Was it all just a big lie?

LYLE JEFFS (polygamist)

PARKER DOUGLAS

SEAN REYES (UTAH A.G.)

Rep. MIKE NOEL (Rules Chair)

Was it all just a big lie?

Lyle Jeffs, Warren’s brother and stand-in leader of the FLDS, just pleaded guilty to the crime of Food Stamp (SNAP) fraud, and will serve years of prison time.  Like his brother Warren Jeffs, Lyle is a notorious polygamist with some 60 children (children who could not have been born to just one woman).  Warren was never charged with polyga-bigamy.

Utah has a law in place (at least since 1976) making polygamous cohabitation (bigamy) a third degree felony punishable by up to five years in prison.  Since 1976, two defendants, Thomas Green and Rodney Holm, have been convicted under the law and served time.  In 2003 (Lawrence v. Texas) the Supreme Court decriminalized all adult consensual (non-commercial) sexual cohabitation and intimacy.  

In 2013, Federal District Court Judge Clark Waddoups (in Brown v. Herbert) affirmed that polygamous cohabitation (in Utah) fell within the ambit of the Lawrence decision’s protections.  Despite the 10^th Circuit’s later overruling of Waddoups in 2016, Utah’s Attorney General, Sean Reyes, fought to protect the language of the now-reaffirmed bigamy statute by more tightly defining the elements of the crime of bigamy (falsely purporting to marry, and cohabitating).  He also convinced the Utah (2017) legislature to add an enhancement (second degree) to the crime, so that bad polygamous actors who ALSO commit abuse (upon wives or children) or tax- (or other types of financial) fraud can face up to 15 years in prison.

When asked by the Utah House Law Enforcement committee (on February 7, 2017) if, once the new statutory language were signed into law, the A.G. would proceed with immediate enforcement, the A.G.’s chief-of-staff, Parker Douglas, testified, “Yes”.  Douglas has since left his post at the Attorney General's office.

I have to wonder if during the years-long prosecution of the very-polygamous Lyle Jeffs, Utah's distinguished law enforcement community inadvertently forgot that Lyle practice(s)(d) polygamy (i.e. had/has multiple pretend wives) throughout the period of time when he appeared before Judge Ted Stewart and complied with Stewart’s order for him to be a Salt Lake County resident.

Did the A.G. overlook Jeffs’s continued bigamy, or did Reyes elect to break his promise to the Utah legislature because he is afraid of yet another polygamy law test case (see Green, Holm, Bronson,and Brown)?  

Did Representative Mike Noel and Parker Douglas argue so passionately for the preservation of the felony penalties for “good” AND “bad” polygamists out of a sincere commitment to begin prosecuting them, OR - was it because representatives of the LDS Church were breathing hotly down their necks to keep the felony penalty in place so that the Church can continue its frantic P.R. repudiation of “criminal” fundamentalist Mormon polygamists?

Hundreds of sincere plural families and their children held a protest rally in the rain at the Utah Capitol on February 10, 2017, pleading with their legislators to see through the disingenuousness of the Attorney General and his surrogates in the House.  On the last night of the session, A.G. Reyes held an urgent, dinner-time meeting with the State Senators to urge them to pass Mike Noel’s bigamy enhancement bill (HB-99).  He argued that he was pursuing a group of polygamous human traffickers, and that this amendment would give him the tools he needed to prosecute them.  At the midnight hour, the bill passed by one reluctant vote.  

Utah has tens of thousands of polygamists practicing their deeply-held religious beliefs and lifestyles in the open.  One has to wonder if A.G. Sean Reyes has simply forgotten all of his pre- and post-election promises to prosecute all (or even ONE) of them.

Was it all just a big lie?  If you are unsure, watch these brief clips from the last legislative session:

https://www.youtube.com/watch?v=ewuaMMTMg3Y
https://www.youtube.com/watch?v=OLx5oE0e7Xg
https://www.youtube.com/watch?v=WMNNu5ag5gY
https://www.youtube.com/watch?v=sesOr5PO2vw
https://www.youtube.com/watch?v=OLu-5SLLFSw

Rep. Mike Noel campaigns to Sen. Kevin Van Tassell

Rep. Mike E. Noel

Sen. Kevin Van Tassell

THIS IS THE TRANSCRIPTION OF A CONVERSATION BETWEEN TWO UTAH STATE LEGISLATORS JUST LEAKED (out of my brain).
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HOW SAUSAGE IS MADE ................

