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POLYGAMY – The “Relic Of Barbarism” That Won’t Go Away
Reprinted with permission from
the American Bar Association Section on State & Local Government Law Section
publication, “ABA State & Local Law News,” Vol. 31, No. 4, Summer 2008.
Guns bristling, state
police swarm a polygamist community, seizing
and separating hundreds of children from their mothers, under a cloud of
allegations of child abuse – that young girls are being forced to marry older
men against their will. The children are placed into foster care. Their
mothers weep and tell the media that they are being discriminated against
because of their religious beliefs. State law enforcement officials reply that
they must do all they can to protect society from a foul conspiracy designed to
enslave young women.
The
date is July 26, 1953. The place is Short Creek, Arizona. The subjects of the
raid describe themselves as “fundamentalist Mormons,” and the practice the
government seeks to eradicate once and for all is polygamy – the marriage
between one man and more than one woman.
In the immortal
words of Yogi Berra, it appeared to be “déjà vu all over again” when, earlier
this year, Texas law enforcement officials stormed the Fundamentalist Church of
Jesus Christ of Latter-day Saints (FLDS)’s YFZ (“Yearning For Zion”) compound in
Eldorado, Texas, purportedly checking out a report of child endangerment and
sexual abuse arising from that church’s polygamist lifestyle. Legal scholars
and the public await the next chapter in the saga of the strange and
uncomfortable religiously-based practice of polygamy in the United States.
In order to
understand the legal issues surrounding “the peculiar institution,” as early
Mormons described polygamy, it is necessary to have some familiarity with its
history in America.
In its 1856
national platform, the Republican Party condemned polygamy as one of the “twin
relics of barbarism” – the other being slavery – in reaction to the public
acknowledgement of its practice in 1852 by the Church of Jesus Christ of
Latter-day Saints (also known as the Mormon Church or, for purposes of this
article, the LDS Church – not to be confused with the FLDS Church). A
contentious 40 years followed, after Congress, seeking to quash the religious
practice of polygamy in the then-territory of Utah – where the main body of the
LDS Church ultimately settled, having been driven out of Illinois in the 1840s
after the murder of church founder Joseph Smith – through a series of acts,
commencing with the Morrill Anti-Bigamy Law of 1862. The law, which annulled
any act of the Legislative Assembly of the Utah Territory “pertaining to
polygamy and spiritual marriage,” was aimed specifically at the Mormons.
In 1879, in
Reynolds v. United States, 98 U.S. 145 (1879), the U.S. Supreme Court upheld
the Morrill Act, with the declaration that every civil government had the right
to determine whether monogamy or polygamy should be the law of the social life
under its jurisdiction. The Court announced its “belief/practice” test, stating
that while religious adherents may believe anything they like, they may not act
on those beliefs to the degree they violate the law:
Can a man excuse
his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances. Id.
at 167.
On
the heels of Reynolds, Congress passed the Edmunds Act of 1882 and the
Edmunds-Tucker Act of 1887, both intended to strengthen the 1862 Morrill
Anti-Bigamy Act. The Edmunds Act disenfranchised polygamists (rendered them
ineligible to vote) and declared them unable to hold public office, disqualified
any person who believed in the principle of polygamy from jury duty, declared
polygamy a felony and defined polygamous living – termed “unlawful cohabitation”
– as a misdemeanor. It also gave public officials the power to deprive Mormons
of their civil rights without a trial. The Edmunds-Tucker Act went further,
requiring that wives testify against their husbands, mandating that they be
forced to court without a subpoena and depriving women of the franchise. It
also disincorporated the LDS Church and escheated its property to the federal
government.
Shortly after the Supreme Court upheld the Edmunds-Tucker Act in Late
Corporation of the Church of Jesus Christ of Latter-day Saints v. United States,
136 U.S. 1 (1890), the LDS Church announced that its practice of polygamy would
cease, and that neither polygamy nor plural marriage would be accepted nor
taught among church members. As a condition of statehood six years later, the
Utah constitution provided that while “perfect toleration of religious sentiment
is guaranteed,” nonetheless “polygamous or plural marriages are forever
prohibited.” Utah Constitution, Art. III, Sec. 1. Currently, LDS members
anywhere found engaged in the practice are promptly excommunicated.
