Legislatures. Back to the future and other diversions?
A scene from the early 1970s Wyoming legislatures at the Hitching Post? See below.
Former Wyoming Legislator Tom Lubnau, who was truly one of the great ones in the old school Wyoming way, has taken up writing columns for The Cowboy State Daily. That's to the CSD's credit and shows its effort to become a real electronic journal, something that's impressive considering it was set up as a right wing organ. Lubnau is a conservative Wyoming Republican, but a conservative Wyoming Republican, something that's becoming increasingly rare.
Or maybe not.
He's not afraid of poking at the wolverine.
He recently wrote this interesting item:
Tom Lubnau: Legislating Private Parts Is Popular This Legislative Session
This op ed is written from the point of view that virtually defined Wyoming Republicans for my whole adult life, up until the Obama/Trump Era, when things began to get really radical in the legislature.
His article is illuminating and I'm linking it in for several reasons.
One of those is that Lubnau give a really nice discussion of the law as it used to be, on some of the same topics that I addressed here:
Until Death Do Us Part. Divorce and Related Domestic Law. Late 19th/Early 20th Century, Mid 20th Century, Late 20th/Early 21st Century. An example of the old law, and the old customs, being infinately superior to the current ones and a call to return to them.
I note this, in particular, from his article:
I guess in thinking about it, I came of age in the Disco Era and that's the law I'm familiar with. Lubnau is right, the GOP in this state, from the 70s on, really didn't care what you were doing, with whom, behind closed doors, as long as you kept your business to yourself, and it also didn't really care if your marriages broke up, etc., as a result of it, or anything else. I'd assumed it had long been that way, but as Lubnau's quote from the Wyoming Compiled Statutes, 1910, shows, that's not the case.
I looked it up in the actual 1910 Code, and Lubnau was a little off. He must have been reading the 1970s vintage codification, or miscited it. The provison, and those otherwise cited in this thread, were still there in 1957, the last version of the by then much expanded Wyoming statutes I had handy, and they were almost certainly there up until the early 1970s. In 1910, it was a different statutory section that the cited number (and the number was different in 1957), but here, right from the 1910 book, is what it states.
This is in a section of the statutes on offenses to public morality, and in looking at it, I found that something else I had thought to be illegal, but couldn't later fine, was in fact illegal, that being cohabitation without being married.
So, in my earlier statement that I had thought it was illegal, was in fact correct. It was illegal.
Seduction of minors, keeping in mind that the age of majority, was a crime, but not quite in the fashion modern statutes provide for it, which would now be a species of rape. At the time, seduction of underage women, at least "older" ones, was a misdemeanor, although this raises interesting questions given that women could clearly marry at 18, or younger, at the time. This relates back to the earlier discussion we had, in the threat noted above, regarding Seduction at law.
At the same time, however, Section 5803 of the 1910 Code provide that rape, conventionally defined, was a felony, as well as having carnal knowledge of a female under age 18. The dual age of majority, long a feature of Wyoming's law, was apparently already there. Particularly notable, however, is that the law didn't distinguish between rape and statutory rape, they were the same.
It did distinguish between male and female. A man could not be a victim of rape under the statute, although that would have constituted assault in any event.
Lubnau goes on in his article to comment:
It seems, now, there is a trend to sponsor legislation to invite the State of Wyoming back into the bedroom.One has to wonder if regulating bedroom conduct is the pressing issue of the day, or if there is some other motive such as creating a campaign issue for the election season, that is driving the legislation. In other words, how many people do you meet every day whose biggest concern is lack of regulation of private parts?
Following that, he takes a look at HB 50 (What is a Woman Act) HB 68 repealing the obscenity exception for school, college, university, museum or public library activities or in the course of employment of such an organization, HB 88 making it illegal to “publicly communicate” obscene material, Democratic HB 76, making it illegal to interfere with a woman’s right to an abortion if the fetus is not viable*, or in cases of rape, incest or threat to the life of the mother., HB 137 requiring a pregnant mother to receive an ultrasound prior to receiving a chemical abortion “in order to provide the pregnant woman the opportunity to view the active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible.”
And that's probably not all of these.
They all did fail, fwiw, most failing to secure introduction. The reasons vary, including procedural, but it might actually show that more of the old style, post mid 1970s Republicans remain in the legislature than might be supposed. For that matter, however, it might also show that a lot of the populist legislators everywhere, at the state and Federal level, aren't hugely familiar with the legislative process. In Wyoming trying to advance a bunch of these bills in a budget session, after declaring that you had the strength to advance them, was likely a mistake.
The obscenity one is interesting, as the 1910 Code had a section on that, providing:
The failed proposed statues state:
HOUSE BILL NO. HB0068Obscenity-impartial conformance.Sponsored by: Representative(s) Hornok, Angelos, Bear, Neiman, Ottman, Pendergraft, Penn, Rodriguez-Williams, Strock, Trujillo and Ward and Senator(s) IdeA BILLforAN ACT relating to crimes and offenses; repealing an exception to the crime of promoting obscenity regarding possessing obscene materials for specified bona fide educational purposes; and providing for an effective date.Be It Enacted by the Legislature of the State of Wyoming:Section 1. W.S. 6-4-302(c)(ii) is repealed.Section 2. This act is effective July 1, 2025.
