Andrew McCullough's Blog

Friday, December 20, 2013

What a Wild Ride

December 20, 2013

December 2013 has brought such changes to the legal landscape, in Utah and elsewhere, it leaves me almost breathless. Several years ago, an independent polygamist named Tom green was arrested, prosecuted and convicted of bigamy. Tom did not do anything more than many others had done without arrest, except that he refused to be quiet. An overzealous small town prosecutor went after him and won; and Tom went to prison,. The prosecutor was rewarded by defeat for re-election. My firm filed a "friend of the court" brief in Tom's support, claiming that Tom and his wives were protected by guarantees of freedom of religion and freedom of speech,. The Utah Supreme Court ruled against us.

More recently, Cody Brown and his three wives, living in my hometown of Lehi, starred in a reality show. They were not arrested, though they were actively investigated by the Utah County Attorney, making them very nervous. They sued the State in Federal Court, once again claiming that they were protected by constitutional guarantees of free speech and freedom of religion. a couple of weeks ago, the Federal Court ruled in their favor. The Judge (a law school classmate of mine) did not formally legalize plural marriage in Utah. He simply pointed out that, in the Twenty-first century, people do live together without being married in the eyes of the State. The fact that these people all each other husband or wife does not prohibit them from living as they please. Only if they wrongfully obtained multiple formal marriage licenses will they be subject to prosecution. It is a decision that is very much in line with common sense. Needless to say, however, there are those who have been very upset about this decision, saying it sends the state back to the dark ages of polygamy, They also claim that it gives comfort to those polygamists who abuse children and commit welfare fraud to support their large families. The decision does not do those things, but certainly, some see it as an attack on "traditional marriage." So, there has been a lot of discussion of it, and a lot of criticism.

Well, today the roof really fell in on the advocates of "traditional marriage". another Federal Judge invalidated the Utah law, and a State constitutional Amendment prohibiting same sex marriage. The lawsuit, brought by three same sex couples, claimed that recent Supreme Court decisions, as well as a decision by the Ninth Circuit Court of Appeals, made Utah's ban on the practice unconstitutional,. The Court agreed. Sometimes a court making such a momentous decision, will delay implementation of the ruling until the state considers and appeal and attempts to obtain a stay of the ruling. This decision did not do that, and was effective immediately, by its terms. County clerks in four counties started issuing marriage licenses within hours, and marriages have taken place. The temporary Attorney General is seeking an emergency stay, but it is not likely to be heard until after many more marriages are performed, Wow! The internet was ablaze with the news today, and I pretty much lost my ability to get any meaningful work done at the office.

Meanwhile, our elected Attorney General has resigned, and new information of his possible wrongdoing is released daily. The temporary Attorney General is faced with multiple crises; and he does not know if he will still be in office next week. Three Republicans picked by their party, are vying to be appointed for a year until the next general election. They all support appeals of these earth-shaking decisions; and the litigation is likely to go on and become ever more expensive. Personally, of course, I am thrilled by both of these Court decisions. The State has interfered with out personal relations for too long. If I were Attorney General, I would do my best within my authority, to end the appeals and to allow the rulings to be implemented.


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