Is Utah Prosecuting Polygamist Attorneys on the Basis of Religion?
Earlier this week, Nate Carlisle broke a news article for the Salt Lake Tribune explaining Utah’s latest efforts to persecute polygamists. They’re trying to strip polygamist attorneys of their right to practice law right after launching a huge lawsuit against some Kingston polygamists. Well, it’s a little more technical than that and I’m sure they’d like to be characterized in a much fluffier and flattering way, but for purposes of this blog, that’s the gist of what’s going down.
I got a lot of flack for suggesting this type of thing could happen when I discussed Utah laws during Seeking Sister Wife season 1. People said there wasn’t much of a history of Utah attorneys being targeted for prosecution or disbarment or whatever. They said no one in Utah is persecuted unless they’re a known abuser. They said all sorts of stuff to try to make the glorious state of Utah look more righteous than any other state of the union. Those of us in the know understand that you have to play your cards just right to stay off the radar. This latest effort underscores that approach.
The following is an email I wrote to Nate Carlisle responding to his inquiry as to what I thought about these efforts. I’ve slightly revised the email to make it easier to read in blog format and for those unfamiliar with details Nate understood without any notes.
I just finished reviewing the rule they’re using to argue that a polygamist attorney would always be in violation of ethics rules by virtue of being a polygamist because these men are inherently dishonest, fraudulent, etc. by virtue of living a lifestyle Utah has declared criminal.
I never had to deal with this particular issue before, but I knew it was a possibility from the moment I began practicing law. I deliberately practiced solo for many years precisely to avoid causing any trouble to any potential partner if my lifestyle was later discovered by the bar. I understood that this would diminish my ability to provide a stronger income for my family because I couldn’t share overhead, professional services, etc. (because I would be risking harming a partner if I got disbarred for practicing polygamy), but I felt that was a better option than starting a new career from scratch (which is what I’m doing now anyway). I became a Mormon fundamentalist during law school if that timing seemed confusing at first read.
One of my clients was once told by a senior judge that I practiced in front of several times that he’d “lost some of his rights” the moment he became a polygamist. He was told this during a divorce proceeding and when there were no active criminal proceedings in progress (none were ever filed, either). I had another client ordered by a judge to NOT teach her children her religion because she was learning about Mormon fundamentalism. The judge later backpedalled a little when confronted with the constitutionality of her order, but that sort of bias continued throughout the trial and ultimately, under threat of losing her children, she reconciled to stay with her children. She was never certain what she could or could not teach because most of her beliefs stemmed from early Mormon prophets still revered by the mainstream Mormon church today. I defended another client against a guardian ad litem’s motion to make all of his visits supervised on the sole basis that he was a polygamist. He didn’t care that there were zero allegations of abuse or any evidence that the mother even worried about the safety of her children when they were with the father – or that the father had had custody of the children for several years. The day that motion was heard was one of my favorite days as an attorney because the commissioner actually balked at the bigoted motion and allowed my client to retain custody of all of the children despite his status as a polygamist. He also had me juggle in his chambers until he no longer felt upset about the proceedings, which made the event especially memorable. It gave me hope there could be justice in Utah for a polygamist. It took several more years before I saw another instance like that and I defended polygamists regularly throughout my career.
Frankly, one of the reasons I burned out and gave up on practicing law in Utah was because I became sick of the incessant, bigoted harassment of my peers by legislators, police officers, judges, attorneys, businessmen, local governments, and many members of the public – mostly members of the LDS Church who thought they were servicing their church by oppressing “apostates.”
This bar complaint is precisely the type of thing we polygamists have seen and experienced for many years. Somehow, by virtue of being a polygamist, a man must be engaging in “criminal behavior,” “fraud,” or “dishonesty” as the rule outlines. If I had a dollar for every slimy thing I observed Utah attorneys doing over my sixteen years of practice, I’d be well off, but that means nothing to the bar. They’re too busy to investigate all of the unethical things attorneys do. Attorneys routinely overcharge their clients many hundreds of dollars and everyone turns a blind eye. If he charges an honest wage and he’s a polygamist – well, that’s a different issue – that’s just inherently dishonest. To imply that all polygamists are dishonest, fraudulent, or criminal in some way is offensive and bigoted. If you made the same comment about any other class of religionists, the outrage would be catastrophic. What would be the outcry if you said, “all Jews are dishonest, fraudulent, or criminal?” or “all Mormons are dishonest, fraudulent, or criminal in some way?” “All atheists are dishonest, fraudulent, or criminal?” Say those words against a polygamist in Utah and you’re as safe as a baby lion romping around a herd of lambs.