Rep. Noel:-  Kevin, we have only four days left in the legislative session.  What are we going to do to get this anti-polygamy bill pushed through?
Sen. Van Tassell:-  Hey, Mike, I'm doing everything I can, but it's YOUR bill, and I'm getting a lot of blow-back.  Did you think this was gonna be easier than last year?
Rep. Noel:-  Look, I'm up here every day threatening the other Senators with every weapon I've got.  Don't you have some influence with leadership?
Sen. Van Tassell:- Yes, but they've got dozens of polygamists up here every day beating their doors down in opposition to this bill.  Haven't you seen the thousands of emails we're getting from polygamous families protesting the problems with HB-99?  Plus, I'm sure the Minority Caucus is voting as a bloc against it, so you're wasting your time with them.  This could come down to a very close vote.  Do you even want to risk losing on the floor?  It's out of Rules now, so do you seriously want me to run it if we don't have the votes?
Rep. Noel:-  I don't understand what your reluctance is.  Aren't you still angry about what that polygamist group did to your daughter?
Sen. Van Tassell:-  Yes, but I don't see what the connection is between her experience and what you've got in this bill.  How's this gonna help her?
Rep. Noel:-  What do you mean?
Sen. Van Tassell:-   I mean that this amendment focuses on all of the polygamists who cohabitate and say they are "married".  Doesn't that blanket all of the 30,000 or so polygamists in Utah?  How is that going to help my daughter?  Are you willing to build 30 new prisons to put them all in?  And what about all the kids left behind to burden the state with public assistance costs?  I don't think your buddy Parker has any intention of arresting even one of them.  What is Sean Reyes trying to achieve with this thing?  How come you are so driven by it?  You're like a man possessed!  Plus, you guys can't even get your story straight.  First you say it makes prosecution harder; now you say it makes prosecution easier.  Which is it?
Rep. Noel:-  Well, I've got the Church breathing down my neck.  This is my "swan song".  I'm not running again, so I feel obligated to the Church to do what it's asking me to do.  I almost got it done last year, so they are pushing hard.  They even told me to kill it if there is any hint of it being reduced from a felony to a misdemeanor.
Sen. Van Tassell:-  So why are they so worked up about it?
Rep. Noel:-  They're having a public relations problem.  They're out there trying to convert people, and the first question people ask the missionaries is "how many wives do you have?".  People can't seem to draw a distinction between the damned polygamists and the TRUE church.  We need to be able to keep up the story that these polygamists are apostates and criminals, and we haven't been like them since my grandfather's time. He was a good polygamist.
Sen. Van Tassell:- Yeah, but do you think it's our role as a legislature to fix the Mormon Church's P.R. problems around the globe?  Polygamy is already a felony, isn't it?
Rep. Noel:-  Well, yeah, but Judge Waddoups struck it down because we can't go after simple cohabitation any more, so we have to change the "OR" to an "AND", and tighten up the definition so it won't be subject to a constitutional challenge.
Sen. Van Tassell:-  Mike, do you seriously think that singling out just the polygamists is going to shield this thing from a challenge?  I think Parker's game is to avoid a challenge simply by NEVER using it to go after anyone.  Look at Kody Brown!  They twisted themselves in knots trying to get out of prosecuting him.  If he had been arrested, the bigamy statute would have been overturned (along with Reynolds for that matter).  You guys are walking a very fine line here!
Rep. Noel:-  Look, the Church is very determined on this.  They told me that they didn't care how it was written, it just absolutely MUST stay a felony.  I'm just doing what I'm told, and I think the change we got from Snow gives this thing more teeth to get the real bad guys.
Sen. Van Tassell:- Yeah, but look - you've got articles now coming out in the paper pretty much saying the Church is the one pushing for the bill, and then you and Stratton get up there on the house floor with all your "apostates", and "hijack-my-religion" lingo.  How is anyone supposed to think that the Church isn't all over this and isn't trying to tell us what to do?  I don't like being bullied like this, Mike.
Rep. Noel:-  Can't you just be loyal to me and the Church?  Just having these people in Utah is offensive to you and me and our religion.  I did take a page from Diedre's book and I put safe harbor language in there, so at least now we can sell it as a gesture of compassion.
Sen. Van Tassell:- I think you're going one bridge too far.  My daughter had a really bad experience, but I don't think having a purely symbolic law in place that demonizes thousands of innocent families - but is completely unenforceable - is gonna do anything to make her life better.  In fact, it seems like it will just force the bad guys to go deeper into hiding.  Where's the compassion in that?  Who really benefits from this?
Rep. Noel:-  You're forgetting that we have a duty to uphold the constitution's Enabling Act and forbid these polygamist marriages.
Sen. Van Tassell:-  Oh, come on, Mike, you know better than that.  You heard Representative Nelson. These people don't get multiple marriages - that's precluded by 30-1-2. The constitution says nothing about plural "relationships".  Don't these people have civil rights or whatever?  You know - like freedom of association, freedom of speech, equal protection, et cetera?  Their relationships are a private lifestyle decision, and we can't go after that any more.  Wasn't Holm the last polygamy prosecution in 2001?
Rep. Noel:- Well, Parker told the Judiciary Committee that he's gonna start again once this passes.
Sen. Van Tassell:- Yeah, and you told the Judiciary Committee that there's a bunch of people sitting in prison for polygamy right now.  If you believe that, I've got a bridge in Brooklyn I can sell you.  No, Mike, I think we should kill this bill, and if you won't kill it, then I think you should expect a bloodbath when it hits the Senate floor, AND you should think about the many unintended consequences if it does pass.  This thing is likely to turn into Utah's version of Prop 8, and you'll go down in history as the guy that got Reynolds overturned and ruined the Church's chances of escaping from past AND future polygamy.
Rep. Noel:-  Damn!  You're no help!
Sen. Van Tassell:-  Look, I've got a better idea.  Let's talk to these Church lobbyists of yours and arrange to have a round table meeting with this Joe Darger guy.  He seems to have contacts in all the fundamentalist communities.  If we get everyone to the table, we can maybe hammer out some sort of compromise.  If that can't work, then I think we see the writing on the wall.  If this is your last gasp, you may be wasting bullets. Remember Governor Pyle.
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WHY SHOULD YOU VOTE NO ON HB-99

