January 18th, 2017 by Mark Henkel

On January 19, 2017, the very last full day of the Obama Presidency, the Supreme Court of the United States (SCOTUS) will be “in CONFERENCE” regarding the “Sister Wives” polygamy case, Brown v. Buhman. Unfortunately, the issue of unrelated consenting adult polygamy (UCAP), itself, will not be the focus of the Supreme Court Justices. Rather, the SCOTUS Justices will only be conferring over whether or not to even hear the case due to the technicality of “legal standing” issues. As SCOTUSblog.com reports, only the following are at issue:

  1. Whether the government can seek to moot a lawsuit challenging the constitutionality of a statute by adopting a new non-enforcement policy during the pendency of litigation;
  2. whether the government can later moot by voluntary cessation a subsequently filed lawsuit challenging the constitutionality of a statute under which the government publicly threatened a party with prosecution; and
  3. when a district court makes underlying findings of fact in the course of adjudicating a claim under the voluntary cessation doctrine, under what standard of review those findings should be examined on appeal.

Last year, on April 11, 2016, the United States Court of Appeals for the Tenth Circuit reversed the polygamy-positive decision of the lower court. A month later, on May 13, 2016, the same 10th Circuit Court refused the “en banc” request to re-hear the matter.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

On September 12, 2016, attorneys for the Brown family petitioned SCOTUS for a Writ of Certiorari.

On December 27, 2016, Utah Attorney General’s Office (UAGO) filed their reply in opposition, asking SCOTUS to deny the petition.

On January 3, 2017, Lead Attorney for the Browns, Jonathan Turley, filed their rebuttal to UAGO’s brief in opposition. Noting that the UAGO was simply wrong (namely, that there is a “split” among the different US Circuits on the technicality issue), the rebuttal reply – more than once – indicated that the case should be remanded (sent back down) to the Tenth Circuit Court, stating that these issues

require at the very least a remand with instructions to apply the appropriate standard (Page 10)

and

require (at the very least) a remand with instructions to apply the appropriate rules of law (Page 13).

That same day, January 3, 2017, the eventual date was determined on which the Justices of SCOTUS are scheduled to be “IN CONFERENCE” to determine whether or not to even hear the case: January 19, 2017.

It is ironic that this will be held on the very last full day that US President Barack Obama is President, the day before the incoming President Donald Trump is inaugurated. Years ago, back on November 7, 2008, only three days after Barack Obama was first elected, an article was sent to the media by Pro-Polygamy.com, the national polygamy movement’s media-distribution site, titled, “Obama’s Historic Election Gives Hope to Polygamous Americans.” With the caveat of specific political views aside, the article concluded with the following:

Now that African Americans have successfully traveled that amazing road from oppression to president, then consenting-adult polygamous Americans can do it too.

The dream continues. God bless America indeed!

Indeed, that article took note of the famous, important “content of character” line from Martin Luther King, Jr.’s “I Have a Dream” speech. It continued that line with the following, directly quoting me:

National Polygamy Advocate, Mark Henkel, has long shared Martin Luther King’s dream. Content of character is really what matters indeed. Henkel has said, “I have a dream that one day a man will be judged, not based on the number of consenting-adult wives who willingly marry him, but, indeed, based only on the content of his character.” For polygamous Americans, the dream continues.

That polygamy-version “I Have Dream” quote has been repeatedly cited over the past decade. It has even become a polygamy meme.

Yet now, on what will be the very last day of the presidency of the very first elected African American president, Barack Obama, January 19, 2017, unrelated consenting adult polygamous Americans are left with the disappointing reality that SCOTUS will only be conferring about whether or not to even hear the polygamy case of Brown v. Buhman.

On New Years Day this year, January 1, 2017, Pro-Polygamy.com, distributed another article to the media, titled, “Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?” The article ended with my direct quote, which succinctly sums up the frustrating “worry” that unrelated consenting adult polygamists (UCAP) now have regarding what SCOTUS could do (or rather, not do) with this important case.

