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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Breitbart Agrees

I have been saying for some time that the 14th Amendment doctrine of equal protection spawned the current arguments in favor of gay marriage.  All states are now on a slippery slope to approving it.  The Supreme Court may soon insist.

I have also long been saying that the arguments endorsing gay marriage must equally be applied to American polygamists (see my THREE TIERS post -  http://fallofreynolds.blogspot.com/2011/08/three-tiers.html).

Recent Supreme Court decisions have prompted more commentators to acknowledge these realities.  I quote in full below a brilliant article from Breitbart.com.
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http://www.breitbart.com/InstaBlog/2013/06/30/The-road-to-polygamy

The road to polygamy

by John Hayward 30 Jun 2013

Proponents of gay marriage often make light of the slippery-slope argument that same-sex marriage will lead to legalized polygamy.  I can see why they want to dismiss that argument, but they're being silly.  Of course same-sex marriage will lead to polygamy.  It is inevitable.  It'll take a little while, but it's coming.

Simple common sense tells us that every argument deployed in support of same-sex marriage is readily available to the polygamy activists.  Who are we to tell three women and one man that they can't be in love?  Who are we to deny official recognition, and government benefits, to their loving union?

This isn't just a rhetorical trick.  The essence of the gay marriage argument is that the sex of the participants is absolutely irrelevant.  If that's the case, then how can the number of participants be essential?  Everything except the exchange of vows between legal adults in a committed relationship is being stripped from marriage.  The sense that society has a deep and abiding interest in promotion the union between a man and a woman has been lost.  The question is now framed purely as one of unfair exclusion: hidebound traditionalists, religious zealots, and generally mean people are trying to keep gay people from getting married, but the forces of enlightened tolerance are riding to the rescue.  Read Supreme Court Justice Anthony Kennedy's majority opinion in the Defense of Marriage Act decision; he spends a great deal of time thundering that no person of good will could possibly advance a logical reason to prevent the federal government from extending benefits to same-sex couples.  The polygamists will simply take him at his word, and read his decision right back to the Supreme Court, when it's their turn to make a bid for "tolerance."

I don't think the legal concept of "consenting adults" is necessarily voided by same-sex marriage, although it's under attack from other directions.  For that reason, slippery-slope warnings about legalized bestiality and pedophilia are going too far.  But polygamists are consenting adults.  And, as a report at BuzzFeed indicates, they were very, very pleased with the Supreme Court's DOMA decison:

The Supreme Court’s rulings in favor of same-sex marriage Wednesday were greeted with excitement by polygamists across the country, who viewed the gay rights victory as a crucial step toward the country’s inevitable acceptance of plural marriage.

Anne Wilde, a vocal advocate for polygamist rights who practiced the lifestyle herself until her husband died in 2003, praised the court’s decision as a sign that society’s stringent attachment to traditional “family values” is evolving.

“I was very glad… The nuclear family, with a dad and a mom and two or three kids, is not the majority anymore,” said Wilde. “Now it’s grandparents taking care of kids, single parents, gay parents. I think people are more and more understanding that as consenting adults, we should be able to raise a family however we choose.”

“We’re very happy with it,” said Joe Darger, a Utah-based polygamist who has three wives. “I think [the court] has taken a step in correcting some inequality, and that’s certainly something that’s going to trickle down and impact us.”

Noting that the court found the Defense of Marriage Act unconstitutional because the law denied marriage rights to a specific class of people, Darger said, “Our very existence has been classified as criminal… and I think the government needs to now recognize that we have a right to live free as much as anyone else.”

There's nothing illogical about what Darger is saying.  The same-sex marriage movement is predicated on the notion that nuclear families are nothing special - they're just one of many alternative lifestyle arrangements, worthy of no special recognition from government or society.  And the argument has indeed been framed as "denying marriage rights" to classes of people, rather than insisting upon the unique value of "traditional" marriage.  (I find myself using that phrase when I write on this topic, to distinguish the traditionally understood definition of marriage from the same-sex variety, but I've heard it said that qualifying the term "marriage" in any way is conceding vital intellectual ground to those who wish to re-define it.)  Why should the polygamist "class of people" be "denied" these "rights?"

