Lots Of Wives And Children, Many Mistreated

The leader of a small polygamous group near the Arizona-Utah border had taken at least 20 wives, most of them minors, and punished followers who did not treat him as a prophet, newly filed federal court documents allege.

Samuel Bateman was a former member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, until he left to start his own small offshoot group. He was supported financially by male followers who also gave up their own wives and children to be Bateman’s wives, according to an FBI affidavit.

The document filed Friday provides new insight about what investigators have found in a case that first became public in August. It accompanied charges of kidnapping and impeding a foreseeable prosecution against three of Bateman’s wives — Naomi Bistline, Donnae Barlow and Moretta Rose Johnson. Bistline and Barlow are scheduled to appear in federal magistrate court in Flagstaff on Wednesday. Johnson is awaiting extradition from Washington state.

The women are accused of fleeing with eight of Bateman’s children, who were placed in Arizona state custody earlier this year. The children were found last week hundreds of miles away in Spokane, Washington.

Bateman was arrested in August when someone spotted small fingers in the gap of a trailer he was hauling through Flagstaff. He posted bond but was arrested again and charged with obstructing justice in a federal investigation into whether children were being transported across state lines for sexual activity.

Court records allege that Bateman, 46, engaged in child sex trafficking and polygamy, but none of his current charges relate to those allegations. Polygamy is illegal in Arizona but was decriminalized in Utah in 2020.

From the Associated Press via the Denver Post.

This FLDS offshoot is small and exceptional, but clearly abusive. I hadn't been aware of the decriminalization of polygamy in Utah in 2020 (if that is an accurate description), in response to less troublesome cases:

Marion Timpson’s own marriages reflect Utah’s recent legal battles over polygamy.

“I married Holly in 2005 and Katie in 2013, and I married Lisa in 2014,” the polygamist said, referring to his wives.

One of his marriages took place shortly after a federal judge struck down Utah’s anti-polygamy laws. Reality TV polygamist Kody Brown and his wives sued the state and won, effectively decriminalizing plural marriage as a religious belief. Then a federal appeals court reinstated the bigamy law and the Utah State Legislature passed a law that re-criminalized bigamy. . . .

In 2020, the Utah State Legislature passed a law to decriminalize polygamy, reducing bigamy among consenting adults from a third-degree felony, punishable by prison time, to an infraction on par with a speeding ticket.

From the Fox News. 

Republicans Still Mendacious, Delusional, and Weird

One of the most appalling aspects of the current Republican Party is its utter lack of respect for reality, using illegitimate and improper means to achieve it ends. 

Absurd and malicious cases like this one that call into question the sanity of the local elected sheriff pressing it, alas, are increasingly not uncommon in a party that has still pledges its soul to serial fraudster Donald Trump.

Utah Republicans, as a whole, were among the least support of Trump in his two Presidential races, but ultimately, they too seem to have fallen for his spell. The county in question is home to Utah's second biggest city, Provo.

Earlier this week, the Utah County Sheriff's office announced their reinvestigation into a supposed child sex trafficking ring they claim was involved in "ritualistic child sex abuse" between the years of 1990-2010, asking victims and those with knowledge of the crimes to come forward "so that they can be offered all the assistance possible."

If this sounds a tad suspect to you, it is probably because you have lived through some part of the last several decades or are perhaps familiar with the Satanic Panic, the 87,000 documentaries on people falsely accused and wrongfully imprisoned over this nonsense (highly recommend Southwest of Salem, Witch Hunt and Fall River), or even the FBI Behavioral Science Unit's 1992 report on "ritual abuse." Or perhaps what really tipped you off is the fact that no actual instances of it have ever actually been proven to have happened outside the imaginations of people like Utah County Sheriff Mike Smith and the man who reportedly sparked the current investigation, a convicted sex offender/incel rights activist who faked his own death and moved to Scotland, where he was identified after turning up in a hospital sick with COVID.