I once attended a seminar entitled “How to Prosecute Polygamists” where the energy in the room became uber tense the moment a woman stood up and announced she was a plural wife and an attorney. Many were offended by her very presence in the room. Some few said she was brave for standing up to tell people there that not all polygamist women are uneducated and oppressed. As I recall, at that same seminar, one of the speakers told us that the state of Utah was not targeting all polygamists. It was targeting people who had taken an “oath of office” (this included local government officials they were targeting in Colorado City at the time) so I knew that polygamists attorneys were under target even then – this was about ten years ago or more and before the “policy” of only prosecuting alleged abusers. They threatened to take away the license of a judge who was discovered to be a polygamist at that time (I believe he just withdrew his active status but I don’t know for certain) and a Kingston woman was denied the opportunity to take the bar because she was related to the Kingstons. I heard she was later allowed to take the bar, but the Kingstons never chatted with me much so I only heard that second hand.
David Leavitt (as I recall) headed that seminar (he’s the one who prosecuted Tom Green). He noted that when they prosecuted Tom Green, they didn’t care about the welfare fraud charge. They just added that to inflame public opinion. I’ve heard Tom’s version of that story – it’s no wonder they didn’t care about that charge as he’d disclosed his situation before accepting help (his trailers were destroyed by natural disaster) and he was making arrangements to make monthly payments when they nabbed him on a technicality. David Leavitt noted the dollar figure was trivial to the state of Utah, but that it sounded outrageous to the public so they tacked it on to his case to improve public support for his prosecution. It was a lesson learned from the 50s raids.
David Leavitt once financed a woman leaving her husband who was a fundamentalist Mormon but NOT a polygamist. The man was a friend of mine. He regularly kept me updated on his case and informed me that David Leavitt and his friends funded her divorce, her housing, her transportation, and other needs – they even provided her a job. He aggressively pursued supervised visitation on the basis that Rocky Ridge was a known haven for felons (on the basis that polygamists live there). Rocky Ridge has a super low crime rate and is known in Juab County for its upstanding citizens. Ask local sheriffs and police officers, they’ll tell you. That didn’t matter to the man’s wife. She simply wanted her children and she used the laws against her husband to get custody despite the fact that the law and her pleadings were solely based upon his religious beliefs. I’ve seen this tactic used only months ago by a woman trying to gain custody of children in a divorce despite zero allegations of abuse against the children. She simply alleged that all polygamy is abusive and hoped that would be good enough. She lied to get jurisdiction in Utah to take advantage of its harassing laws. It worked. That’s all it takes in Utah.
I could go on for hours. In the polygamist community, this is daily fare. We are rarely surprised by these things. In AUB, polygamists who hear about this will be worried about what they will do if attorneys they can trust will be disbarred for living their religion despite the unconstitutionality of the law. They will withdraw further into their holes to avoid government scrutiny despite the fact that they are willing to obey all constitutional laws of the land. It’s ridiculous. It’s well known that the LDS Church is behind the laws and virtually everyone on the ground believes they are behind efforts like this as well. As long as they retain a stranglehold on Utah government, this will continue. Sadly, the ACLU will do nothing to help our community because, as they’ve told me and others, they don’t want polygamy cases to adversely reflect upon the gay community’s efforts to obtain equal rights. I asked them for help years ago and I’ve known others to help more recently. They won’t help a polygamist.
I’m super happy that Utah filed the complaint against several attorneys at once so they can put up a united defense and I wish them the best. I hope this will allow a test case to finally challenge the bigamy statute in a lasting way (because it gives them standing the Browns allegedly never had). It’s great news from that perspective – they chose the perfect group of people to challenge the law so I’m elated about that. I’m sorry for the grief it will cause them (unless this was orchestrated for the express purpose of challenging the law).
END email to Nate Carlisle
Since this article was written, the Utah State Bar publically announced that they are not interested in pursuing this case as they do not see a correlation between being a polygamist and being de facto unfit to practice the law. I’m not certain what motivated that approach (sincerity = “yeah, we’re making progress” or pragmatism = “shoot, they’ll get this appealed to the United States Supreme Court where they’ll likely win on constitutional issues), but I’m interested to see what comes next.