Lawrence decision made all of that legal, - constitutionally protected.  The sex and the private expression of it between (or among) consenting adults is beyond government's power.  Polygamists cannot be charged for their private sex, and Utah law enforcement officials damn well know it - which is why they now: a.) will never charge consenting adult polygamists, and they: b.) dread having to defend the bigamy statute.  They insist that the law is constitutional, but they insist on not enforcing it.  Let us read what AG Jerrold Jensen said -

'. . . State lawyers, on the other hand, point to other court decisions upholding the ban and say marriage can be regulated by the government. They argue the law is fairly applied to both polygamists and people who commit fraud by marrying more than one unknowing person at a time. Deputy Utah Attorney General Jerrold Jensen said polygamists shouldn’t rely on Lawrence v. Texas, the landmark 2003 right-to-privacy case that struck down laws banning intimate homosexual contact.

"Plaintiffs try to equate private sexual conduct in the home with marriage," he wrote in court documents. "They are not synonymous."'

Honestly, I am confused by his argument.  He says that we polygamists equate our private sexual conduct with marriage.  No, we don't.  We speak of our ladies as "wives", but neither in Arizona nor in Utah does the state recognize or legitimize these religiously-framed relationships.  In fact, in Utah, such relationships cannot claim official marriage status, because they are voided by law.

     30-1-2.   Marriages prohibited and void.
     The following marriages are prohibited and declared void:
     (1) when there is a husband or wife living, from whom the person marrying has not been divorced;
     (2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
     (3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
     (4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
     (5) between persons of the same sex. 

     (6) Marriages between cats and dogs (yes, I added this one !!!)

I think what Jensen is trying to say is that the crime we polyg's commit is that we think of our partners as "wives", even though the state forbids such thinking, and that we become felons because we wish our relationships were licensed.  On the contrary, we don't wish to have our unions legitimized by the state, and certainly no homosexual has ever been arrested for wishing he could have a marriage license.  Furthermore, Mr. Jensen, it seems to me that it is the state that wants to classify our non-legal relationships as "marriages", so that it can find us guilty of committing bigamy.  Tom Green spent several years in prison for having multiple wives, even though he was legally single.  

Jensen is ostensibly conceding that Lawrence will protect the Browns' sexual activities, but it will not protect the lifestyle they have adopted.  I agree.  Lawrence was never about lifestyle or relationships - it was only about private sex.  However, when Jensen gets to argue his tortured reasoning in January, will he be able to point to a single statute or Supreme Court decision that affirms the criminality of a RELATIONSHIP !!!!!!!!!!!!!!!!! ?  I can hear Judge Waddoups giggling already.  Will Jensen argue that our crime stems from our improper use of the word "wife"?

In the 1940's, one of Rulon Allred's wives was arrested for playing the piano at a church frequented by polygamists.  If Arizona and Utah still think that kind of tyranny is okay, I should move to France.

May I Say?

May I say that Utah's (and now Utah County's) policy of only prosecuting bigamy infractions committed concurrently with other crimes is disingenuous?

It is already reminiscent of Alice In Wonderland that Utah insists on criminalizing a lifestyle, while doggedly refusing to prosecute it. 

Utah has a policy of not prosecuting consenting adult copulators (see Lawrence v. Texas, 2003) while arguing that the bigamy statute is Constitutional.  We know this, because deputy AG, Jerrold Jensen reserves the right to prosecute polygamists if they commit some "other crime".  What other crime?  The moment the AG concedes that the statute is Constitutionally questionable (like Gov. Leavitt did), he loses the test case in the appeal courts.

Since it is not clear what "other crime" will trigger a polygamy prosecution, I can only assume that if I speed on a Utah highway, the officer will first ticket me for speeding, and then arrest me for having several bed-partners.  Polygamy is thus an "enhancement", an "aggravation", like the use of a weapon during a burglary.

May I say "Bull$#!+"?