Nonetheless, despite massive public relations efforts on the part of the Church,
polygamy is still often associated in the public mind with the LDS Church, over
100 years since it was officially abandoned.
The
end of polygamy in the LDS Church was not the end of American polygamy, of
course. Some LDS church members refused to bend to the Church’s anti-polygamy
“manifesto” and were excommunicated or split on their own accord. These
“fundamentalists” went underground, with various communities, “clans,”
congregations or churches, each claiming the right of succession to the
authority of God with regard to polygamous marriages. The Eldorado, Texas
community of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS)
had its origins in the border region of Utah and Arizona, where the 1953 raid
took place. Members and leaders of the FLDS moved to Texas around 2004, built a
temple and isolated themselves from society.
In
the wake of the 1953 Short Creek raid, government officials have been reluctant
to prosecute polygamists for the mere fact that their lifestyle, based on
religious belief, violates the law. Most legal actions involving polygamists
have arisen in the context of child abuse prosecutions (for sexual relations
involving underage girls), welfare fraud (where polygamist wives claim
entitlement to benefits as single mothers without spousal support) or other
common-law criminal violations, such as child abuse – not solely
bigamy/polygamy. For example, FLDS prophet Warren Jeffs was successfully
prosecuted in southern Utah in 2007 for being an accessory to rape, arising from
his officiating at a marriage of an underage bride to an older male adherent to
the faith (who was not, incidentally, prosecuted for rape) – not for being a
polygamist.
The
legal issues surrounding polygamy are legion. For example, the Utah Chapter of
the ACLU adopted a position that polygamy was constitutionally protected
religious exercise, and the attorneys general of Utah and Arizona have generally
declined to enforce statutes aimed at stopping the practice. Academics have
suggested that 19th century anti-polygamy laws cannot withstand
judicial scrutiny under current First Amendment Establishment Clause precedent.
Some suggest that the right of privacy -- the foundation for striking down
abortion prohibitions and homosexual sodomy laws -- should extend to polygamy.
Others have suggested that polygamy prohibitions are outdated, given modern
society’s toleration of all sorts of cohabitation arrangements (married,
unmarried, homosexual ,etc.), that may or may not implicate state sanction or
involvement.
Polygamy has been the subject of a number of more recent cases upholding the
validity of anti-polygamy laws in the face of constitutional challenges. In
Potter v. Murray City, 585 F.Supp.1126 (D.Utah 1984), for example, a
district court upheld the firing of a police officer whose religiously-based
polygamy (two wives and five children) violated his sworn duty to uphold the
U.S. and Utah Constitutions. The officer’s employment record was otherwise
exemplary. Noting that Reynolds had never been overturned, the court
found that the “compelling state interest found in the maintenance of the system
of monogamy upon which its social order is now based” justified the
anti-polygamy provisions of the Utah constitution. The court rejected the
officer’s argument that he had a Constitutional right to privacy in his
polygamous lifestyle that precluded his termination. The court found that
Potter’s difficulties did not stem from “privately cohabitating with others,”
(which, by implication, may have been protected, although technically illegal),
but because his polygamous marital practice “was in its essential nature a
public one.” In short, Potter held himself out to the public as a felon. “To
say under such circumstances that this did not affect his value and performance
as a police officer would be unrealistic.”
In
affirming the decision, the Tenth Circuit noted that despite subsequent
clarifications of the free exercise clause of the First Amendment since
Reynolds, it was still valid. Furthermore, Utah’s interest in monogamy had
been demonstrated by its having “a vast and convoluted network of other laws
clearly establishing its compelling state interest in and commitment to a system
of domestic relations based exclusively upon the practice of monogamy as opposed
to plural marriage.” Potter v. Murray City, 760 P.2d 1065 (10th
Cir. 1985). Because “monogamy is inextricably woven into the fabric of our
society,” and is “the bedrock upon which our culture is built,” the court stated
that it could not extend the constitutional right of privacy so far that it
protected polygamous marriage.
State v. Green, 99 P.3d 820 (Utah 2004),
also upheld Utah’s anti-bigamy statutes, relying on Church of the Lukumi
Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) and Employment
Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990), to hold they were
facially neutral and had only an incidental effect on polygamist religious
practice. The court further recognized a state interest in monogamy and in
“preventing the perpetration of marriage fraud, as well as its interest in
preventing the misuse of government benefits associated with marital status.”
