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Pro-Polygamists NOT 'Excited' about Supreme Court Decisions

     By: Mark Henkel
Date: Aug 09, 2013
Word Count: 2500 words
Cross-Reference: Hollingsworth v. Perry, United States v. Windsor, Supreme Court

AUTHOR: Mark Henkel  
Mark Henkel is both the National Polygamy Advocate for the overall National Polygamy Rights Movement for Consenting Adults and the Founder of the organization, the non-Mormon, cross-denominational, Christian polygamy rights organization. He has been interviewed and reported by numerous major media in the United States, including FOX Business Network's "Stossel," ABC's "20/20," NBC's "TODAY Show," CourtTV (TruTV), 700 Club, Newsweek, Associated Press, Washington Times, and many more as noted at 
He is also a professional speaker who has given numerous speeches before non-polygamous audiences, including a Keynote Speech at Yale. 
FMI, see  
Pro-Polygamists NOT 'Excited' about Supreme Court Decisions  
. . . . . . . . . by  
. . . . . . . . . . . . . . Mark Henkel  
Copyright (C) 2013 ALL RIGHTS RESERVED 

On June 26, 2013, the US Supreme Court decided two same sex marriage cases, Hollingsworth v. Perry and United States v. Windsor. Contrary to uninformed manufactured-news outlets, pro-polygamists are not 'excited' about the decisions.

Ten   years   ago,   back   on   June   26,   2003,   the   Supreme   Court   of   the   United   States   (SCOTUS)   overturned   state   sodomy   laws   with   its   Lawrence   v.   Texas   decision,   setting   the   precedent   against   government   intrusion   on   the   privacy   of   individuals.   Not   only   did   that   precedent   have   application   to   privacy   issues   regarding   consenting   adults   choosing   same   sex   marriage,   but   it   equally   can   apply   to   the   privacy   of   individuals   choosing   unrelated   consenting   adult   polygamy.     In   an   unexpected   yet   interesting   irony,   exactly   ten   years   afterward,   on   June   26,   2013,   SCOTUS   provided   two   more   decisions   concerning   such   marriage   issues   too.     But   they   were   not   as   applicable   to   polygamy   as   some   would   attempt   to   suggest. 
In   Hollingsworth   v.   Perry,   SCOTUS   vacated   the   decision   of   a   lower   federal   court,   set   a   high   bar   for   legal   "standing"   for   private   parties   in   federal   court,   and   thereby   chose   not   to   decide   the   case   on   any   of   the   merits.     In   United   States   v.   Windsor,   SCOTUS   overturned   §3   of   the   "Defense   of   Marriage   Act"   (DOMA),   kept   other   parts   of   the   law   as   valid,   and   determined   that   the   federal   government   must   recognize   whatever   legal   form   of   marriage   that   each   State   chooses   to   legalize   in   each   respective   State.     Oddly   enough,   both   cases   involved   government   officials   who   were   openly   unwilling   to   defend   their   side   (because   they   supported   the   "opposing"   party).     SCOTUS   responded   to   that   odd   similarity   very   differently   between   the   two   cases. 
Within   days   after   the   decisions,   some   manufactured-news   outlets   were   "reporting"   that   supposedly   "polygamists"   were   "excited"   about   these   two   court   decisions.     That   is   simply   not   the   case.     Neither   of   these   two   latest   SCOTUS   decisions   offers   much   about   which   polygamists   can   be   excited   at   all. 
Indeed,   to   say   that   the   National   Polygamy   Rights   Movement   for   Consenting   Adults   is   not   excited   about   these   two   decisions   is   an   understatement.   To   both   demonstrate   and   explain   why   that   is   so,   this   special   report   will   provide   the   details   of   the   Hollingsworth   v.   Perry   case,   provide   the   details   of   the   United   States   v.   Windsor   case,   and   then   describe   how   these   two   Supreme   Court   decisions   affect   polygamy.     In   the   end,   it   will   be   clear:   nationwide,   these   decisions   are   currently   useless   for   polygamists. 
In   May,   2008,   California's   State   Supreme   Court   determined   that   California   law,   banning   same   sex   marriage,   violated   the   equal   protection   guarantee   of   Article   I,   Section   7   of   the   California   State   Constitution.     Thereby,   that   court   ordered   all   counties   in   California   to   issue   marriage   licenses   to   same   sex   couples   who   request   them.   Same   sex   marriage   was   legalized   in   California. 
