A federal District Court judge in Utah sides with the right to privacy and religious freedom.
The American Prospect
by Scott Lemieux
Last week, a federal District Court judge in Utah struck down a law used to prosecute members of polyamorous relationships. Predictably, some conservatives immediately brought up the slippery slope to legalized adult incest and legal "teen sex cults." However, the decision is a very rational and straightforward application of core principles of the right to privacy and religious freedom.
It is crucial to understand, first of all, that Judge Clark Waddoups's decision in Brown v. Buhman did not "legalize bigamy." The lawsuit was brought by the reality television star Kody Brown, who lives in a polyamorous relationship with four women but is only legally married to one. Brown did not even contest Utah's limitation of marriage to couples, and Judge Waddoups deferred to a Supreme Court precedent dating back to the 19th century holding that bans on bigamy are constitutional. Rather, the decision concerns an unusual, extraordinarily broad provision of Utah law under which "[a] person is guilty of bigamy" if "the person purports to marry another person or cohabits with another person."
The problems with this statutory language under the right to privacy most recently re-established in Lawrence v. Texas should be obvious. On its face, the law would prohibit not only informal consensual polyamorous relationships—problematic in itself—but any kind of intimate cohabitation between unmarried partners. Based on Lawrence's recognition of the fundamental right consenting adults have to engage in same-sex relations, it is very hard to argue that this section of the Utah statute doesn't violate the right to privacy guaranteed by the 14th Amendment.
Defending the statute, the state of Utah made an argument essentially similar to the argument made by former Virginia Attorney General (and failed gubernatorial candidate) Ken Cuccinelli in defense of his application of Virginia's patently unconstitutional band on "sodomy." As Judge Waddoups put it, Utah argued that " much of the Statute’s usefulness, apparently, lies in the State’s perception that it can potentially simply charge religious polygamists under the Statute when it has insufficient evidence of other crimes." But like Cuccinelli's attempt to prosecute a man guilty of creepy—but not actually illegal—sexual solicitation of much younger women under a broad-based sodomy prohibition, this stated application is inconsistent not only with the right to privacy, but the rule of law. The right recognized by Lawrence does not forbid Utah from issuing multiple simultaneous marriage licenses to the same individual, banning nonconsenual sex, or banning sex between adults and children. If someone in a polyamorous relationships is guilty of any of these offenses, they can be prosecuted under specific statutes banning bigamy, sexual assault, and/or statutory rape. If Utah does not have sufficient evidence to prosecute someone of these specific offenses, they have no business punishing them under a broader statute. Allowing a law like this to remain on the books has the same problems as allowing rarely enforced laws banning sodomy on the books: it's an invitation to prosecutorial abuse inconsistent with the fundamental protections of the 14th Amendment. ...
Is being kinky, and a feminist something I should withhold from conversation even if its relevant?
XOJane, I've found myself struggling for the last year with personal, but conflicting interests. I strongly consider myself a feminist, yes I could be more well read in the history, and politics, but that's pretty much where my allegiances are. My feminism isn't the root of the issue, it's my realization and passion being kinky!
In college, I had taken Philosophy of Sexuality, and for an essay I was assigned to debate if BDSM was a perversion. More specifically if Sadomasochistic sexual encounters were a perversion. For the first that semester I was stumped. I could only see it from one point of view, that of course it wasn't a perversion, if there was complete communication and consent. That was a break through point in my sexuality, realizing this was why I've always felt unsatisfied, or uncomfortable. I identity as submissive sexually. Naturally thats the best way to label it, at least with in the Kink community. As a human, and a feminist I believe in equality in all aspects. Striving for that equality in my sexuality, has lead me to find the healthiest, most balanced sexual relationships for me have incorporated S&M, because communication is extremely key to that whole experience.
But here's the breaking point, How do identify as a feminist, and a submissive at the same time?
I feel like I'm betraying my feminist beliefs by enjoying something that from the outside seems very misogynistic. I'm feeling guilty, and confused about the whole matter. I can't stop being ether. I've gotten poor reactions when my interest in BDSM has come up around other feminists. (I've been part of a group of very strong minded, feminist artists.) ...
Maybe polygamy. Maybe also polyamory — multiple-parties marriages. (Not to be confused with “swinging,” the polyamorists emphasize.)
Religious conservatives, better take your tranquilizers. Gay activists — the religious conservatives’ nemeses — scoff at the prospect of such developments. A “red herring” aimed at impeding their agenda, they say.
But the fact is, how do you support gay marriage — which we have supported and do support — and then oppose polygamy and polyamory?
On the basis that they depart from long tradition? That hasn’t slowed down the gay marriage movement, has it?
A federal judge in Utah already has ruled that laws banning polygamy violate the First Amendment. Other cases no doubt will be joining it in the legal appeals pipeline.
