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Friday, December 13, 2013

Federal Judge Clark Waddoups Rules Utah Polygamy Law ALMOST Unconstitutional

Author's note: Judge Waddoups and his family have been dear friends of me and my wife for over twenty years. The novel Daddy's Little Felons was written about our now-deceased mutual friend Judge Pat Brian. My wife and I had the Waddoups over to the house for dinner in late September, and I knew that the ruling on The Sister Wives case was about to make some history. The judge couldn't talk at all about the case, but I could tell he was excited about the upcoming ruling. I think my old friend made some history with this one.
My friend Clark Waddoups, who I have reported is the most brilliant cyberlaw jurist on the planet (as he whacked 1800CONTACTS in their lawsuit which was then upheld by the appeals court as they tried to take over commerce on the Internet-see the story here), has just made some history with his ruling on the Sister Wives television show case. Once he filed the ruling, Clark sent me a copy, which I posted on my personal website (see it here). I'll have you know that I spent the evening reading it, and avoiding going to my regular Friday night movie or even watching television. This was hands down the most entertaining evening I've had in ages. To help you gird up your loins to dissect the 91-page document (which I think will become required reading in every law school in the country, not to mention advanced degree programs in history and sociology), let me give you some net nets:

  1. The Utah statute on polygamy was ruled unconstitutional and yet miraculously upheld. How could that be?
  2. Simply, Judge Waddoups upheld the ban against legal recognition of polygamous marriage but did not uphold the criminalizing of polygamous behavior
  3. Since Kody Brown and the "Sister Wives" did not purport to have a legalized polygamous marriage, Judge Waddoups awarded them a summary judgment and rejected the state's summary judgment arguments.
  4. Judge Waddoups got off a couple of knee-slappingly funny characterizations of the state's competence with such lines as (p3) "The court was intrigued by the sheer lack of response in Defendant's filing to Plaintiffs' seven detailed constitutional claims." Or how about…
  5. The state wanted to get out of this so badly that (p7) "…the Defendant filed a Motion to Dismiss…and confirmed that the long investigation of the Brown[s] has been closed shortly before the planned summary judgement motions."
  6. In the footnote on page 10, Waddoups gets off another zinger against the state: "The court is not impressed with Defendant's characterization of Plaintiffs' serious and substantial legal arguments in support of each of their Constitutional claims…"
  7. Judge Waddoups took great pains to accentuate the incompetence of Assistant Attorney General Jerrold S. Jensen on pages 59-62 of his ruling when he recounted his dialogue with Mr. Jensen as he went down a list of scenarios, trying to understand Mr. Jensen's logic. Like I say, this should be required reading even at the high school level.
Never have I seen a more compelling and thoroughly reasoned history of not only Mormon polygamy, but (p11) of "the white man's burden—the idea that the civilized white Europeans had a duty to exercise firm but beneficient tutelage over what they regarded as the less advanced, child-like, dark-skinned races and guide them toward civilization." In other words, the reasoning against polygamy was inspired by racism of the most vile nature. Like I say, what a history lesson!

The fine line walked by Judge Waddoups can only be appreciated by another Mormon. Just like Judge Waddoups, my wife has polygamous Utah ancestors. It took some real guts for the judge to swallow hard and uphold the state constitution and federally mandated conditions for Utah to achieve statehood and, at the same time, recognize the reality of modern-day morality. The only nod to the inequity of the Utah law, which he grudgingly upheld, is his footnote on page 84:
"In particular, delegation of part of the amending process of a state constitution to the federal government raises the question of whether the state [of Utah] has been admitted into the Union on an equal footing with sister states." John J. Flynn, Federalism and Viable State Government—The History of Utah's Constitution, 1966 UTAH L. REV. 311, 323 n.89. (citing Coyle v. Smith, 221 U.S. 559 (1911).
Quoting a line from the Movie Top Gun, "Maverick, that's the gutsiest move I've ever seen." Et tu, Your honor!

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Implementation suggestions for THE MORGAN DOCTRINE are most welcome. What are the "Got'chas!"? What questions would some future Cyber Privateering Czar have to answer about this in a Senate confirmation hearing?