And:
HOUSE BILL NO. HB0088
Public display of obscene material.
Sponsored by: Representative(s) Ottman, Davis, Hornok, Penn and Strock
A BILL
for
AN ACT relating to crimes and offenses; prohibiting public communication of obscene material; providing a definition; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1. W.S. 6‑4‑301(a) by creating a new paragraph (vi) and 6‑4‑302(a)(iii) are amended to read:
6‑4‑301. Definitions.
(a) As used in this article:
(vi) "Publicly communicate" means to display, post, exhibit, give away or vocalize material in such a way that the material may be readily and distinctly perceived by the public at large by normal unaided vision or hearing.
6‑4‑302. Promoting obscenity; penalties.
(a) A person commits the crime of promoting obscenity if he:
(iii) Knowingly disseminates or publicly communicates obscene material.
Section 2. This act is effective July 1, 2024.
The abortion bills, of which we have now had a variety, are interesting too, as I ran across the original 1910 statutes on that, which may well have been modified before 1973 (I don't know). Abortion was still illegal in 1973, I just don't know if the exact same text remained until then. In 1910, the law provided:
§ 5808. Attempted miscarriage.
Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be preg- nant , any drug , medicine , or substance whatever, with intent thereby to procure a miscarriage of such woman ; or with like intent uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall if the woman miscarries or dies in consequence thereof , be imprisoned in the penitentiary not more than fourteen years .
§ 5809. Woman soliciting miscarriage . Every woman who shall so- licit of any person any medicine , drug or substance or thing whatever , and shall take the same , or shall submit to any operation or other means whatever , with intent thereby to procure a miscarriage (except when necessary for the purpose of saving the life of the mother or child), shall be fined not more than five hundred dollars and imprisoned in the county jail not more than six months ; and any person who , in any manner whatever, unlawfully aids or assists any such woman to a violation of this section , shall be liable to the same penalty.
I'm not going to comment on any of these, but I'm only noting that this provides a really interesting example of the evolution of the Legislature, and for that matter a Western legislature that's been Republican controlled the entire time. Republicans of the 70s and 80s would have a hard time recognizing the party today if they hadn't been there for the evolution. I suppose that's true of the Democrats then and now as well.
I'm also noting it as I earlier quixotically argued that the heart balm statutes and accompanying provisions ought to be restored. Lubnau has gotten into the weeks and found one of the statutes of that era that I didn't address, §7206 of the 1910 code.
Going back to that code, a fair amount of it would be unconstitutional today, as the United States Supreme Court had found that the sodomy provisions are contrary to some vague unwritten stuff in the penumbra of the Constitution having to do with privacy. "Privacy" doesn't actually appear in the text of the Constitution. The last crime noted, and the one about animals, is probably still capable of being illegal, and actually the last one, which would have to do with adults in relation to minors is probably actually still illegal elsewhere. To some degree, with this statute, you have to read between the lines, but to some extent you do not. The law basically criminalized anything contrary to nature, and it was pretty clear that there was an accepted concept of what nature, in this context, meant. Frankly there still really is, although now, save for minors and "beasts" we license it societally.
The provisions on rape and abortion could probably have just been left alone, keeping in mind that abortion was legalized under Roe, and then taken back to the state under Dodd's. Had that been all left untouched, the law would arguably have been clearer now than it is. Interestingly, the statute drafters of that era tended to use an economy of words which tended to make their intent quite clear.
What about the statutes pertaining to "heart balm" and, well, sex?
Today's legislature of the Freedom Caucus variety, all over the country, clearly looks backwards to restoring society to what they imagine it was. This actually shows what it was. And not just that, but the statutes regarding divorce as well.
Let's look once more.
"Shacking up" was illegal. Given the present state of Constitutional Law, I doubt it could be made illegal (I'm quite certain it couldn't be). Would the social warriors be game for trying?
This concept, quite frankly, underpins everyone other one regarding marriage. It was designed to prevent what the 1910 statues called "bastardy" and the burden it created on society, and it grasped what marriage really was. For that reason, quite frankly, I'd be for its return (although as stated, I don't think it can be under the current interpretation of the Constitution. Those populist right-wingers who would not go that far, probably ought to reconsider their positions on things
Those who would be horrified by such a proposal, and frankly that's probably most people now, ought to reconsider their support for populism, if they are populists.
And then there is this:
Would the legislature of today go that far? Again, this is clearly unconstitutional under the current law, and it would in fact outlaw homosexual conduct, as well as a bunch of non-homosexual conduct. Presumably no modern legislature would be comfortable with what the pre 1970s Wyoming legislature, and pre 1970s Wyoming society, was in this era. Probably nobody ought to be, as this is really invasive.
What about divorce, the subject that the other thread was sort of on, and this one sort of is on as well, and which again gets to the heart of the topic.