Opponents   responded   immediately,   putting   a   petition   up   for   public   referendum   to   amend   California's   State   Constitution   with   Proposition   8.   The   proposed   Amendment   was   worded   as   follows:   "Only   marriage   between   a   man   and   a   woman   is   valid   or   recognized   in   California."     During   the   campaigns   leading   up   to   the   public   vote   on   Proposition   8,   from   June   through   November,   2008,   California   counties   had   issued   18,000   same   sex   marriage   licenses.     That   November,   however,   voters   approved   Proposition   8   with   a   majoritarian   collectivism   of   52%.     Same   sex   marriage   was   once   again   not   legalized   in   California. 
On   May   22,   2009,   same   sex   couples   responded   by   filing   suit   against   the   California   State   officials,   as   the   case   of   Perry   v.   Schwarzenegger.     The   Plaintiffs   claimed   that   Proposition   8   was   unconstitutional   based   on   the   Due   Process   and   Equal   Protection   clauses   of   the   Fourteenth   Amendment   of   the   U.S.   Constitution.       The   named   supposed-to-be   Defendants   in   the   case   -   those   government   officials   whose   job-duties   comprise   that   of   enforcing   the   State's   marriage   laws   -   actually   agreed   with   the   Plaintiffs.     All   but   one   refused   to   defend   the   constitutionality   of   Proposition   8   even   though   it   was   the   state's   law   of   the   land   at   the   time   and   even   though   it   was   their   official   duties   to   defend   current   law.     Only   the   attorney   general   still   chose   to   do   his   job   as   a   named   Defendant,   notwithstanding   the   fact   that   he,   too,   openly   conceded   that   he   viewed   Proposition   8   as   unconstitutional.     Consequently,   the   original   petition   organizers   of   Proposition   8   were   authorized   with   legal   "standing"   to   step   in   as   Defendant-Intervenors   to   join   the   unsympathetic   attorney   general.     On   August   4,   2010,   U.S.   District   Chief   Judge,   Vaughn   R.   Walker   -   accepting   the   Plaintiffs'   arguments   -   overturned   Proposition   8.   In   that   District   Court   decision,   Judge   Walker   determined   that   marriage   is   a   "fundamental   right"   of   the   individual   and,   as   he   declared,   "That   the   majority   of   California   voters   supported   Proposition   8   is   irrelevant,   as   'fundamental   rights   may   not   be   submitted   to   [a]   vote;   they   depend   on   the   outcome   of   no   elections.'"     He   then   enjoined   the   public   officials   named   as   Defendants   from   enforcing   Proposition   8.     Same   sex   marriage   was   yet   again   legalized   in   California. 
To   no   one's   surprise,   those   public   officials   –   the   same   ones   who   had   refused   to   defend   the   case   anyway   –   chose   not   to   appeal.     However,   the   original   petitioners   of   Proposition   8   did   so   instead,   as   the   appeals   case   of   Hollingsworth   v.   Perry.     The   federal   Ninth   Circuit   court   asked   the   California   State   Supreme   Court   whether   official   petitioners   of   a   ballot   referendum   have   authority   to   assert   the   State's   obligated   interest   in   defending   the   constitutionality   of   the   passed-referendum   when   public   officials   refuse   to   do   so.     After   the   state   court   affirmed   that   they   do   have   such   authority,   the   federal   court   thus   concluded   that   the   petitioners   did   have   legal   "standing"   to   defend   the   constitutionality   of   Proposition   8   in   federal   court.     Even   after   all   that,   the   Ninth   Circuit   federal   court   nevertheless   still   affirmed   the   District   Court's   decision   and   order   anyway   –   and   it   did   so   on   the   merits. 
The   Petitioners   then   appealed   up   to   the   Supreme   Court   of   the   United   States   (SCOTUS).     But   SCOTUS   did   not   decide   the   case   on   the   merits.     Rather   than   address   any   of   the   arguments   presented   before   them,   SCOTUS   ignored   those   merits   and   simply   determined   that   the   Petitioners   did   not   have   legal   "standing"   in   federal   court. 