Following the Utah County Sheriff's press release, Utah County Attorney David Leavitt called for Sheriff Smith to resign and for the Sheriff's Department itself to be investigated, due to the outlandish nature of the so-called investigation. Leavitt also noted that he and his wife were cited in the official "report" on the investigation, which accused them of not only ritualistically abusing children, but of eating them.

“I am calling upon Sheriff Mike Smith to open his office to an outside investigation,” Leavitt said in a statement, “where outside, independent investigators are able to investigate and confirm or deny that documents from a debunked investigation from more than a decade ago were or were not used for political purposes in a Utah County Attorney’s race.”

From here (corroboration here).

Maybe Lower BAC Standards Don't Really Work That Well

Utah's decision to lower the blood alcohol content necessary to constitute a drunk driving offense greatly reduced reported accidents. But a closer look at the data suggests that the main reason is that people are less likely to report minor accidents in urban areas on weekdays, not an actual reduction in accidents.

In March of 2017 Utah became the first state in the United States to lower the legal blood alcohol content (BAC) for driving from 0.08 to 0.05 g/dL. We take advantage of the fact that enforcement was delayed until 2019 to test whether this policy change significantly affected the number of traffic accidents or the severity of those accidents. We employ a difference-in-differences strategy on Utah counties using neighboring states as controls. Results show the policy appears to decrease the total number of accidents in urban counties, limited primarily to property damage only accidents. Surprisingly, the strongest effects are found during weekday days. We confirm our findings using a synthetic control and a doubly robust difference-in-differences estimator. We believe these results may be partially explained by drivers who, after the policy is enacted, avoid reporting property damage only accidents if possible.

Javier E. Portillo, et al., "Drink...then Drive Away: The Effects of Lowering the BAC in Utah" (March 15, 2022).

Utah Is Different

Utah’s population grew faster than that of any other state between 2010 and 2020. Salt Lake City has the lowest jobless rate among all big cities, at 2.8%, compared with a national rate of 5.2%. That the state has rebounded so well from the downturn caused by the covid-19 pandemic is thanks to the Wasatch Front, an urban corridor that includes Salt Lake and Provo, home to Brigham Young University. The four counties that make up the Wasatch Front account for at least 80% of Utah’s economic activity, reckons Juliette Tennert, an economist at the University of Utah.

From The Economist.

Utah also ranks at or near the very bottom for metrics of gender equality.

More red states has weak economies. Most blue states have strong economies and have been less sexist on a longstanding historical basis. Many people attribute the economic success of blue states to substantial female labor participation.

Population growth nationally is concentrated in bluer urban areas while rural areas have stagnant or declining populations, yet many blue states overall have falling populations, while many red states overall have rising populations. But high female participation in the workforce and higher education tends to reduce birth rates.

For readers not familiar with U.S. cultural geography and history, Utah is predominantly Mormon in religion, a conservative and fairly divergent form of Christianity in the U.S. that often makes common cause with white Evangelical Christians, despite mutual antipathy between members of  the two faiths and very different cultural norms. Evangelical Christianity emerged in the slave states of the American Southeast, starting in earnest in the Second Great Awakening despite some more remote historical antecedents. The Church of Latter Day Saints (i.e. Mormonism) started in New England and was repeatedly exiled to the West after bouts of local opposition with stops in Ohio and Missouri before establishing a permanent home in Utah which is in the Mountain West.

It makes sense that a state with fewer women in the workforce, like Utah, will have a lower unemployment rate for people who are still in the workforce. 

It is also not surprising that a state where people have many children and start doing so early out of religious motivations have high rates of population growth, especially in a period when immigration from abroad has been very modest.

It is, however, rather surprising that Utah can have such an urban population, which is reasonably well educated, affluent, and connected to the global community, yet remain a red state.

Obviously, religion and culture explain that to a great extent. But Mormon Republicans are a very distinct subset and faction within the Republican party, and they don't fit many GOP stereotypes.

