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