And don’t look now, but the polyamorists are agitating openly for acceptance, as they have been quietly doing so for several years now. They have a convention planned in April at the Philly airport Embassy Suites, with workshops, seminars and all the usual works.
They have websites and 501(c)3 advocacy organizations and bloggers. There’s even a big ongoing academic study focusing on them.
“Relationship choice” is their battle cry.
Gay marriage is soooo yesterday. Polygamy and polyamory are going to be the new hoo-ha and turmoil. Count on it.
Does that somehow put traditional marriage at further risk? Given the percentages, not likely. A UCLA study estimates America’s gay population at under 2 percent, and the polygamists and polyamorists are likely even smaller demographics. ...
A federal judge has struck down parts of Utah’s anti-polygamy law as unconstitutional in a case brought by a polygamous star of a reality television series. Months after the Supreme Court bolstered rights of same-sex couples, the Utah case could open a new frontier in the nation’s recognition of once-prohibited relationships.
Judge Clark Waddoups of United States District Court in Utah ruled late Friday that part of the state’s law prohibiting “cohabitation” — the language used in the law to restrict polygamous relationships — violates the First Amendment guarantee of free exercise of religion, as well as constitutional due process. He left standing the state’s ability to prohibit multiple marriages “in the literal sense” of having two or more valid marriage licenses.
Judge Waddoups, who was appointed by President George W. Bush, wrote a 91-page decision that reflects — and reflects upon — the nation’s changing attitude toward government regulation of personal affairs and unpopular groups. The Supreme Court supported the power of states to restrict polygamy in an 1879 decision, Reynolds v. United States.
Judge Waddoups made clear that the Brown case was not an easy one for him, writing, “The proper outcome of this issue has weighed heavily on the court for many months.” He noted the shifts in the way the Constitution has been interpreted over the past century to increase protection for groups and individuals spurned by the majority.
“To state the obvious,” Judge Waddoups wrote, “the intervening years have witnessed a significant strengthening of numerous provisions of the Bill of Rights.” They include, he wrote, enhancements of the right to privacy and a shift in the Supreme Court’s posture “that is less inclined to allow majoritarian coercion of unpopular or disliked minority groups,” especially when “religious prejudice,” racism or “some other constitutionally suspect motivation can be discovered behind such legislation.”
The challenge to the law was brought by Kody Brown, who, along with his four wives and 17 children, stars in “Sister Wives,” the reality television show. The family argued that the state’s prohibition on cohabitation violated its rights to privacy and religious freedom. The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.
The judge cited the decision in Lawrence v. Texas, the 2003 Supreme Court case that struck down laws prohibiting sodomy. He quoted the majority opinion by Justice Anthony M. Kennedy that stated the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”
In a statement, Mr. Brown said he and his family were “humbled and grateful for this historical ruling from the court today.” He noted that “many people do not approve of plural families,” but “we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.” ...
We all have a body domination sadomasochist (BDSM) on our holiday gift list, right? Whether you’ve got a truly close friend or a family member who shares too much, there’s a perfect gift for those on the kinky side of things, and it’s crafted right here on the Central Coast.
Tom Douvia, a third-generation master carpenter, has worked for years as a professional contractor. But even after a full day’s work, he would find himself in his home workshop.
“When the economy took its toll on the housing market and construction industry, it put a lot of struggle on tradesmen, including myself,” he wrote in an e-mail interview. “I decided I could either start selling all the tools that I’ve worked so hard to collect over the years, or turn my woodworking hobby into a business, and that’s what I did.”
With a head full of ideas, Douvia went to look up plans online for a sawhorse for his workshop. That was when he saw a plan for bondage furniture, and everything clicked. His first spanking table sold the first day he posted it on eBay.
“I’ve been designing and building BDSM furniture now for over a year,” he said. “I pay particular attention to detail on every project I create; I want people to have that ‘wow’ factor when they receive their piece.” ...
"Open relationships are becoming so common that when singer Robin Thicke gripped Lana Scolaro’s barely covered butt at a VMA afterparty at 1OAK last month," the tabloid wrote in October, "his indiscretion reportedly didn’t get him into trouble with his actress wife Paula Patton."
But if open relationships are becoming more common -- or, in any case, more visible amongst celebrities -- Tamara Pincus, a D.C.-based therapist with a practice advertised as "psychotherapy for the open-minded," says there's still a long way to go before polyamory goes fully mainstream.
Pincus, who hosts a monthly discussion group for people who are interested in, as she puts it, "consensual non-monogamous relationships," recently reached out to a group who might not realize they're interested in these relationships: She published a primer on polyamory aimed at clinical social workers.
That paper is behind a paywall, but here's a similar paper published earlier in the Greater Washington Society for Clinical Social Work's newsletter. Both start similarly -- here's the beginning of the new one:
Polyamory is the practice, desire, or acceptance of having more than one intimate relationship at a time with the full knowledge and free consent of everyone involved. (see Wikipedia) In our culture, monogamy is generally seen as the only viable form of romantic relationship. Many people have never even heard of the concept of polyamory and often when they do come across polyamorous people they believe that their relationships are fundamentally and morally inferior to monogamous relationships.