Prosecutors Don't Always Have Absolute Immunity From Civil Liability

Usually, prosecutors have absolute immunity from prosecution. But this rule doesn't imply to a prosecutor's involvement in the investigative phase of a case, during which prosecutors have only qualified immunity. 

Conrad Truman sued state prosecutor Craig Johnson and various Orem City police officers for violating his civil rights by fabricating evidence that was used against him in a murder prosecution. Mr. Truman was prosecuted twice for the murder of his wife. According to Mr. Truman’s complaint, the prosecution knowingly falsified measurements of the murder scene to rule out the possibility of suicide or a self-inflicted accidental wound. As a result, the state medical examiner deemed Mrs. Truman’s death a homicide and Mr. Truman was indicted and successfully prosecuted for murder. After his conviction, he learned of the 2 mismeasurements and the state court granted him a new trial. In the second trial where proper room measurements were admitted into evidence, Mr. Truman was acquitted.

These events led Mr. Truman to file a 42 U.S.C. § 1983 action against the prosecutor and the police. The district court found that the prosecutor was entitled to qualified immunity as a matter of law and the claims against the police officers were barred by previous holdings in state court.

Exercising jurisdiction under 28 U.S.C. § 1291, we disagree with the district court that the prosecutor is entitled to qualified immunity at this stage in the proceedings. At the motion to dismiss stage, the allegations in the amended complaint plausibly allege the elements of a fabrication of evidence claim. As a result, dismissal based on qualified immunity was inappropriate. But summary judgment was appropriate as to the police officers because Mr. Truman forfeited his argument regarding issue preclusion in state court and did not argue for plain error review on appeal.

We therefore REVERSE the dismissal of the fabrication of evidence claim against the prosecutor and AFFIRM the entry of summary judgment in favor of the police officers.

The full 10th Circuit opinion is here. 

Winning in 2020

What do Democrats need to do to win in the 2020 election and beyond?

Policy

* Show off the virtues of the Democratic agenda in state houses we control, rather than insisting on trying to show that Democrats can get something done primarily in Congress, where only legislation acceptable to Donald Trump and hard line Republicans in the Senate can pass. 

* Demonstrate at the state level that Democrats can take meaningful steps to reduce teen pregnancy, enact sensible gun control legislation, broaden access to higher education, legalize marijuana, reduce unnecessary and costly excessive incarceration, fund relatively inexpensive government bureaucracies and court systems at levels necessary to meet the needs of growing businesses, roll back unnecessary occupational licensing regulation, use all available means to make health care more accessible, etc.

* In Congress, one potentially fruitful way to cross the aisle may be to try to distinguish Mormon Republicans, whose bases in states like Utah and Idaho were skeptical of Trump in the first place, to break with other Republicans on select issues targeting Trump's corruption and immorality. The Democrat's hand will be strongest on budget and appropriations issues and those issues can be leveraged for gains on other fronts. Sentencing reform and marijuana legalization may be exceptions where good legislation can be passed as Republicans have eventually come around to Democratic positions on these issues.

* In particular, hammer the administration on unpopular decisions like weak approaches towards Saudi Arabia, Russia and North Korea, inhumane treatment of immigrants, especially children and Dreamers, tax cuts restricted to big corporations and the rich that have produced large, peacetime deficits, corruption, environmental regulations such as endangered species protections and clean water, poor disaster responses, and support for white supremacists and neo-Nazis. Democrats have nothing to gain from cooperating to achieve half-measures with Trump.

* Keep fighting back and building outrage over Trump's conduct as President. This is what drove record turnout for the midterms. The 2020 election can have record turnout too, particularly given record turnout from Millennials for their age group. 

Election Law Reform

* Push election administration innovations that increased voter turnout like election day voter registration and all mail-in ballots and an end of signature matching for mail-in ballots in states that Democrats control legislatively, and in states that Democrats do not control, by initiative where possible.

