Browns v Utah – in court today

Today, Kody Brown, the polygamist at the centre of reality TV’s ‘Sister Wives’, has at least part of his day in court, as he seeks to prevent his case against some of Utah’s key prosecutors being thrown out. The prosecutors are trying to say Mr Brown doesn’t have ‘standing’, as no-one has been prosecuted for polygamy alone in 50 years in Utah, except that the Associated Press did a quick search and found a couple that the prosecutors appeared to have missed. More here.
Oral arguments will be heard today, but it is not yet clear when Judge Waddoups will issue any ruling.

See comment from the Brown’s lawyer, Professor Jonathan Turley here, and his specific submission that they are not asking for Utah to breach its Enabling Act (whereby it was only able to become a State on condition that polygamy would always be prohibited) here.

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Oh Canada!, where Polygamy is only legal for kids

In a shock judgement that is out of line with decades of legal opinion on the subject, British Columbia’s Chief Justice Robert Baumann today ruled that Canada’s polygamy ban was constitutional, except for under-18’s. While the judgement is puzzling on many levels, the restriction of legal polygamy to kids is a way of offering an effective amnesty to any under-18s wishing to leave such marriages. While it effectively allows under-18s to engage in polygamy, continuing to do so beyond the age of 18 would leave them in technical breach of the law.

As with many human rights cases, this smacks of a judge creating the law, rather than interpreting it, and an initial look at the judgement has revealed a number of errors – for example, the United Kingdom banned bigamy in 1604, not polygamy, and later case law, including the famous case of Hyde v Hyde and Woodmansee makes this clear. The judgement (see here) is however very long and detailed, as befits a case of this length and importance, so a full analysis will take some time. In the meantime it is likely that the case’s next stop will bethe Supreme Court of Canada.

Other Coverage
National Post

Vancouver Sun

Salt Lake Tribune

The Globe and Mail including pdf text of the judgement.

CBC News Canada

Winnipeg Free Press, with speculation on the likelihood of prosecutions beginning in British Columbia

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Polygamy more popular than U.S. Congress

One poll has Congress’s approval rate at 9% of the U.S. population, another has 11% saying polygamy is morally acceptable. More here.

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Remember, Remember, 23rd November

Next Wednesday is set to be a big day in B.C. as the Supreme Court of the Canadian Province rules on whether the Canadian Criminal Code provision against polygamy is a breach of the Charter of Rights and Freedoms.

This is no small case, with direct impact across Canada, an almost certain appeal coming to the Supreme Court of Canada whatever the result, on top of 42 days of courtroom clashes in just the last and most significant round of this case.

What will Bauman do? Chief Justice Robert Bauman, that is, who reserved judgement after the marathon trial, and whose court has arranged a lock-in for reporters ahead of the judgement being released on the B.C. Supreme Court website.

He has three main options – Back the polygamy ban, rule it unconstitutional, or say that the polygamy ban could only be treated used in cases that were abusive, leaving everyone else free to practice polygamy if they wished. It is possible that he may yet come up with a secret fourth option that no-one anticipates. For years a succession of lawyers have believed that the polygamy ban would not survive a Charter challenge.

Meanwhile tension has been raised by the carbon-copy ‘Sister Wives’ case of Brown v Utah, the Darger’s “Three in Love” book tour, and on the other side of the equation by the conviction of child abuser Warren Jeffs, and related investigations by the Mounties, which mysteriously surfaced at just the right time to apply maximum pressure on the Court’s ruling.

See more at the Province online.

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Freedom in Libya means… legal polygamy!

The international feminist sisterhood has been getting its knickers in a twist this week after Libya’s new acting President Mustufa Abdul-Jalil, used his Liberation Day speech to back the reintroduction of Sharia law and the removal of Ghadafi-era restrictions on polygamy.

While this legal development isn’t wholly surprising in an overtly Muslim country, it has created a reality check for the Coalition of nations who helped Libyans to topple Ghadafi, as the Governments of a number of those countries have policies that are opposed to polygamy, even when their laws may be more tolerant.

This plays against the background of the deaths of perhaps 50,000 men in the war of liberation, and the consequent increase in widows and orphans, which neatly matches the Koran’s basis for implementing polygamy in Islam in the first place. Polygamy is the historic societal mechanism that stands ready to handle this sort of problem, an acknowledgement that the family is the first welfare state, and for many still preferable to the version preferred by Big Government.

What should Libya do – implement the historic beliefs and freedoms of the people, or saddle themselves with a Socialist welfare system that even developed countries struggle to afford?

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Say what, how many husbands in the Brown family?

Let’s hope that Judge Waddoups is not completely new to the whole “Sister Wives” business, because if he goes off the paperwork submitted by the Brown clan and lawyer Jonathan Turley on Monday, he will be led to believe that both Kody and Janelle are ‘the husband’ in this plural family. While some junior lawyer gets a slap on the wrist for this cut-and-paste howler, it does suggest that Janelle Brown could have paid a bit more attention to the statement she was signing. The Browns are ‘alternative’, but they are not that alternative!

Kody, Meri and Janelle have all filed affidavits in support of their case to prevent Utah officials from prosecuting them for polygamy, and in response to the officials’ attempt to get the case thrown out as they probably weren’t really going to prosecute them anyway. Consequently the Brown’s job is to emphasise the fear of police intervention they feel, and the impact of various officials labelling them as criminals anywhere but in a court.

So we get tales of panic whenever a police cruiser passes the house, the cost of fleeing Utah, losses of sales and employment following public identification as ‘presumptive offenders’, etc. I’m not belittling this – far from it – I’m sure that the labelling has many distressing effects – it just strikes me as bizarre that you need to go to such lengths to prove the impact of the state criminalising your lifestyle, so that it is bad enough for the court to bother dusting off the Constitution to check whether that’s OK. Is it not enough that the law is unconstitutional – is it not undignified for the state to run the argument that ‘it doesn’t matter if the law breaks the law, for we will defend our unlawful law by never using it against anyone likely to win’ – the ‘we will only kick you when you’re down’ approach?

Anyway, for more, see….
Associated Press
Washington Post
CBS news

Kody Brown’s affidavit
Meri Brown’s affidavit
Janelle Brown’s affidavit

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Sister Wives Defend Polygamy

In a preview of Sunday’s episode of Sister Wives, the Brown family wives are seen in conversation with other women about how polygamy works in their case. See it here.

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