WHY SHOULD YOU VOTE NO ON HB-99

1.       Last year this bill (HB-99) was “HB-281”.  It failed at the eleventh hour when its senate sponsor (Jerry Stevenson) circled it.  Nothing has changed except for the addition of harsher (2^nd degree felony) penalties for polygamists who commit collateral abuse, and a weak defense for women who leave the lifestyle and inform on the families they leave behind.

2.       Last year, Mike Noel sold this bill as a cure for the Kody Brown “Sister Wives” lawsuit.  Now that the Supreme Court declined to hear Kody Brown’s case, the bill is being sold as a way to “fix” the unconstitutionalities of the current bigamy statute.

3.       The nature of the bill is to COMBINE the original prongs (bad acts) of “cohabitating” and “purporting”, and to single out only those actors who do BOTH things – i.e. Fundamentalist Mormons who have multiple partners and who also pretend that more than one of them is a make-believe spouse.

4.    Parker Douglas told the House Judiciary Committee that this amended language will make it "harder" to prosecute polygamists because they would have to violate TWO prongs - cohabitating AND purporting.  Mike Noel told the House Chamber that this bill will "strengthen" the AG's ability to prosecute polygamists.  Which one of them is lying?

5.       Changing “OR to “AND” combines the vague “purports” prong and resurrects the once-overturned (Waddoups Dec. 2013) “cohabits” prong.  This is a blatant violation of the Hialeah (1992) facial AND operational neutrality doctrines, since it targets a specific minority class.  A statute fails facial neutrality scrutiny when it singles out a minority class in its plain language, and it fails operational neutrality when it targets that class in the way it gets enforced.  For a hundred years, 99.9% of Utah bigamy prosecutions have been of Fundamentalist Mormon plural families.  This could not be more blatant.

6.       Last year, plural families were offered and promised a reduction in penalty (infraction for “standalone” polygamy).  This was later rescinded during House floor debate because the LDS Church instructed Mike Noel and Keven Stratton to “kill the bill” if the penalty risked being reduced.

