90.9 WBUR - Boston's NPR news station
Top Stories:
PLEDGE NOW
Jonathan Turley: Polygamy Case ‘A Victory For Morality’

Jonathan Turley, a well-regarded lawyer, legal scholar and professor of law at The George Washington School of Law, represented the Brown family of Utah in a recent court case in that state arguing for the family’s right to practice polygamous co-habitation. He joined us on our Dec. 23, 2013 show looking at a case that many see as the effective de-criminalization of polygamy.

Turley explained some basic legal definitions in the complicated case:

“People have been prosecuted under this since the 1950s…There is no cohabitation clause anymore, that was struck down, the court did what we suggested. Utah now has a conventional bigamy law…Many people are confusing bigamy with polygamy. Bigamy is having multiple marriage licenses. That’s a crime that is committed almost exclusively by people who hold themselves as monogamists. It is not a crime that is generally committed by polygamists who traditionally have one marriage license and the rest are spiritual marriages. So what Utah has now is it says that anybody, regardless of the structure of your family, with more than one license can be prosecuted. We have no problem with that. Polygamy is legal. In the same way that homosexual was decriminalized in Lawrence v. Texas. It is now legal to be plural in a family. Polygamy does not mean having multiple marriage licenses, it means having a plural family.”

Turley also cheered the recent ruling as a “victory for morality.”

“Reynolds in my view is one of the most infamous decisions the court has ever handed down. It was filled with rather racist and hateful statements directed against Mormons. The language the courts used was clearly to denounce what it considered to be an amoral practice that it associated with Africa and Asia. It’s an opinion that I recommend that people read, because it’s truly horrific.  It’s astonishing that it has never been overturned. In fact, it is the foundation for what are called morality laws. The most interesting aspect of Judge Waddoups’ opinion is it shows a clean break from our long history of morality laws that banned everything from fornication to adultery to cohabitation.  These are laws in which the majority simply criminalizes things they consider to be fundamentally immoral. This case represents part of a trend in which we’re moving away from those laws and in my view we’re a better nation for it. I happen to think that the Sister Wives’ case is a victory for morality in the sense that it lets every family follow its own faith and values so long as they don’t harm others. For me that’s a victory for morality, and it’s also a victory for privacy. In fact, I think this has a lot more to do with privacy than it does with polygamy.”

Turley further explained the fundamental differences between violation of privacy and legal proof of harm as the underpinnings to both 2003’s Lawrence v. Texas ruling and the current Sister Wives’ case.

“This law violates both the due process clause, which goes to Lawrence v. Texas, but he also ruled that it  violates the free free exercise of religion under the First Amendment. As to Lawrence, we argued that this case is really indistinguishable. There’s a difference between the criminalization of a consensual relationship and the recognition in terms of a marriage. This is very similar to Lawrence, and in the same way that before Lawrence, states could criminalize homosexual relationships. This did the same for people in polygamous unions or relationships. That’s the reason after Lawrence, homosexulaity could not be criminalized, it was legal and we still have the question of whether you want to recognize same-sex marriage. The same is true with polygamy, that it’s no longer criminalized, it is legal to have a polygamous family. We did not ask and we do not intend to ask for the legalization of multiple marriage licenses.

Although I support same-sex marriage, Lawrence does not dictate that states have to recognize same-sex marriage, this does not dictate that the states have to recognize plural marriage. These are two different issues in terms of criminalization  — one goes to the privacy of the home and the other goes to what a state is required to do under equal protection.”

What do you make of the Utah judge’s ruling that polygamous co-habitation should be legal? Do you see legal justifications but moral slippage? Is Turley right? Let us know in the comments below, or on Facebook, Tumblr and @OnPointRadio.

Please follow our community rules when engaging in comment discussion on this site.
ONPOINT
TODAY
Nov 21, 2014
President Barack Obama announces executive actions on immigration during a nationally televised address from the White House in Washington, Thursday, Nov. 20, 2014.  (AP)

The president throws down the gauntlet on immigration. Bloodshed and new tensions in Israel. Keystone fails. Our weekly news roundtable goes behind the headlines.

Nov 21, 2014
Laura Ingalls Wilder, an American  writer and novelist, at age 27. Her "Little House" series is a beloved semi-autobiographical take on her childhood in the Western American plains. (South Dakota State Historical Society )

A big new look at the legacy of Laura Ingalls Wilder and the woman behind the Little House.

RECENT
SHOWS
Nov 21, 2014
Laura Ingalls Wilder, an American  writer and novelist, at age 27. Her "Little House" series is a beloved semi-autobiographical take on her childhood in the Western American plains. (South Dakota State Historical Society )

A big new look at the legacy of Laura Ingalls Wilder and the woman behind the Little House.

 
Nov 21, 2014
President Barack Obama announces executive actions on immigration during a nationally televised address from the White House in Washington, Thursday, Nov. 20, 2014.  (AP)

The president throws down the gauntlet on immigration. Bloodshed and new tensions in Israel. Keystone fails. Our weekly news roundtable goes behind the headlines.

On Point Blog
On Point Blog
The Explicast, Episode Six: What Does A White House Press Correspondent Do?
Friday, Nov 21, 2014

We turn to White House Press Correspondents all the time for news, but we’ve never really wondered how they gather their information. Fortunately, our guest host Jessica Yellin had time to sit down with The Explicast to explain.

More »
Comment
 
Our Week In The Web: November 21, 2014
Friday, Nov 21, 2014

We offer a panel of hand-drawn digital sheep, and wonder how to best lead the rest of you to programs that matter.

More »
2 Comments
 
The Explicast, Episode Five: What Is Net Neutrality?
Friday, Nov 14, 2014

The Explicast dives into tech policy territory with a quick look at the real meaning of a complicated bit of tech policy known as ‘Net Neutrality.’

More »
2 Comments