“Will Brown v. Buhman be our Hollingsworth?”

What will the Supreme Court do after January 19, 2017? We can only wait.

PDFs of the formal filings & decision

  1. Turley Rebuttal Reply Brief for Brown v BuhmanPDF (Jan. 03, 2017)
  2. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  3. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)
  4. Tenth Circuit Court Reverses Brown v. BuhmanPDF (Apr. 11, 2016)

   
For background on the case, please see:

  –   Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?
  –   Utah AG Office opposes “Sister Wives” petition of Supreme Court
  –   “Sister Wives” Family Petitions the Supreme Court
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

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December 29th, 2016 by Mark Henkel

Will the Supreme Court of the United States (SCOTUS) even hear the arguments of the “Sister Wives” polygamy case, Brown v. Buhman, in 2017? If the Utah Attorney General’s Office gets its way, the answer would be a resounding, “NO!”

On April 11, 2016, the Tenth Circuit U.S. Court of Appeals in Denver Colorado reversed the lower court’s “de facto” polygamy de-criminalization decisions of 2013 and 2014.

On May 13, 2016, the same Tenth Circuit court denied the “en banc” request to re-hear the case.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

On August 10, 2016, Supreme Court Justice Sotomayor signed off on permitting the Brown family an additional month to file a petition for a Writ of Certiorari. On September 12, 2016, the Brown family’s attorneys filed their petition to be heard by the Supreme Court. Making the broader argument that the UAGO’s “voluntary cessation” as an after-the-fact “policy” to not go after the Brown family for polygamy (alone, with no other so-called “collateral crimes”) is a tyranny of “prosecutorial discretion,” the petition specifically posited that different Circuits have different standards for addressing the issue of such “voluntary cessation” doctrine.

In November, 2016, SCOTUS requested that the Utah Attorney General’s Office file their rationale for why they believe that SCOTUS should deny the petition. On December 27, 2016, the UAGO filed their formal brief in opposition. Therewith, the UAGO posited that there allegedly “is no split” between the differing U.S. Circuits around the country on the issue of voluntary cessation doctrine.

On Page 25 (i.e., PDF-pg35) of the brief, the Utah AG Office declared the following about the Petitioners (i.e., the Brown family) and “why” SCOTUS should “not” even hear the case.

For all their errors on the voluntary cessation question, Petitioners nail the most important score: They are, at best, “persons formerly threatened with prosecution under” the Statute. Id. at 21 (emphasis added). They face no current or continuing threat that Respondent will prosecute them in Utah, away from their new Nevada home. The case is moot for the reasons the Tenth Circuit correctly explained, based on legal rules that do not conflict with other circuits’ precedent. Certiorari should be denied.

The saddest irony of all this may also be found within the very words of the brief itself. On its Page 4 (i.e., PDF-pg14), the UAGO admitted the following about how evidently unnecessary the anti-polygamy law actually is.

Given that enforcement policy, just ten defendants were charged statewide under the Statute between 2001 and 2011. App. 10. Six of those ten “were also prosecuted for crimes other than bigamy, such as criminal non-support, unlawful sexual conduct with a minor, forcible sexual abuse, marriage license fraud, and insurance fraud.” Id. at 11. The Attorney General’s Office could not confirm whether charges besides bigamy were filed in the last four cases. But in three of those four, county prosecutors dismissed the bigamy charges, and in the fourth case the defendant was convicted of attempted bigamy in a county prosecution.

In the very next paragraph, the UAGO then made the wildly absurd assertion, citing the case of the always-despised Tom Green criminal and the long-discredited anti-polygamy propaganda given to the British Columbia Supreme Court’s Chief Justice Robert Bauman. Despite their previous admission disproving its next assertion, the UAGO’s brief unflinchingly still posited the following self-admittedly disproven propaganda.

“The practice of polygamy, in particular, often coincides with crimes targeting women and children.”

“Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support.”