It might be a forlorn hope at this point in the discussion, but I think we should re-examine the vital importance of marriage between men and women to society.  We never should have stopped emphasizing this unique value, and assumed the defensive crouch that lets activist Supreme Court judges sneer that no one can make a reasoned argument against gay marriage any longer.  It won't be much of a consolation watching the polygamists bludgeon Justice Kennedy with his own words in a few years.

Insult to Injury

Forgive my coarse language, but I had a couple of WTF moments yesterday.  Before I get to that, here's a portion of a letter mailed by a telephone company to a subscriber:
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Dear Mrs. XXXXXXX,

We have made repeated unsuccessful attempts to contact you by phone to inform you that your line has been disconnected.  If you wish to pay the past due balance and have your line reconnected, please reply to this letter or call us on the phone.

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FOX NEWS yesterday aired a spot showing a gathering of residents of a small mid-western town.  The people were welcoming home a young Iraq veteran who had lost his arm and both legs in an IED explosion.  The reporter pointed out that the generous townspeople had managed to collect $50,000.00 in donations to pay for the soldier's medical expenses. WTF !!!!!!!!

Later, FOX NEWS reported that the International Monetary Fund has recently had to pay out so much in relief to failing nations like Greece, Ireland and Portugal, that it (the IMF) is now looking for approximately $3 trillion dollars in bailout money (the largest portion of which would need to come from U.S. taxpayers).  WAIT !!! - wasn't it the IMF (and its private banker owners) who looted all our money in the first place through fractional reserve banking and usury?  WTF !!!!!!!!!!
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Lastly, I am starting to get befuddled by some of the circular reasoning surrounding polygamy.  Some of it goes something like this:

"I resent these polygamists who break the law, take multiple wives and go on TV to parade their criminal lifestyle in our faces.  I resent them because this should not be allowed, and they are breaking the law!"

Polygamy should be against the law because I resent it.  It is offensive.  It is against everything we are trying to do here in America."
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"The circular argument uses its own conclusion as one of its stated or unstated premises. Instead of offering proof, it simply asserts the conclusion in another form, thereby inviting the listener to accept it as settled when, in fact, it has not been settled. Because the premise is no different from and therefore as questionable as its conclusion, a circular argument violates the criterion of acceptability."
(T. Edward Damer, Attacking Faulty Reasoning. Wadsworth, 2001)

How do you argue with it?

I noticed yesterday that Joe Darger and his three glamorous wives appeared on Good Morning America to announce the publication of their new book, LOVE TIMES THREE (written with reporter, Brooke Adams).

I wish to make merely one observation.  There are apparently several unmentionable hater-harpies who cannot contain their tooth-gnashing over this.  From what I understand, the Dargers are decent people with normal kids and a moderately successful lifestyle.  The hate crusaders will rant on ad nauseam about child brides, lost boys, baby cemeteries, incest, maleducation, welfare fraud, and God knows what else, but none of that applies to the Dargers.

Truth is, there is no such thing as a "typical" polygamist family, so you cannot make sweeping generalizations about people from this culture.  I know the Mother Church is cringing over this new, happy band of polygs stepping into the cosmopolitan limelight.  Shurtleff is at a loss as to what to do.  The Browns want to show they have been threatened by a felony bigamy statute, and Shurtleff insists that the statute is there, not to prosecute polygamists, but rather to teach the people of Utah the wisdom of their elders.

I would never try to tell a gay man he is evil not to be attracted to women.  Likewise, the haters can whine on endlessly about the wrongness of plural marriage, but they cannot argue with reality, and now reality is staring us all in the face.  I understand that one of the approaches recently taken by the haters is to say that the Dargers' book is poorly written.  I just read the book, and I can tell you that the content and linguistic delivery are both impressive, so I can only assume that the haters cannot read, or that they did not in fact read the book.  Truth is - the message of the book is entirely autobiographical.  It is hard to argue with facts, and it is not easy to argue that another person's feelings are not really his or her feelings.  The Darger family explodes the prevailing stereotypes.  The Dargers' television appearances have silenced many critics.  Their very existence neutralizes all of the tabloidy, sensationalistic squawking about polygamy in general.  I cannot wait to see Dr. Drew do a '180' on his own show.