* Push legislation and ballot initiatives to mandate that only candidates with majorities can win seats, requiring runoffs or rank choice voting in cases where the plurality candidate receives less than 50% of the vote, so that third-party candidates don't act as spoilers.

State By State Efforts

* Flip states that Trump won narrowly in 2016. Many states were very narrow wins for Trump in 2016: Wisconsin (0.7%), Pennsylvania (0.7%), and Michigan (0.3%) stand out, but Arizona (3.5%), North Carolina (3.6%) and Florida (1.2%) are also states that were reasonably close in 2016 and can be flipped in 2020. These are states that a Democrat in 2020 running against a campaign by Trump who has shown his true colors ought to be able to win.

* Defend states that Clinton won narrowly in 2016. Maine (which went for Clinton by 3.0 percentage points, but gave Trump one electoral vote in the 2nd Congressional District by 10 percentage points, which flipped to a Democrat in the House in 2018), New Hampshire (0.3%), Minnesota (1.5%) and Nevada (2.4%) were narrow wins for Clinton in 2016 and can't be taken for granted. Clinton won Colorado with a 4.9% margin in 2016 and the trend line in Colorado in the midterms was even more strongly towards the Democratic party, so Colorado may need less attention in 2020.

* Iowa (9.4%) and Ohio (8.1%) which voted for Obama in 2008 and 2012 are also winnable with the right candidate, even though they weren't close in 2016. A Midwestern nominee might be attractive.

* Democrats need a candidate who is strong in these swing states, not in states that are strongly GOP leaning, or in safe blue states.

* Work on long run party building in Arizona, following in the footsteps of similar successful efforts in Colorado, Nevada and Virginia. Arizona has supported moderate Northeastern style Republicans in the past. As the GOP has moved to the right, there is room for big tent Democrats to win Arizonans over. Even if Democrats don't win the Presidential election in 2020 in Arizona, this is one of the few states that has a potential to shift its long run partisan leanings in the long run, joining its neighbors California, Nevada, New Mexico and Colorado in the mountain states. Democrats aren't up against deep seated cultural commitments in Arizona in the way that they are in the South and many rural states or states with large Mormon populations.

* In Florida, devote lots of resources early to registering to vote the 1.4 million people with felony records who were newly enfranchised by the passage of issue 4, and Hurricane Maria migrants from Puerto Rico; improve election administration in large counties where Democrats control county government; and pursue litigation now to outlaw and prevent dirty trick voter suppression tactics utilized in the midterm election cycle.

* Develop a stronger economic issues agenda to address the concerns of voters in the Rust Belt (e.g. Northern Ohio, Western Pennsylvania, and Southern Michigan).

* Provide solid Democratic party candidates to take on Cory Gardner in Colorado and Susan Collins in Maine.

Western Interstate Highway Electric Car Charging Stations Planned

The governors of Colorado, Utah and Nevada have committed to working together to build a regional electric vehicle charging network that covers more than 2,000 miles of highway across their three states. 

Targeted corridors include Interstates 70, 76 and 25 in Colorado, Interstates 70, 80 and 15 in Utah and Interstates 80 and 15 across Nevada, according to the announcement Monday.

“This initiative recognizes that our states will continue to lead the country in the electric vehicle market,” Gov. John Hickenlooper said in a statement. “Our residents and the millions of visitors to our states will be able to drive electric vehicles from Denver to Salt Lake City to Las Vegas — from the Rockies to the Pacific.” 

In Colorado, there are nearly 8,000 electric vehicles on the road today, up from fewer than 100 in 2011.

From The Denver Post.

Much of the funding will come from the Volkswagon diesel emissions test fraud settlement.

Meanwhile, an increasing share of the electrical grid is being powered by renewable energy, with Las Vegas now 100% renewable energy powered, and great strides are being made in the technology and costs of solar power, wind power and batteries for applications such as electric cars (with Nevada landing Tesla Motors big battery manufacturing plant).