If anything, by the Utah AG Office’s own admission, the evidence disproves that wild absurdity. Indeed, it demonstrates why still criminalizing unrelated consenting adult polygamy (UCAP) is wholly irrational.

However, SCOTUS could very well choose to deny the Brown family’s petition for a Writ of Certiorari. If that happens, then, alas, such an irrational anti-polygamy law still will remain on the books. And worse, the actual merits of Brown v. Buhman will not have even been heard by the Supreme Court.

As the year 2016 comes to a close, both sides are waiting to see whether SCOTUS will deny or allow the Brown v. Buhman case to go forward in 2017.

PDFs of the two formal filings

  1. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  2. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)

   
For background on the case, please see:
  –   “Sister Wives” Family Petitions the Supreme Court
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

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September 14th, 2016 by Mark Henkel

On September 12, 2016, attorneys for the polygamous family of reality-TV series, “Sister Wives,” filed the formal Petition for a Writ of Certiorari (PDF), asking the Supreme Court of the United States (SCOTUS) to hear the Brown v. Buhman case, as announced by the family’s renowned attorney, Jonathan Turley.

As FOX 13 reported, “The petition, filed Monday, basically focuses on whether the Browns really faced a threat of prosecution from Utah County Attorney Jeff Buhman.”

In the Fall of 2010, the TLC network began airing a new reality-TV show, “Sister Wives.” As later re-explained by the newly filed Petition for a Writ of Certiorari,

“The day after the first episode aired, Utah state officials publicly denounced the Brown family as criminals and opened an investigation under the state’s anti-bigamy statute, which – unlike that of other states – prohibits not only the practice of polygamy, but also the mere practice of cohabitation by married persons. …Prosecutors later gave public interviews discussing the Brown family and their alleged crime of polygamy. …The Respondent, through his subordinate, publicly accused the Brown family of committing felonies every night on television and stated that ‘The Sister Wives’ television program would make their prosecution ‘easier.'”

As a formal “investigation” was initiated against them, the Browns fled Utah and moved to Nevada. Attorney Jonathan Turley filed the case, now identified as Brown v. Buhman, on July 13, 2011, asserting that Utah’s anti-bigamy law was unconstitutional. Prosecutors said the family’s emigration to another State would not stop their investigation to prosecute the Browns for polygamy in Utah, even as the Prosecutors filed a motion to get the case dismissed in early 2012.

After that motion was denied, the Prosecutors “conveniently” invented/declared a new “UCAO policy.” This new and deliberately non-binding policy proclaimed that the Utah County Attorney’s Office would no longer prosecute the Browns or other unrelated consenting adult polygamous families formed only on religious beliefs. With that new “UCAO policy,” the prosecutors filed yet another motion to dismiss the Brown v. Buhman case on May 31, 2012. As the Petition for a Writ of Certiorari explains to the Supreme Court,

“The district court again denied the motion, citing this Court’s instruction that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’ …and that any assertion to the contrary faces the ‘heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.’ …In this case, the district court noted that the government had not abandoned its constitutional defense of the [anti-bigamy] statute, …and that its new prosecution policy was ‘at most, an exercise of prosecutorial discretion that could be reversed at any time.'”

Indeed, the permissiveness of allowing this tyranny of prosecutorial discretion is the central basis by which the Tenth Circuit Appeals Court reversed all parts of the lower District Court decision. Namely, while the lower court had de-criminalized “de facto” polygamy (12/13/2013) and awarded damages to the Brown family for Utah violating their rights (8/27/2014), all of that was wiped out by the Tenth Circuit Court’s reversal.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

Jonathan Turley and his team of attorneys clearly had to focus and organize the Brown’s Petition for a Writ of Certiorari around the central issue of the Tenth Circuit’s reversal per this tyranny of prosecutorial discretion.