Ealier in the state's history, the legislature barred remarriage within a year, which is signficant if we consider that cohabitation without being married was flat out illegal. The 1910 statutes provide:
§ 3951. Remarriage prohibited within one year .
During the period of one year from the granting of a decree of divorce , neither party thereto shall be permitted to remarry to any other person . Any person violating the provisions of this section shall be deemed guilty of a mis- demeanor , and shall be fined in any sum not less than twenty - five dollars nor more than one hundred dollars , or be imprisoned in the county jail not exceeding three months , in the discretion of the court.
Frankly, I'd think this a worthwhile provision and it likewise, like the staute on cohabitation, ought to be restored.
Going from there, I'd note that in 1910 the statutes on dissolving marriages started off iwth annullement, which is now an afterthough in the statutes. It wasn't theen, and was relatively extenisvely addressed, indicaditng that hte drafteres thought that a more likely event, potentially, then divorce.
Divorce required cause, those being:
§ 3924. Causes for divorce .A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties , or one of them reside , on the application of the aggrieved party by petition , in either of the following.cases :First - When adultery has been committed by any husband or wife .Second - When one of the parties was physically incompetent at the time of the marriage , and the same has continued to the time of the divorce .Third - When one of the parties has been convicted of a felony and sentenced to imprisonment therefor in any prison , and no pardon granted , after a divorce for that cause, shall restore such party to his or her conjugal rights .Fourth - When either party has wilfully deserted the other for the term of one year .Fifth - When the husband or wife shall have become an habitual drunkard .Sixth - When one of the parties has been guilty of extreme cruelty to the other .Seventh - When the husband for the period of one year , has negected to provide the common necessaries of life , when such neglect is not the result of poverty, on the part of the husband, which he could not avoid by ordinary industry .Eighth - When either party shall offer such indignities to the other , as shall render his or her condition intolerable .Ninth - When the husband shall be guilty of such conduct as to constitute him a vagrant within the meaning of the law respecting vag- rancy .Tenth - When prior to the contract of marriage or the solemnization thereof, either party shall have been convicted of a felony or infamous crime in any state , territory or county without knowledge on the part of the other party of such fact at the time of such marriage . Eleventh - When the intended wife at the time of contracting mariage, or at the time of the solemnization thereof shall have been pregnant by any other man than her intended husband and without his knowledge at the time of such solemnization . [ R. S. 1887 , § 1571 ; R. S. 1899 , § 2988. ]
Evidence was required:
§ 3947. Corroborating evidence required .
No decree of divorce, and of the nullity of a marriage, shall be made solely on the declara- tions , confessions or admissions of the parties , but the court shall in all cases require other evidence in its nature corroborative of such declarations , concessions or admissions . [ R. S. 1887 , § 1597 ; R. S. 1899 , § 3011. ]
§ 3948. Proof of adultery insufficient when .
In any action brought for divorce on the ground of adultery , although the fact of adultery be established , the court may deny a divorce in the following cases:
First - When the offense shall appear to have been committed by the procurement , or with the connivance of the plaintiff .
Second - When the offense charged shall have been forgiven by the injured party and such forgiveness shall be proved by express proof , or by the voluntary cohabitation of the parties with the knowledge of the offense .
Third - When there shall have been no express forgiveness and no voluntary cohabitation of the parties but the action shall not have been brought within three years after discovery by the plaintiff of the of fense charged . [ R. S. 1887 , § 1598 ; R. S. 1899 , § 3012. ]
Provisions were provided for to restrain and examine the husband during divorce proceedings, but not the wives.
Again, the old law here would work, or at least it would with modification. Would anyone be bold enough to suggest it be restored.
I doubt it, and therein lies an element of built in hypocrisy of the modern populist social warrior. To really get at the core of this, you have to get to the core of it. But hardly anyone is willing to even contemplate what that means.
Lubnau has pointed out that, at one time, the laws were much more restrictive in conservative Wyoming. In the 1970s, the Republican Party, not the Democrats, radically liberalized them. But not only did the US become much more liberal, all society did as well, for good or ill (probably mostly for ill). Many of those who carry the banner for a return to what they regard as having been great aren't prepared to go back to what that really meant, but like Dr. Zhivago states in the novel, an operation cutting out corruption, if that's what you are really doing, is a deep operation.
Put another way, you can't really address these social issues unless you are prepared to go to the very core of them, and that would mean addressing male/female, male/male, female/female "adult" relationships at their core. The only thing that the populist far right is really willing to do is to address homosexuality in its various expressions. But that's relatively rare, and if you aren't willing to go further, and say that those relationships outside of marriage are wrong, and that you marry once and for life, well then, you really are just pointing fingers.
Our perfunctory favorite couples again.
Footnotes:
* This bill provides an example of why the Wyoming Democrats go nowhere. There's no reason for the Democratics here to be the party of death, like they insist on being elsewhere, and bills like this keep moderate Republicans who would cross over from doing so. This is particularly the case as this bill stands less than 0 chance of being introduced.
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