Oral Arguments Were Held In Sister Wives Polygamy Decriminalization Case

The United States Court of Appeals for the 10th Circuit in Denver heard oral arguments today in the appeal by the State of Utah of a Utah District Court decision holding unconstitutional a Utah law criminalizing cohabitation with people of the opposite sex by married people constitutes felony bigamy, even though there is no effort to claim legal recognition for the additional relationships as a marriage.  The prohibition on having two marriage licenses in force at the same time was not challenged.

The parties are stars of the reality TV show "Sister Wives" and relocated to Nevada when they faced a threatened prosecution in Utah.

While the three judge panel grilled lawyers for both sides, Utah was taken to task for its exceptionally poor briefing of the case which has previously been covered at this blog.

Coinciding with this event, the Justice Department is bringing suit against the twin fundamentalist Mormon dominating cities of Hinsdale and Arizona City on the Utah-Arizona border for discriminating against people who are not members of the polygamous FLDS faith.

Previous coverage here.

Utah Does A Good Job Responding To Homelessness

Utah has a reputation, rightly earned, for being a conservative state.

But, Utah's Mormon heritage can give this conservatism a populist twist.  It is tops in the nation in its funding of elementary education, and it is also notable for its commitment to the "Housing First" approach to responding to vagrancy (also known as "chronic homelessness").

Colorado's Gay Marriage Ban Ruled Unconstitutional By Adams County Judge

Adams County District Court Judge Crabtree issued a ruling today holding that Colorado's gay marriage ban is unconstitutional, denying any money damages claim against Governor Hickenlooper, and staying his ruling pending an appeal to the Colorado Supreme Court.

Court rulings declaring a law to be unconstitutional skip the Colorado Court of Appeals in the appellate process and advance directly to the Colorado Supreme Court.  Colorado Attorney General Suthers intends to appeal the ruling, despite the fact that Governor Hickenlooper, in a separate brief, expressed doubts about the constitutionality of Colorado's gay marriage ban.  The ban was enacted by the Colorado General Assembly in the year 2000, and was made a part of Colorado's state constitution in 2006.

The core conclusion of the ruling is that the Colorado's Attorney General's argument that there is a compelling governmental interest in encouraging procreation and providing parenting for children by their biological parents was an after the fact pretext that was not important in the passage of either the law, or in the state constitutional amendment.  He also noted that Colorado's marriage laws are not closely tailored to this purportedly compelling governmental interest, allowing marriage in many cases where the couple cannot or does not wish to have children (and although the Court does not really address it, doing little to discourage extramarital child bearing).

Instead, the ruling concluded that the principle reason for the ban was to uphold tradition, which standing alone, which precedent clearly holds is a legally insufficient reason for denying someone a fundamental right to marry that has been recognized in a broad variety of other contexts, and a fundamental right for people who are married (perhaps elsewhere) to remain married.

The Court also concluded that the availability of civil unions in Colorado, which provide marriage-like rights to couples entering into them under state law, are not an adequate substitute for marriage, because they do not confer upon couples the rights of married couples under federal law.  Thus, this is a second class institution that is not an adequate substitute for marriage.

Following the lead of many other judges in similar cases, the ruling is stayed while appeals are pending.

Unless the U.S. Supreme Court overruled the 10th Circuit and/or other state and federal court rulings holding that gay marriage bans are not unconstitutional, four factors will probably lead the Colorado Supreme Court to uphold this ruling on appeal:

* The U.S. Supreme Court ruling in Windsor striking down the federal component of the Defense of Marriage Act, Lawrence, holding that criminalizing consensual sodomy involving consenting adults is unconstitutional, and Romer holding that a state initiative in Colorado prohibiting local governments from passing gay friendly laws was unconstitutional, have created a body of precedent whose logical conclusion is to hold that gay marriage bans by states are unconstitutional.

* There have been a large unbroken string of rulings holding that gay marriage bans are unconstitutional across the nation.