Opening its reasons for the petition to (hopefully) be granted by SCOTUS, the Petition for a Writ of Certiorari explains,

The courts of appeals are squarely divided over the extent to which the voluntary cessation doctrine permits the government to moot a constitutional challenge by changing its enforcement policy during the pendency of litigation, as well as whether a district court’s factual findings under the doctrine should be reviewed de novo or for clear error or abuse of discretion.

Essentially, the petition observes that among the separate federal Circuits (of Appeals courts), some have more permissive tests and standards of review regarding the “voluntary cessation doctrine” than others. This disparity among the Circuits creates a non-uniformity of the treatment of law around the country, whereas uniformity of “equal treatment under the law” is Constitutionally required.

Hence, in a different Circuit Court of Appeals (i.e., not the Tenth Circuit), in one that uses a less permissive test and standard of review regarding the “voluntary cessation doctrine,” the after-the-fact “UCAO policy” would not have been allowed to be applied to so-artificially moot the standing of the Brown family to thereby permissively reverse the lower court decisions of the Brown v. Buhman case.

Requesting that the Supreme Court use the Brown v. Buhman case as the vehicle to decide and establish that uniformity (once and for all) defines the technical premise of the Petition for a Writ of Certiorari. That is to say, the petition was not so much about polygamy itself, but about addressing the wrongness of the case being reversed due to the tyranny of such “convenient” exploitation of prosecutorial discretion, being identified as “voluntary cessation doctrine.”

So that, then, raises the question: will the actual merits of the case even be heard by the Supreme Court?

If SCOTUS decides that the conclusions made in the Brown family’s petition are valid, that type of decision will reverse the Tenth Circuit’s reversal, bringing the status of the case back to the prior positive results from the District Court decisions. Will SCOTUS then let that status stand as it was, or will they actually have a hearing of the actual merits of the case?

If SCOTUS rather-lazily refuses to even consider the case, the result will not only deny Brown v. Buhman from even achieving anything at all in the fight for rights and freedom for unrelated consenting adult polygamy, but it will also maintain the unconstitutional non-uniformity among the differing federal Circuit Appeals Courts too.

If SCOTUS actually affirms and establishes the Tenth Circuit’s rather permissive test and standard of review regarding the “voluntary cessation doctrine” to become the nationwide uniform application, the Brown v. Buhman case will effectively be finished, fully depriving unrelated consenting adult polygamists of the valid right to fight against provably unconstitutional law.

Whether or not one supports polygamy, anything but the first of those three possibilities will, undoubtedly, present a profound threat to the liberty of all citizens of the United States. Ergo, this “polygamy case” before the Court now has far broader impact than when it began.

As of this writing, what happens next is up to the Supreme Court of the United States.

   
For background on the case, please see:
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

sister-wives-petition-supreme-court

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August 28th, 2015 by admin

Fifty-two years ago, on August 28, 1963, Martin Luther King Jr. (MLK) gave his iconic speech, “I Have a Dream.” Therein, he set forth the profound standard for which he dreamed, that a person “will not be judged by the color of their skin but by the content of their character.”

That standard – that people should only be judged based on the content of their character – applies beyond the issues of race.

In 2008, the United States elected our first African American President. Beyond disagreements of political views, the historical significance was not lost on unrelated consenting adult polygamists (UCAPs) at all. An op-ed was sent to the media explaining how – politics aside – that Historic Election Gave Hope to Polygamous Americans.

The article included the following statement and quote.

National Polygamy Advocate, Mark Henkel, has long shared Martin Luther King’s dream. Content of character is really what matters indeed. Henkel has said, “I have a dream that one day a man will be judged, not based on the number of consenting-adult wives who willingly marry him, but, indeed, based only on the content of his character.” For polygamous Americans, the dream continues.

When America was celebrating the 50-year anniversary of MLK’s speech on August 28, 2013, a meme-pic was created to reflect how UCAPs view it too. It included the above quote.

thedreamcontinues3
This meme-pic is available to share on PINTETREST: The Dream Continues…

Undoubtedly, even 52 years later, for families and supporters of unrelated consenting adult polygamy, the dream continues…

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