Concluding   the   Supreme   Court's   5-4   decision,   Chief   Justice   Roberts   declared,   "We   have   never   before   upheld   the   standing   of   a   private   party   to   defend   the   constitutionality   of   a   state   statute   when   state   officials   have   chosen   not   to.   We   decline   to   do   so   for   the   first   time   here." 
Roberts   continued,   "Because   petitioners   have   not   satisfied   their   burden   to   demonstrate   standing   to   appeal   the   judgment   of   the   District   Court,   the   Ninth   Circuit   was   without   jurisdiction   to   consider   the   appeal.   The   judgment   of   the   Ninth   Circuit   is   vacated,   and   the   case   is   remanded   with   instructions   to   dismiss   the   appeal   for   lack   of   jurisdiction." 
Effectively,   the   Hollingsworth   v.   Perry   case   of   appeal   by   the   Petitioners   was   rendered   as   being   disallowed   to   have   even   occurred.     Where   the   Petitioners   were   allowed   "standing"   as   Defendant-Intervenors   to   join   the   unsympathetic   named   Defendant   (i.e.,   the   attorney   general)   in   the   preceding   Perry   v.   Schwarzenegger   case,   they   were   not   allowed   to   be   the   exclusive   Plaintiffs   in   their   subsequent   Hollingsworth   v.   Perry   appeal.     While   a   State   may   allow   such   "standing"   in   State   courts,   SCOTUS   said   it   did   not   qualify   as   Constitutional   "Article   III   standing"   in   federal   court. 
As   such,   SCOTUS   did   not   establish   any   marriage-based   precedent   on   the   merits   of   the   case;   rather,   they   merely   refused   it   based   on   the   Petitioners'   lack   of   "standing"   in   federal   court.   With   Hollingsworth   v.   Perry   thereby   vacated,   that   simply   left   the   preceding   Perry   v.   Schwarzenegger   decision   -   as   decided   by   District   Court   Chief   Judge   Walker   –   to   be   the   final   legal   authority   in   the   matter   in   California.     Same   sex   marriage   is   finally   legalized   in   California. 
In   2007,   Edith   Windsor   entered   into   a   legally-recognized   same   sex   marriage   from   Canada   with   Thea   Spyer.     Later,   as   New   York   citizens,   state   law   recognized   their   Canadian   same   sex   marriage   (SSM)   as   valid.     When   Spyer   died   in   2009,   Windsor   had   to   pay   $363,053   in   estate   taxes   to   the   Internal   Revenue   Service   (IRS)   of   the   federal   government.     She   requested   a   refund   but   was   denied   due   to   §3   of   the   "Defense   of   Marriage   Act"   (DOMA).     That   section   limited   the   federal   government   to   only   recognize   marriage   defined   as   "one   man,   one   woman"   (OMOW).       Claiming   that   DOMA   was   unconstitutional   based   on   the   Equal   Protection   principle   of   the   Fifth   Amendment   of   the   U.S.   Constitution,   Edith   Windsor   sued   for   the   refund. 
Although   Constitutionally-obligated   to   defend   the   law,   the   Executive   Branch   intentionally   chose   to   not   perform   its   duty   to   defend   DOMA.     President   Obama   directed   his   Attorney   General   to   notify   the   Speaker   of   the   House   of   Representatives   that   the   Department   of   Justice   would   no   longer   defend   §3   of   DOMA. 
As   a   result,   the   House   of   Representatives   –   i.e.,   the   Legislative   Branch   of   government   whose   job   is   to   write   laws   rather   than   enforce   them   -   established   the   Bipartisan   Legal   Advisory   Group   (BLAG)   to   defend   it   instead.     The   District   Court   allowed   BLAG   to   have   that   "standing"   and   thereafter   decided   in   Windsor's   favor   for   her   to   receive   the   refund.     On   appeal,   the   Second   Circuit   affirmed   it   too. 