7.       It has been argued that the 1894 Irrevocable Ordinance prohibiting “polygamous or plural marriages” compels the legislature to enact anti-polygamy legislation.  This is FALSE for the following reasons:

a.       No attempt was made to accomplish this until 1935.

b.       We ALREADY have a statute (30-1-2[1]) that perfectly VOIDS any second or multiple marriages.

c.        76-7-101 makes NO MENTION of polygamy or plural marriage.

d.       NO plural families have more than one marriage – despite silly arguments to the contrary.

e.       The Ordinance stops short of prohibiting plural relationships or multiple-partner relationships.

f.         A similar ordinance was voided in Oklahoma in 1911 (Coyle v. Smith).  Utah can easily remove this clause any time because it places Utah on lower than equal footing with the other states before the federal government.

8.       All private adult consensual “cohabitation” was de-criminalized in 2003 (Lawrence v. Texas).

9.       Criminalizing “purporting” is the same as forbidding free speech – utterly unconstitutional. It is also “Prior Restraint”.

10.    A sincere bigamy statute would be one whose language follows North Dakota’s – one that makes the acquisition of a second legal marriage a crime – not sleeping with different bed partners.

11.    Criminalizing 30,000 innocent Utahns for the last several decades has served only to drive them underground and into isolation.  This has created an enduring climate of fear, allowing abusers to flourish and stay hidden.

12.    Parker Douglas told the 10^th Circuit Court that a principal goal behind this legislation is to make it easier for law enforcement to conduct investigations, searches and seizures.  This relegates tens of thousands of Utahns to second-class citizenship.

13.    A.G. Sean Reyes insisted that he will never use this statute.  A.G. Mark Shurtleff barely used it once, so why is there such a desperate full-court press from certain quarters to keep it in place.  What is the value of a statute that is unenforceable due to its unconstitutionality and the inevitability of a Supreme Court challenge every time it is used?

14.    Polygamists don’t want to legalize plural marriages.  They want the State OUT of their lives, not IN it.

15.   These statutes and amendments do nothing to address the true abusers in isolated communities.  When Utah had Warren Jeffs in custody, it did not even bother to charge him with bigamy – NEITHER did it bother to charge him with Mark Shurtleff’s “Child” bigamy statute, even though it knew that he had molested numerous young teen girls.  It also failed to charge David Kingston and Daniel Kingston (both served prison time for other offenses) who to this day have many purported “wives”.

16. Mike Noel has made several media appearances claiming that Fundamentalist Mormons have hijacked his religion.  He told the House Judiciary Committee that people sit behind bars right now for the crime of polygamy.  If so, what are their names?

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This document includes House Committee Amendments incorporated into the bill on Wed, Feb 8, 2017 at 11:34 AM by ryoung.

Representative Michael E. Noel proposes the following substitute bill:

BIGAMY OFFENSE AMENDMENTS

2017 GENERAL SESSION

STATE OF UTAH

Chief Sponsor: Michael E. Noel

Senate Sponsor: ____________

---

7     LONG TITLE
8     General Description:
9          This bill modifies the Utah Criminal Code regarding the offense of bigamy.
10     Highlighted Provisions:
11          This bill:
12          ▸     revises the definitions of bigamy and child bigamy.
13     Money Appropriated in this Bill:
14          None
15     Other Special Clauses:
16          This bill provides a special effective date.
17     Utah Code Sections Affected:
18     AMENDS:
19          76-7-101, as last amended by Laws of Utah 1997, Chapter 296
20          76-7-101.5, as enacted by Laws of Utah 2003, Chapter 6
21     

22     Be it enacted by the Legislature of the state of Utah:
23          Section 1. Section 76-7-101 is amended to read:
24          76-7-101. Bigamy -- Penalty -- Defense.
25          (1) A person is guilty of bigamy when, knowing [he] the person has a husband or wife

