Instead this is a google spreadsheet copy for everyone out there without PACER access, but I update it manually so it will not be as up to date as the official docket.
Coverage of a case I missed in the 10th Circuit
The ruling is in. The prohibition has been upheld as a reduction of harm measure against the changes of impingement on religious freedom. The fundamental basis for the ruling seems to be that the Judge found polygamy to be harmful in and of itself and much of the ruling is based on that finding of fact.
So what does this mean for Brown? Not a whole lot really. While international law has been gaining some influence on American courts, it is not a central part of the analysis. The finding of fact on polygamy might be something the courts cite to because it is an issue of fact and not law, but because it is an issue of fact the finding will not hold a position of greater validity in the American court system than any other will researched finding by a respected investigator. It is, none the less, disheartening to have this finding in the background of any future polyamory cases.
The other thing is that this case is something that couldn’t happen under US law, it would fail the standing test that is currently at issue in the Brown case, not that this is a reason it can be looked at, but it does make it harder for American courts to understand and inapplicable to the current issues in the Brown case.
The part of the case most analogous to the Laurance issue in Brown is Section C on Freedom of Association (Yes, this is in the American Constitution too, but the legal systems have evolved and treat these very differently). The arguments are not directly like the privacy based arguments from Laurance, but are similar to the arguments likely to be made in a polyamory case. The Judge found that association did not protect the activities associated with marriage. I don’t know enough about Canadian law to evaluate this section, but it seems like protection simply was not extended to marriage like activities.
Another interesting section is Section D which is about other legal principals such as arbitrariness and consent that do not seem that differently applied between the legal systems. They are all struck down using the finding of fact, that polygamous marriages are inherently harmful and cause social harm, as the sword.
So this reference case is not good for polyamorous people living the US, but its impact might be limited because the case as a whole is a poor analogy to US law and the
There has been more action in the Brown case with a new document, an updated hearing date and a response to the argument against the motion to dismiss for lack of standing.
You can see all the action on the docket link.
The hearing has been moved to 9:00 in the morning of 12/16 (the same date) and the Judge has asked for evidence to be presented as to the nature of the investigation against the Browns since that is the factual basis for their standing argument. No one in the community has thus far said they will be able to attend and a hearing like this with fact finding could be the only courtroom action in the case.
Please! If you can attend or know someone who might be able to attend it would be really awesome to have someone there to take notes! You don’t have to be an expert, it would just be really good to know what went on.
In other news the Judge wants to know why the US Government shouldn’t be joined to the defense in this case because of its interest in having the states uphold their laws. I will let you know if we see any motion argument in this, but it might all go down in the hearing. This might be an attempt by the Judge to get better representation for the defense by bringing in a US attorney to make the defense case.
In other news there is a response to arguments the Browns attorneys made against the motion to dismiss for lack of standing. The argument basically boils down to
There were two separate investigations and you don’t know what the second one was about, and we an not telling you. We are not going to say it wasn’t about polygamy, but you are just assuming that and why would we investigate you for that anyway when you went and admitted to it?
Feel free to read it yourself, but honestly that is the argument. I personally don’t think it overcomes the point made by the Brown’s argument that if they want to destroy standing all the governmental defendants have to do is say on the record that they won’t file charges, but that will be up to the judge.
If the whole thing seems a little playground to you (Suzie was Talking to Johnny about me behind my back, You don’t know what I was talking to Johnny about, Well tell the teacher it wasn’t me, Nah Uh you prove to teacher we were talking bout you) you are not the only one.
I seriously doubt anyone suspects the investigations were about anything else, but that is the argument the governmental defendants are making and they are not reveling the actual nature of the investigation, which is normal in criminal investigations. They also claim the statue is moribund and not enforced absent other criminal charges. This is a better and more difficult argument to overcome.
The response for the motion to dismiss was filed yesterday (PDF link). The argument is a technical one about timing and a substantive one about the nature of the communications between the defendants and the media concerning the lawfulness of the Brown’s family.
The technical argument is about timing. There is a 21 day period to file a motion to dismiss. This was not filed in that window, but there is a complication because the plaintiffs agreed to the extension, however, it appears that the defendants, who as the asking party had the responsibility, failed to file the request for the extension with the court. If true this is a serious problem and the requests and orders do not show up on the electronic docket.
The substantive argument is about standing and the threat of prosecution. This argument starts on page six of the PDF and is worth reading. The gravaman of the argument is that while no charges have been filed the investigation and threat of charges have caused actual substantive harm as required for standing. The memo also points out that the motion to dismiss does not offer any promise not to charge the Brown family under the laws they are trying to challange.
The motion is supported by affidavits and I am just going to attach these because I have not read them fully yet. They are all PDFs.
Bonus gossipy bit- I notice Robin has not legally changed her last name to Brown, or at least she doesn’t show up in the filings as Robin Brown.
On 9/2/2011 there was a motion to dismiss for lack of standing filed by the state of Utah parties.
The conclusion of the memo is
Plaintiffs in this case have not shown that these Defendants have subjected them, or caused them to be subjected to, a deprivation of their constitutional rights. Plaintiffs have thus not shown the second element for injury-in-fact -causation – and have not established standing or a justiciable cause of action.
This is the first of a series where I take a situation and write out what I consider in that situation and how I would probably react.
The Scenario: Sue is visiting her sweetheart Robin who lives with a long term partner named Jan. They are getting ready to go somewhere together for the first time in Robin’s car. Robin is driving, who sits where?
If I were Sue- I would go for the backseat, the last thing I want to do is take the seat Jan is used to. I want to be sure not to literally unseat her. It is a small way to show respect for their relationship. However if I were going to actually resent sitting in the back I would ask if I could sit in the front, that way I am letting my desire be known but in a way that still respects Jan’s prior claim.
If I were Jan- I would offer Sue the frontseat. I would say something like “You spend so much time apart, you should spend as much of this time as you can closer”, BUT I would only do so if I were going to be happy about being able to be gracious and not resent Sue for accepting. Otherwise I would ask “Do you mind if I sit in front?” Including Sue in my desire and giving her the chance to object.
If I were Sue and Jan offered- I would accept and thank her, sometimes letting other people do even small things to support your relationship is a great way to make you both feel good about that relationship.