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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