For some, being polyamorous is an identity that they use to describe themselves along with their gender and sexual orientation. When a polyamorous client experiences this form of prejudice in therapy it can be highly damaging and cause them to quit therapy without addressing the needs which brought them in. Often if a therapist seems too closed off or if the client has too much shame their sexuality the client will not bring up their poly lifestyle or identity in therapy.
HuffPost caught up with Pincus to find out more. (This interview has been lightly edited for space and clarity.)
Why don't we start with you telling me about the paper you wrote -- what is it about, and who is it for?
It was a paper for social workers and psychotherapists about polyamory. Specifically giving them information on what would be good information to have in working with polyamorous clients.
Currently, there is not a lot out there for social workers about polyamory. A lot of them have never heard of it or think that it only happens when a couple is not doing well but not ready to break up. They don't understand the concept of poly identity and why people choose polyamory aside from a desire to have sex with more than one person.
This can lead to marginalization. A lot of poly clients in therapy don't come out to their therapists which means they don't work on a lot of the issues that come up. Also often when they do come out they feel judged by their therapists or misunderstood.
Often even the most well-meaning therapists will not understand polyamory so clients will end up spending their time educating their therapists which is not a service they should necessarily have to pay for. ...
Bondage, discipline, domination, submission, sadism and masochism (BDSM) are occasionally practiced by 5-10 percent of Americans, according to a report by the Kinsey Institute.
“Human sexuality helps us to recognize what makes us feel good. It’s about learning about one’s sexuality,” said psychology professor Gidget Brogdon at an organized BDSM panel for her Human Sexuality class Friday. “This panel shows that there are a lot of different ways to explore sexuality.”
The panel consisted of four BDSM professionals ranging from a CSUN alumna, a former preacher, a retired school teacher and an adult entertainer. In the fall semester alone, the four panelists have participated in 20 panels at several universities and have presented BDSM panels at CSUN every semester for the past five years.
When the group of attendees were asked what BDSM was, words such as leather, chains, whips, pain and even plugging were yelled back at the panelists without hesitation.
The panel described that practitioners of BDSM have a unique vernacular, some emphasized more than others. Panelist Diana “Ms. Diana” Dee, president of Star Power Unlimited, refers to herself as a “dom.” A dom, short for dominant, is a person who exercises control during sex.
“One of the nice things about being a bitch is you have people doing things for you…I believe in hurting you not harming you, I’ve never sent anyone to the emergency room,” she said.
Dee added that she has no reservations when it comes to a sub’s (person that gives up control) sexual orientation, gender identity or background.
“Any warm bodies that want me to beat them are welcome,” Dee said.
Students had an opportunity to ask the panelists questions about the multitude of BDSM activities that had them intrigued. One student asked about blood sports, one of the many unconventional sex acts categorized under BDSM.
“Blood sports are any games that involve blood, piercings, cutting. Blood is part of energy and it’s primal. Blood is part of the interaction,” Dee said.
The panel also acknowledged that those who practice BDSM are not all alike and that like anything else, one’s sexual desires are based on preference. For example, the panel emphasized the fact that not everyone who practices BDSM enjoys blood sports, leather or bondage.
“I think the sophistication and intelligence that each individual articulated and conveyed was extremely professional and beneficial for the entire presentation,” said Adam West, 25, a psychology major.
Panelist Count Boogie, a musical comedian and massage therapist, thought that the class was prepared and had a lot of great questions.
“They were ready so we could move past the trivial and get into the application and philosophy, and that’s always fun,” Boogie said, as he broke the sound barrier with his dragon tongue crack whip.
Raquel Cockrell, 26, a psychology major said, “I feel like I know a lot about the presentation but the question and answer (segment) is really driving it home. I think (this presentation) opens up (students’) minds and makes them more aware.”
In the The Journal of Sexual Medicine’s May 2013 issue titled “Psychological Characteristics of BDSM Practitioners,” BDSM is described as a sexual practice characterized by suppression, physical restriction, practicing role playing games, power exchange and sometimes even the administration of pain. ...
If the success of "50 Shades of Grey" tells us anything, it's that there are plenty of people fascinated by the combination of pleasure and pain. But how does one explore the world of whips, toys and bondage? HuffPost Live asks the experts.
Originally aired on December 4, 2013
Claire Cavanah@Babeland_Toys(New York, NY)Co-Founder of Babeland
Guy Sanders(New York, NY)Member of The Eulenspiegel Society
Red Phoenix@redphoenix69(Denver, CO)Author of 'Brie Embraces the Heart of Submission: After Graduation'
Susan Wright@NCSF(Phoenix, AZ)Founder of National Coalition for Sexual Freedom; Author of 'Good Girl'