Each   time,   however,   the   Federal   Government   still   intentionally   failed   to   comply   with   the   order   to   issue   the   refund.     That   is,   even   though   the   President,   as   the   Executive   Branch,   actually   agreed   with   Windsor's   "win,"   his   Administration   intentionally   kept   refusing   to   pay   the   refund   as   court-ordered.     The   premise   for   refusing   to   pay   that   refund   –   even   as   the   President's   Administration   agreed   that   Windsor   deserved   it   –   was   so   as   to   artificially   contrive   a   required   "Article   III   controversy."     As   long   as   the   contrived   "controversy"   still   appeared   to   exist   between   Windsor   and   the   government,   the   case   could   keep   being   appealed   on   up   to   the   Supreme   Court.     Nevertheless,   the   Supreme   Court   allowed   that   contrivance   to   still   be   viewed   as   a   valid   "Article   III   controversy."    
In   addition   to   such   problematic   contrivance   being   allowed,   a   manifest   contradiction   emerged   from   this   as   well.     Unlike   how   the   Petitioners   in   the   Hollingsworth   v.   Perry   case   were   disallowed   "standing"   when   the   appropriate   legal   officials   refused   to   defend/appeal   their   side,   SCOTUS   contradictorily   chose   to   actually   allow   BLAG   to   still   have   "Article   III   standing"   in   this   United   States   v.   Windsor   case,   even   though   it   is   the   Constitutionally-assigned   job   of   the   Executive   Branch   of   government   –   not   the   Legislative   Branch   -   to   defend   and   enforce   laws.     Between   these   two   cases,   SCOTUS's   contradiction   on   the   "standing"   issue   appears   to   proverbially   "have   its   cake   and   eat   it   too." 
With   such   conflation   of   contrivance   and   contradiction   regarding   both   "Article   III   controversy   and   standing,"   the   Supreme   Court   of   the   United   States   then   finally   decided   the   case   of   United   States   v.   Windsor   on   its   merits.     Ordering   the   Executive   Branch   to   pay   Windsor's   refund   (becoming   the   third   federal   court   to   make   that   order),   SCOTUS   overturned   §3   of   DOMA   in   a   5-4   Decision   -   declaring   that   the   Federal   government   must   recognize   any   legally   allowed   marriage   in   (and   only   in)   any   specific   States   that   have   overtly   legalized   it. 
Justice   Kennedy   began   the   opinion's   ending   conclusion,   saying,   "The   power   the   Constitution   grants   it   also   restrains.     And   though   Congress   has   great   authority   to   design   laws   to   fit   its   own   conception   of   sound   national   policy,   it   cannot   deny   the   liberty   protected   by   the   Due   Process   Clause   of   the   Fifth   Amendment." 
Continuing,   "DOMA   is   unconstitutional   as   a   deprivation   of   the   liberty   of   the   person   protected   by   the   Fifth   Amendment   of   the   Constitution." 
Justice   Kennedy   further   added,   "While   the   Fifth   Amendment   itself   withdraws   from   Government   the   power   to   degrade   or   demean   in   the   way   this   law   does,   the   equal   protection   guarantee   of   the   Fourteenth   Amendment   makes   that   Fifth   Amendment   right   all   the   more   specific   and   all   the   better   understood   and   preserved." 
Before   officially   affirming   the   Second   Circuit   Court   decision   before   it,   the   United   States   v.   Windsor   decision   declares,   "By   seeking   to   displace   this   protection   and   treating   those   persons   as   living   in   marriages   less   respected   than   others,   the   federal   statute   is   in   violation   of   the   Fifth   Amendment.   This   opinion   and   its   holding   are   confined   to   those   lawful   marriages." 
Although   much   of   the   Court's   decision   positively   focused   on   the   Tenth   Amendment   limitation   that   marriage   law   is   a   States'   issue   and   not   the   federal   government's   authority,   it   cloaked   that   perspective   inside   the   Fifth   Amendment   basis   of   Equal   Protection.     The   last   sentence,   however,   clarifies   the   entire   decision.     Namely,   if   a   State   has   not   specifically   legalized   a   specific   form   of   marriage,   then   United   States   v.   Windsor   has   no   effect. 
Upon   reviewing   these   two   decisions,   and   even   without   delving   into   any   of   the   merits   of   the   cases   whatsoever,   one   has   to   ask,   who   could   rationally   think   that   these   are   good   decisions   for   polygamists?     The   reality   is,   pro-polygamists   have   little   reason   to   be   excited   about   them   at   all.        
Here   are   the   positives. 