26     or knowing the other person has a husband or wife, the person purports to marry [another
27     person or cohabits with another] and cohabitates with the other person.
28          (2) Bigamy is a third degree felony [of the third degree].
29          (3) Bigamy is a second degree felony if the accused is also convicted during the same
30     prosecution of the following:
31          (a) inducing marriage or bigamy under false pretenses;
32          (b) fraud:
33          (c) domestic abuse;
34          (d) child abuse;
35          (e) sexual abuse;
36          (f) human trafficking; or
37          (g) human smuggling.
38          [(3)] (4) It [shall be] is a defense to bigamy that:
39          (a) the accused reasonably believed [he] the accused and the other person were legally
40     eligible to [remarry.] marry;
41          (b) the accused is a person who, under reasonable fear of coercion or bodily harm, left
42     a bigamous relationship as defined in Subsection (1); Ĥ→ [or] ←Ĥ
43          (c) the accused is a minor who left a bigamous relationship as defined in Subsection
44     (1) Ĥ→ [.] ; or
44a      (d) the accused has taken steps to protect the safety and welfare of any minor child of a
44b     bigamous relationship. ←Ĥ
45          Section 2. Section 76-7-101.5 is amended to read:
46          76-7-101.5. Child bigamy -- Penalty.
47          (1) An actor 18 years of age or older is guilty of child bigamy when, knowing he or she
48     has a wife or husband, or knowing that a person under 18 years of age has a wife or husband,
49     the actor carries out the following with the person who is under 18 years of age:
50          (a) purports to marry the person who is under 18 years of age; [or] and
51          (b) [cohabits] cohabitates with the person who is under 18 years of age.
52          (2) A violation of Subsection (1) is a second degree felony.
53          Section 3. Effective date.
54          If approved by two-thirds of all the members elected to each house, this bill takes effect
55     upon approval by the governor, or the day following the constitutional time limit of Utah
56     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,

57     the date of veto override.

Seriously !!! ???

A friend sent me two articles from a Utah Fox television station.  The first is a great recap of the events of yesterday at the 10th Circus Court of Appeals in Denver.  Jonathan Turley represented the Kody Brown family in its lawsuit against Utah's bigamy statute.  The reporter, Ben Winslow, told me that much of the court hearing focused on standing.  Again, Utah's Parker Douglas (in his appeal) argued that the Browns were never at risk of being prosecuted for their polygamy, so they had no standing to complain of being harmed by the statute.

We find in another report today by Ben Winslow that there is purportedly a mystery anti-polygamy bill lurking in the Utah legislature that seeks to "re-criminalize" people who live with others and purport to be married. 

"It wouldn't make cohabitation a crime unless they were 'purporting' to be married," [Parker] Douglas told FOX 13 outside of court. "I think it clarifies who might be covered by the law. The reason for it is to give the public precise knowledge of what is criminal and what is not." 

I'm a bit confused.  Isn't this precisely the same statutory language that Judge Waddoups annihilated on December 13, 2013?  What is cohabitation anyway?  Is it - "RESIDING WITH - ", or is it - "HAVING SEX WITH - "?  I still don't know.  I don't think they know.  Besides, who the hell can enforce that kind of lunacy?  And what does purport mean?  If I say my second lady partner is a wife, then is that speech prohibited?  Under the First Amendment, are there still certain phrases I may not utter?  Before the legalization of gay marriages, were gays criminalized for saying "husband" or "wife"?  

One of the justices in the three-judge panel asked Parker Douglas if he wasn't trying to " . . have his cake and eat it too?"  In other words, is Utah trying to create a situation where no polygamist can EVER challenge the law because the State can always say that it has no plans to prosecute anyone under the law?  It always comes up with the same two STUPID excuses -  

1                   1.   "The State has a legitimate interest in regulating marriage."

 Well, yes, of course it does, you idiots, but polygamists don't get multiple marriages, so they don't violate the state's marriage regulations.  How on earth can you "regulate" who lives or stays with "whom"?

2.   "The State has a longstanding policy of not charging polygamy as a crime alone, unless it was in concert with other crimes like underage marriage or abuse.

A very smart attorney told me last week that this policy has a problem of "overbreadth" - - in other words the State can selectively pick and choose which "other crimes" it will prosecute using the polygamy (they mean bigamy) charge as an enhancement.  As I asked before, would a pimp be charged with prostitution AND bigamy?
 

If you have read even a few of my blogposts, you are aware that I simply want to make sense of things.  The only thing that makes sense to me is that no self-respecting attorney would go through these contortions to preserve a law that the State will never dare to enforce, unless there were some big fat Church breathing down his neck to keep the damned law in place so that it can stigmatize and villainize Fundamentalist Mormons.

I still wish that Judge Walter Steed had sued the State.  He was removed from his judgeship after many years because of his large family (see this earlier post http://fallofreynolds.blogspot.com/2011/01/higher-standard.html).

I can't read the tea leaves, but if the justices read Judge Waddoups' 2013 ruling, they have to realize that Utah is straining at something absurd.  Look at it this way: 

A. Utah wants a bigamy statute to remain in force to prosecute cohabiting adults who think of themselves as spouses, even though in the eyes of the law they CANNOT BE SPOUSES.

B.  A polygamous family steps forward and sues the State because the State classifies the family as felons.