Polygamy

U.S. laws and Senate hearings on polygamy

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Disclaimer:

The following essay is for general information only. Do not use it to make any personal decisions without first consulting a lawyer knowledgeable about family law in your country or state.

U.S. laws concerning polygamy:

Gregory Brower, the Arizona U.S. Attorney, said during a Senate hearing in 2008-JUL that there is no federal law against polygamy. He commented that the federal government has a number of traditional resources at its disposal to investigate polygamists, including FBI, Alcohol, Tobacco and Firearms, IRS, and other inspectors.

However, polygamy is illegal in all 50 states under state laws. ₁

Utah and Colorado have a history of largely condoning polygyny, as long as the spouses are not too public about it. Although there are tens of thousand members of various Mormon denominations currently engaged in the practice in these two states, only two persons have been charged there in recent decades. Both actively promoted polygyny in Utah, and were an major embarrassment to the state government. In 2008, Texas took action against a fundamentalist Mormon church near Eldorado. However, that action involved mainly suspicion of under aged girls being forced into polygamous marriages with older men.

State laws banning polygamy may be unconstitutional, since they are based primarily on moral grounds. In 2003, the U.S. Supreme Court issued a ruling in Lawrence v. Texas which might have some bearing on polygamy. The case involved two homosexual males who had been convicted of same-sex behavior in private. At the time, this was a criminal act in Texas. Justice Anthony Kennedy wrote for the majority stating:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government....[They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime....In our tradition the State is not omnipresent in our home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." ₂

Justice Scalia wrote that the majority Justices pretended that they have left enough freedom:

"... so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada...Do not believe it...[The majority opinion] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." ₃

He also wrote that laws against bigamy, adultery, prostitution, bestiality and obscenity were  susceptible to challenges. ₄ One possible addition to his list might have been public nudity.

The immediate effect of this ruling was to overturn anti-sodomy laws in 13 states. But the long range effects of the decision may well extend far beyond the activities of gays, bisexuals and lesbians. Justice Scalia and many other constitutional authorities have suggested that this decision makes it impossible for states to make or enforce laws criminalizing behavior, if the only basis for the law is that the activity is considered immoral by most of its citizens. In short, states can no longer legislate morality.

Justice Kennedy's statement might be interpreted as implying that American citizens have the right to engage in various behaviors "without intervention of the government " even including the choice of more than one spouse. States may no longer be able to criminalize polygyny and polyandry -- one woman marrying more than one man.

This conjecture has yet to be tested in a court. Recycling Justice Kennedy's ruling with the substitution of "polygamous" for "homosexual" might decriminalize polygamy across the U.S. However, with the recent confirmation of two new strict constructionists as Justices in the U.S. Supreme Court, a decision similar to Lawrence v. Texas which would decriminalize polygamous family structures is unlikely. In fact, it is quite possible that Lawrence v. Texas itself may be reversed during this decade.

U.S. Senate hearings into polygamy:

1995: The Senate Subcommittee on Juvenile Delinquency held hearings in Arizona on the "polygamist community impact on children." It was part of a multi-year examination of causes of juvenile delinquency. Other hearings focused on comic books and television programs. Representatives of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) were distressed because they were required to testify. According to historian Ken Driggs, members of the FLDS who testified were "unwilling participants" who suffered from a "massive loss of memory." ₅

2008: There were no congressional hearings for 53 years until the topic was revisited on 2008-JUL-24 by the Senate Judiciary Committee. The title of the hearing was: "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response." This time, the FLDS was allegedly distressed because it was not asked to testify. ₆

Senate Majority Leader Harry Reid testified on JUL-24. He drew parallels between organized crime and modern polygamists:

"I felt that this was essential that I be here. The lawless conduct of polygamist communities in the United States deserves national attention and federal action. This hearing is an important milestone in the ongoing effort to curtail their pervasive criminal behavior."

" A form of organized crime. ... I'm not saying they're the same thing as the crime syndicates that were in Las Vegas, but they engage in an ongoing pattern of serious crime that we ignore at our peril. ... "

He said that:

"These crimes are systematic, sophisticated and are frequently carried out across state lines. ... These lawless organizations must be stopped."

He believes that polygamous groups have formed a:

 "sophisticated, wealthy and vast criminal organization. ... The lawless conduct of polygamous communities in the United States deserves national attention and federal action."