The court concluded that the bigamy statutes protected polygamists from incest,
sexual assault, statutory rape and failure to pay child support – crimes that
the court found were “not unusually attendant to the practice of polygamy.”
Critics of Green questioned how the court could determine that the
anti-bigamy law had only an incidental effect on polygamist religious practice
if one of its purposes was to protect polygamists from the effects of crimes
that the court associated with that practice. They also questioned how
anti-polygamy legislation could survive under changing constitutional privacy
right norms – especially as articulated in Lawrence v. Texas, 539 U.S.
558 (2003)(invalidating homosexual sodomy statutes).
The
court addressed those questions in State v. Holm, 137 P.2d 726 (Utah
2006), wherein FLDS member Rodney Holm was convicted for bigamy and unlawful
sexual conduct with a 16-year-old woman – his third (religious) “wife.” Holm
and his third “wife” had undergone a religious ceremony, which both acknowledged
did not enjoy state sanction. Without revisiting Green, the court simply
acknowledged that it had already held that Utah’s anti-bigamy statute was a
neutral law of general applicability, and further noted that it complied with
the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, and the Religious
Land Use and Institutionalized Persons Act of 2000, 114 Stat 804. As to the
privacy analysis, the court concluded that the type of fundamental liberty
interest recognized in Lawrence simply did not extend to polygamous
conduct. While the intimate acts engaged in by adult homosexuals were private,
polygamy, in contrast, “implicates the public institution of marriage … .” The
court went on to state that “the formation of relationships that are marital in
nature is of great interest to this State, no matter what the participants in or
the observers of that relationship venture to name the union.” Part of this
interest arises from the fact that by the issuance of a marriage license, “the
State becomes a third party to the marital contract.” Thus, the state has a
substantial interest in criminalizing an “unlicensed second marriage.”
Accordingly, the court found neither constitutional equal protection concerns
nor any infringement of the constitutional right of association in the Utah
bigamy statute.
In a
strong dissent as to the bigamy conviction, Chief Justice Christine Durham
argued that the state’s interest did not extend to those who enter a religious
union with a second person but who do not claim to be legally married. She
compared their situation to those of the “commonplace” cohabitation of other
unmarried couples – even those in which one of the partners may still be legally
married to someone else, but who are not prosecuted for bigamy. Justice Durham
asserted that the only difference among these situations was that
religiously-motivated polygamists engaged in a religious ceremony. Their
marital status would be indistinguishable, however. The imposition of criminal
penalties on those who deviate from the state’s accepted (monogamous) social
structure for religious reasons did not further any interest in protecting
marriage, according to Justice Durham. To the contrary, she reasoned, marriage
was not implicated at all in a relationship in which neither party claimed a
state-sanctioned union.
Finally, in August, 2007 the Tenth Circuit issued Bronson v. Swensen, 500
F.3d 1099 (10th Cir. 2007), which involved a facial challenge to
Utah’s anti-bigamy statute based on privacy grounds. In Bronson, the
plaintiffs, an already married polygamist, brought suit after having been
denied, based on the anti-bigamy statute, an additional marriage license – a
situation different from Holm, where no one sought sanction for a second
marriage. The court held that the plaintiff lacked standing to bring the
action, since he could not demonstrate any credible “fear of criminal
prosecution” in light of published accounts by the Utah Attorney General that he
did not intend to prosecute polygamy per se, but rather focus law
enforcement efforts on crimes within polygamous communities involving child
abuse, domestic violence and fraud.
At
this point, then, the state of the law as it pertains to polygamy is unsettled.
Although statutes designed to stifle the practice have been upheld consistently
since the 1870s, it is clear that polygamy – especially religiously-based
polygamy – is not going to go away. While attorneys general claim the right to
enforce polygamy laws, they have been reluctant to do so without the presence of
some other factor, such as child endangerment, sexual abuse or welfare fraud.
Meanwhile, the actions of police in tearing children away from their mothers,
while elected officials make solemn pronouncements on the evils of a religious
organization that abuses and enslaves young females through polygamous practice,
leave observers with the haunting feeling that they’ve seen this all before –
and will no doubt see it all again.
Randall K. Edwards,
former chief deputy City Attorney in Reno, Nevada, is currently in private
practice in Salt Lake City, Utah. |