* The ideological makeup of the Colorado Supreme Court (probably best characterized as having 4 liberals, 1 moderate, and 2 conservatives), is liberal leaning.

*  The United States Court of Appeals for the 10th Circuit has struck down a gay marriage ban in Utah and will probably strike down a similar ban in Oklahoma where the judges on the Court of Appeals panel are the same and the facts are essentially identical, before the Colorado Supreme Court has a chance to rule on the issue.

There is also a question of timing.  The incumbent Colorado Attorney General, a Republican, is term limited.  His successor will be elected in four months and will take office in six months.

If that successor in the open race for Colorado Attorney General in this November's general election is Democrat Don Quick, he will is likely to reverse the course taken by our incumbent Attorney General and abandon an any appeal of this ruling, or urge the Colorado Supreme Court to affirm the ruling if someone else is allowed to argue in favor of upholding the law on appeal.

In contrast, if Republican Attorney General nominee Cynthia Coffman wins in November, she will likely stay the course set by her predecessor.

UPDATE July 10, 2014:  The Attorney General's effort to enjoin the Boulder Clerk's issuance of same sex marriage licences has failed on the grounds that repairable injury was not shown, despite the fact that it violates current state law since relevant court ruling have been stayed in this ruling.  This ruling also recounts all of the cases holding same sex marriage bans unconstitutional in an unbroken streak in a footnote.  The State of Utah has forgone en banc review in the 10th Circuit and is instead directly seeking U.S. Supreme Court review.  Denver's Clerk and Recorder has also begun to issue same sex marriage licenses.

UPDATE July 14, 2014: The Pueblo County Clerk has followed the lead of Denver and Boulder on this issue. Governor Hickenlooper has asked the Attorney General to drop the appeals (although he doesn't have the authority to order him to do so). Governor Hickenlooper said:

I have urged the attorney general not to appeal Judge Crabtree’s ruling. If he feels he needs to continue to defend this discriminatory law, I urge him to seek final resolution at the Colorado Supreme Court.

Cynthia Coffman, the Chief Deputy AG under Colorado Attorney General Suthers and Republican nominee for the post, favors continued appeals; Don Quick, the Democratic candidate for the Colorado Attorney General's office, would drop appeals of the District Court ruling.

UPDATE July 15, 2014: The 10th Circuit stay of its Utah gay marriage decision will expire at 8 a.m. on July 21, 2014 unless the U.S. Supreme Court intervenes, which is not automatic. According to the Desert News (a leading Salt Lake City newspaper):

The state's petition for a stay would be directed to Justice Sonia Sotomayor, who oversees the six states that make up the 10th Circuit. Sotomayor put the brakes on same-sex marriage in Utah last December with an order that appeared to have support of all nine justices because there were no dissenting votes. But that doesn't necessarily mean the court would intervene in the marriage recognition case, Evans v. Utah.

Colorado Attorney General Suthers, meanwhile, has asked the Colorado Supreme Court to order the Boulder County Clerk and Record to stop issuing same sex marriage licenses until an appeal of Judge Crabtree's ruling is resolved, something that a District Court Judge in Boulder County refused to do.

This will be the first time that the Colorado Supreme Court will have had to address the gay marriage issue, although the issue presented directly will be a procedural one.  Note that any decision of the Colorado Supreme Court, affirming or reversing Judge Crabtree's ruling must necessarily be based on the United States Constitution, because the gay marriage ban is part of the constitution of the State of Colorado.

UPDATE July 18, 2014: This afternoon, U.S. Supreme Court extended the stay of the Utah ruling which the 10th Circuit would have let expire on Monday morning.  Also this afternoon, the Colorado Supreme Court ordered clerks in Denver and Adams County not to issue same sex marriage licenses pending any appeal of the Adams County District Court ruling striking down Colorado's gay marriage (the decisions is not directly applicable to the clerks in Boulder and Pueblo counties who are also issuing same sex marriage licenses at this time).  Finally, unsurprisingly, the 10th Circuit panel that found a gay marriage ban unconstitutional in Utah came to the same conclusion by the same 2-1 margin today in a case from Oklahoma.