Hearing testimony:

"Irregular Times" lists some highlights from the testimony:

• Carolyn Jessop, former FLDS member:

  "I am here today to inform this panel about my firsthand experiences of systematic abuse and disregard for the law within the FLDS, which leads to the isolation of the most vulnerable individuals within any community, the women and children who live without protection of laws that most Americans take for granted. The rural, small town lifestyle and the old fashioned looking clothing worn by the group should not lead anyone to overlook the fact that they have vast resources. They are experts at disregarding laws which they do not like and are equally quick to invoke laws which favor them."

  "When the FLDS enters an area it moves decisively to assume political and legal control of that community. Members vote as they are told by their leadership. Their religious leaders’ goal is to place individuals in public office who will follow the dictates of the FLDS rather than the law."

  "If a woman who was beaten by her husband called the police, she was typically told by the police officer that she was 'married to a good man and if she was obedient, there would not be any problems.' The police would not interfere with the religious teaching that gave a man the right to discipline his household."

• Dan Fischer, former FLDS member

  "The truth is much stranger and problematic than just the “novelty" of polygamy. Indeed, were several women and only one man decide to set up housekeeping in this day and age, one would think that it should hardly be worth comment, when lifestyles previously considered unusual, exotic or even deviant, are finding their place in a more open and tolerant America. However, the polygamy I’m here to talk about is for more than just unusual housekeeping arrangements. Reality: The problems caused by the FLDS leadership are unacceptable whether they were polygamous or monogamous. Too often wrongful actions occur under the smoke screen of polygamy or “religious freedom". Unfortunately, FDLS [sic] polygamy has degenerated to a cult that is far from benign. Today, it is a society with absolute rule over the lives and thought of individuals and families; a society at odds with the laws that govern outsiders including “apostates" like myself and - “gentiles" such as all of you."

• Terry Goddard, Arizona Attorney General

  "The work being done by my Office in Colorado City is not about religion, culture or lifestyle. Rather, it is about protecting women and children from domestic abuse and sexual violence; combating fraud and public corruption; enforcing civil rights laws; upholding peace officer standards, and ensuring that the rule of law is applied equally and comprehensively throughout our land." ₇

Concerns bout the hearing:

Unfortunately, the hearing appears to have only discussed polygamy as seen in fundamentalist Mormon denominations -- primarily the FLDS. Members of those groups were not allowed to testify. Also, voluntary polygamist groups were not involved in the hearing. ₁

A petition was circulated to correct these injustices. It said in part:

"We, as signers of this petition, are not seeking support of the polygamist lifestyle. We are not seeking to legalize polygamy. We are not all sympathetic to the people of FLDS Church or any of its practices. We are not all sympathetic to their position over those who have been invited to the hearing. What we are sympathetic to is the First Amendment to the Constitution of the United Sates. Indeed, we believe that the very foundation of this country, the Constitution and Bill of Rights, was created to protect all of her citizens from religious discrimination and persecution, even those we do not agree with."

"What we are asking for is that all Americans, even members of the Fundamentalist Church of Jesus Christ of Latter-day Saints, be afforded their Civil and Constitutional Rights—rights that the state of Texas conspicuously disregarded in the raid and subsequent events surrounding the YFZ ranch in Eldorado, but which are guaranteed to all citizens of the United States by our Constitution. In the impending hearing, the Senate Judiciary Committee has a moral and ethical obligation to hear the FLDS people, who are, after all, the DIRECT TARGET of the hearing."

"A legitimate investigation into the activities of the FLDS Church, or any other organized group, would include representation from those favorable to that group, and even from members of the group itself. Please help us make our country free from religious discrimination by listening to us and affording these people their rights." ₆

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Sen. Reid Says Polygamy Is 'Form of Organized Crime'," Fox News, 2008-JUL-24, at: http://www.foxnews.com/
2. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
3. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
4. Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page A1 & A19
5. Brooke Adams, "The Senate: Today and 1955," The Salt Lake Tribune, 2008-JUL-23, at: http://blogs.sltrib.com/
6. "U.S. Senate Holds Hearings On Polygamy & FLDS Thursday Without Inviting The FLDS To Testify," Upstream, 2008-JUL-21, at: http://upstreamzine.wordpress.com/
7. Rowen, "Fundamentalist Mormon Abuse: Why does it happen?" Irregular Times, 2008-JUL-25, at: http://irregulartimes.com/

Copyright © 2006 to 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2006-AUG-20
Latest update: 2008-OCT-02
Author: B.A. Robinson

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