Even   though   Hollingsworth   v.   Perry   itself   has   now   been   rendered   utterly   useless   (except,   perhaps,   as   a   negative   precedent   for   achieving   correct   legal   "standing"),   the   consequence   of   SCOTUS   kicking   it   back   to   the   Perry   v.   Schwarzenegger   decision   does   pose   some   possibilities   for   polygamists   to   pursue   the   "fundamental   right   of   marriage"   of   unrelated   consenting   adult   polygamy.     However,   because   that   preceding   Perry   v.   Schwarzenegger   decision   is   limited   to   only   within   the   State   of   California,   such   possibilities   only   exist   in   that   one   State. 
United   States   v.   Windsor   is   certainly   the   better   of   the   two   decisions.     Its   heavy   emphasis   on   the   Tenth   Amendment   preventing   the   federal   government   from   involvement   in   marriage   control   certainly   comes   much   closer   to   the   position   of   the   Polygamy   Rights   Win-Win   Solution   to   end   the   marriage   debate.     Calling   for   abolishing   all   government   marriage   control   for   unrelated   consenting   adults,   the   National   Polygamy   Rights   Movement   for   Consenting   Adults   has   consistently   been   calling   for   the   federal   government   to   heed   the   Tenth   Amendment   regarding   marriage.     Toward   that   long-term   end,   this   decision   may   be   viewed   as   having   some   "good"   about   it. 
But   these   two   cases   really   are   more   about   negatives   for   polygamists. 
Not   only   is   Hollingsworth   v.   Perry   useless,   but   it   was   actually   that   very   uselessness   that   made   it   even   worse   than   useless.   The   disappointment   of   this   decision   is   that   it   was   not   even   decided   on   its   merits.     That   effectively   shut   out   every   argument   that   had   been   used   in   that   case   from   becoming   an   established   precedent   that   otherwise   could   have   been   used   in   the   fight   for   marital   freedom   by   unrelated   consenting   adult   polygamists   (UCAP).     Indeed,   awaiting   the   official   outcome   on   June   26th,   2013,   the   National   Polygamy   Rights   Movement   for   Consenting   Adults   had   pre-positioned   itself   nationwide   to   immediately   file   legal   challenges   if   those   merits   had   become   a   new   SCOTUS   precedent.     Plaintiffs,   pleadings,   and   even   an   amicus   brief   had   been   pre-organized,   set,   and   ready   to   go.   But   without   the   merits   of   Hollingsworth   v.   Perry   being   set   as   a   SCOTUS   precedent,   such   nationwide   intentions   were   instantaneously   thwarted. 
As   for   United   States   v.   Windsor,   Justice   Kennedy's   next-to-last   sentence   in   the   opinion   rendered   the   entire   decision   also   useless   for   polygamists.     Namely,   this   SCOTUS   decision   only   applies   to   marriages   that   have   been   legalized   in   a   State.     Not   only   has   no   State   legalized   marriage   for   unrelated   consenting   adult   polygamy   (UCAP),   but   they   have   actually   criminalized   it.     Until   the   day   that   any   State   legalizes   unrelated   consenting   adult   polygamy   as   a   "legal"   form   of   marriage,   the   United   States   v.   Windsor   decision   is   also   useless   for   polygamists. 
Ergo,   despite   inaccurate   "reports"   by   manufactured-news   media,   the   National   Polygamy   Rights   Movement   for   Consenting   Adults   is   definitely   not   excited   about   these   two   decisions.     Hollingsworth   v.   Perry   was   not   decided   on   its   merits   and   United   States   v.   Windsor   only   applies   to   legalized   marriages   in   the   States.       Unlike   Lawrence   v.   Texas   of   June   26th   ten   years   ago,   these   latest   SCOTUS   Decisions   on   June   26,   2013,   are   useless   for   polygamists. 


Bibliographic URLs:

June 26, 2013 SCOTUS 
United States v. Windsor 
June 26, 2013 SCOTUS 
Hollingsworth v. Perry 
August 4, 2010 California 
Perry v. Schwarzenegger 
August 6, 2010 
Marriage Control Reversals in 2 States Heading to Supreme Court 
December 1, 2009 
End Marriage Control from Both Sides - The Win-Win Solution 
July 1, 2003 
Court Decisions Secure "Polygamy Rights" 
[Reviewed for publication - Review Board.]

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