Recall that Utah's attorney general has already announced that the 10th Circuit ruling on gay marriage will be appealed directly to the U.S. Supreme Court without seeking en banc review in the 10th Circuit.

This afternoon's stays of lower court decisions pending appeals in the U.S. Supreme Court and Colorado Supreme Court are arguably merely questions of preserving the status quo pending appeal.  But, the U.S. Supreme Court stay does suggest that the U.S. Supreme Court is likely to take up the issue. 

These 10th Circuit rulings and the apparent pending U.S. Supreme Court review of one or more of the 10th Circuit decisions on gay marriage, is also pertinent to the Colorado Supreme Court.  Because Colorado's state constitution prohibits gay marriage, any judicial action ending a gay marriage ban in Colorado must rely solely on federal law with regard to which the U.S. Supreme Court and 10th Circuit's rulings are precedents on these issues of federal law that are applicable to Colorado.

In contrast, in states where a gay marriage ban is not part of the state constitution, a state court ruling that a ban is unconstitutional under a state constitutional provision, even one identical in language to the federal constitution, cannot be reversed by the U.S. Supreme Court.

Gay marriage supporters want as much of a consensus as possible in the lower courts that gay marriage bans are unconstitutional before the U.S. Supreme Court weighs in on the matter.  Right now, there is not a genuine split of authority on the issue.  The U.S. Supreme Court is generally inclined not to reverse unanimous holdings of large numbers of lower courts on the same issue, even though it has the authority to do so and sometimes exercises that authority.

10th Circuit Strikes Down Utah's Same Sex Marriage Ban; Colorado Impact Disputed

The 10th Circuit Court of Appeals has struck down Utah's ban on same sex marriage in a 2-1 decision.  The decision has been stayed pending appeal.  It could be reversed either by the judges of the 10th Circuit sitting en banc, or by the U.S. Supreme Court if it chose to grant certiorari.

This follows a long and uninterrupted string of decisions by courts in other jurisdictions, most recently the Indiana Supreme Court, to the same effect.  But, this is the first federal appellate court ruling finding a same sex marriage ban to be unconstitutional. (Incidentally, West Virginia also ceased to recognize the tort of criminal conversion this week, decades after rejecting the tort of alienation of affections.)

Colorado, which also bans same sex marriage, is also in the 10th Circuit.  Colorado does not necessarily present the same issues, because unlike Utah, it has civil unions that provide all rights except the name "marriage" to same sex couples under state law.  The status of a civil union in Colorado for federal law purposes is less clear, and many couples in civil unions in Colorado have legally married in another state to assure federal recognition of their marriage.

But, the tenor of the majority opinion in the case suggests that its reasoning is applicable broadly enough to extend to Colorado, particularly if one concludes that a Colorado civil union does not confer marriage treatment under federal law.

This ruling surely presages the likely result in an Oklahoma case pending in the same court before the same panel of judges on the same issue, since Oklahoma, unlike Colorado, does not have marriage-like rights for same sex couples in civil unions, unless this decision is overruled by an en banc 10th Circuit or the U.S. Supreme Court in the meantime.  Oral argument in the two cases was held on the same day before the same judges.

The Boulder County Clerk and Recorder has begun to issue same sex marriage licenses in response to the ruling, over the objections of the Colorado Attorney General, reasoning that the opinion is controlling 10th Circuit law and that the stay applies only to Utah.  I'm not terribly impressed with that reasoning (the stay is of the overall decision pending appeal and is not really limited to Utah in the sense argued), but the grassroots action by a local elected official is a typical posture for same sex marriage litigation in many states.

The U.S. Supreme Court rejected the federal portion of the Defense of Marriage Act ruling that determining who may be married is derivative of state law absent a good reason otherwise, but left the full faith and credit provisions that allow states to refuse to recognize same sex marriages from other states in tact.

So far, it has not accepted any cases resolving the constitutionality of same sex marriage bans at the state level.  It could quite plausibly refrain from doing so until a circuit split evolves (if one does).  It could have ruled in cases holding that same sex marriage bans are illegal from state supreme courts, but those rulings often incorporate state as well as federal constitutional rights.  In contrast, this ruling if the first decision finding same sex marriage bans unconstitutional that is decided solely under federal law in a federal court that is ready for U.S. Supreme Court review.

Child Abuse Homicide Statutes Unnecessary

In Colorado, child abuse resulting in death has much more severe sentences imposed for comparable burdens of proof as to perpetrator intent than in cases involving strangers, although the sentences imposed are towards the low end for violent crimes of the same statutory felony level classification.

Part of the reason that Colorado enacted these sentences was out of the belief that juries tend to go easy on child abuse defendants and that child abuse cases are hard to prove.

A study of child abuse resulting in death prosecutions from neighboring Utah, which does not have an extraordinarily severe sentencing scheme for child abuse resulting in death, empirically rebuts this legislative intuition.

Hilary A. Hewes, M.D., and colleagues from the University of Utah, Salt Lake City, examined homicide data from the National Violent Death Reporting System in Utah for all deaths classified as homicides between January 2002 and December 2007 to compare the conviction rate and sentence severity between child abuse homicide offenders and adult homicide offenders. The Utah State Code states that "criminal homicide constitutes child abuse homicide if, under circumstances not amounting to aggravated murder, the actor causes the death of a person younger than 18 years and the death results from child abuse."

The authors identified 373 homicides in Utah during the study period, of which 334 were included in the analysis. Sixty-six of the included cases (19.8 percent) were child homicides, of these, 52 cases (15.6 percent) were considered child abuse homicide according to Utah statutes. Of the 52 cases, 34 were within Utah state jurisdiction and had a suspect identified. Conviction of the suspect occurred in 30 of the 34 cases, for a conviction rate of 88.2 percent. Of 268 adult homicide cases included in the study, 135 cases had a suspect identified. Among these, 112 convictions (83 percent) occurred.

Of the 211 homicide convictions included in the study, the authors found that the 88.2 percent conviction rate for child abuse homicides was similar to the 83 percent conviction rate identified for adult offenders. The authors found that there were no significant differences in the level of felony or severity of sentencing for suspects of child abuse homicide versus adult homicide. Additional analysis showed that suspects of child abuse homicide were most often male, the victim's parent and of white race/ethnicity.
 

Homicides that are not child abuse homicides are much less likely to result in convictions, but this is entirely a result of police not being able to identify a suspect in cases not involving children.

While there are deep cultural differences between Utah and Colorado, since Utah is more ethnically homogeneous, since Utah is predominantly Mormon in a way that provides a different support network to church members than is found among most non-Mormons, and since Utah has the nation's highest fertility rates for native born non-Hispanic whites in the nation (with the possible exception of other states like Idaho with a large Mormon population) and the lowest average ages of first marriage creating far more families made up of young parents with many children.  Utah is also far more politically conservative than Colorado and hence juries there may be less inclined toward leniency.

But, none of those factors obviously disturb the assumption that if Colorado child abuse causing death statutes provided for similar sentences for child abuse homicides with levels of intent comparable to homicides involving strangers, that Colorado juries would convict known suspects at comparable rates, and that Colorado judges would impose sentences at comparable rates.

The leniency seen in prosecutorial conduct and judicial sentencing in Colorado for child abuse causing death cases only seems lenient relative to the very long sentences of incarceration imposed in Colorado for these offenses by statute, even though the empirical data on sentencing in Colorado clearly establishes that sentencing is much more severe for child abuse causing death cases than it is for comparable cases involving strangers.

 

Too Funny

The You Tube parody Provo, Utah Girls is a riot. Via a Salon.com story on why twenty-something atheist feminists read Mormon home maker blogs.