Written by Drew
People have been asking why polygamy is illegal in Utah and why the government cares if consenting adults want to build a family together. To be honest, unless you’re a mainstream Mormon living in Utah, there is no compelling answer but I’ll offer the best explanation I can by explaining a little bit of history surrounding Utah polygamy laws.
The original lawsuit that made polygamy “illegal” with the support of the U.S. constitution was decided in 1878: Reynolds vs. the United States. TheReynolds court essentially ruled that polygamy was inherently abusive but it never bothered to (1) receive any evidence to show that polygamy was abusive or (2) review any allegations that polygamy was inherently abusive. Based on Judeo-Christian values, the court essentially found that it was so and voila – judicial magic – states across America were allowed to make polygamy illegal under the U.S. Constitution because polygamy is inherently abusive. It was labeled as a “twin relic of barbarism” so we got to wear the badge of being barbaric to boot. Sadly, that isn’t a sarcastic commentary – that’s pretty much how it went down.
The tradition has continued in Utah. When Kody Brown’s family (from TLC’s Sister Wives) sued the state of Utah, the state of Utah failed to bring any evidence showing that polygamy was inherently harmful when they argued the case on summary judgment. I watched the hearing live. I was shocked. When asked if the state had any evidence showing polygamy was inherently harmful, the attorney representing the State of Utah said that he’d be happy to get some and started spouting off about abuses in the FLDS community. Polygamists in the audience metaphorically rolled their eyes in frustration. The FLDS community is the single most radical brand of fundamentalism and most fundamentalists are opposed to FLDS religious practices because … well, we fundamentalists find FLDS practices abusive. Think of it like this: saying FLDS fundamentalists represent polygamy in general is like branding all Muslims as members of Al-Qaedaj or branding all teen African American males as violent gang members. It’s a bigoted, broad sweeping brush that is inherently unfair. In the end, the State of Utah brought zero evidence showing polygamy was inherently abusive and yet, that is implicitly the foundation the law hangs upon. The law was ultimately struck down as unconstitutional on several grounds (7 were addressed by the court as I recall) and then that ruling was reversed on the grounds that Kody was never really harmed by the law so he lacked “standing” to appear in the court in the first place.
When HB099 was presented to the Utah legislature, the bill’s sponsor had one person testify of her abuses in polygamist groups. Turns out, she fabricated her testimony. Victim’s advocacy group representatives testified that laws criminalizing polygamy were actually encouraging abuses by creating a culture of underground polygamy where victims were afraid to testify against abusers for fear of legal retribution and blackmail. Compromises to the bill were offered but the sponsor noted that his constituent (whom was confirmed to be the LDS Church in various other meetings) insisted that polygamy remain a felony or he needed to withdraw the bill. Shortly thereafter, he withdrew the bill when a reduction in punishment was suggested unless abuse was present when charges were brought. Ten minutes before the Senate session was finished, Utah’s attorney general showed up to personally advocate for the bill. Despite the fact that my law firm personally sent a letter to each representative and senator explaining that the law was unconstitutional on several grounds and despite the fact that my firm personally sent each of them a proposed bill that corrected each of those unconstitutional laws while still addressing anti-polygamy concerns, the bill passed by a single, changed vote. Did I mention that the bill’s sponsor went on public record on a number of occasions saying that he wanted polygamists to know that they were “apostates” and that he was offended that we were “hijacking his religion?” Really. I’m not kidding. He said this to newspaper reporters on multiple occasions. With his primary constituent being the LDS Church, doesn’t this sound just a tad bit like religious persecution?
In short, knowing the law is unconstitutional and without any substantive evidence that polygamy is inherently abusive, the State of Utah continues to treat polygamists as criminals. Moreover, HB099 enhanced the penalty from 5-10 years in prison and makes plural wives subject to imprisonment as well. You be the judge: should Angela have Lenny taken from her and raised by the state while she spends 5-10 years in prison for living her religion? for choosing an alternative lifestyle? If you don’t think so, you just may live outside of the State of Utah! Several Utahns have justified the law by pointing out cases of abuse within polygamist families but they fail to present any evidence that the percentage of abuses in polygamist communities are any higher than other groups of people. For that matter, they don’t even know how many polygamists there are because many of them remain in hiding out of fear of the law! But somehow, some instances of abuse prove that all of us are inherently abusive. I wonder how the LDS Church would react if the courts found Mormonism felonious because a larger percentage of child abuse in Utah came from LDS families rather than from, say, the Amish. Yes, I’m making up that “statistic” but I’m making it for a point. The logic is unjustifiable and it wouldn’t fly if it was used against any other group of people in this country.
Detractors may notice that Canada has anti-polygamy laws and a reviewing court there determined that polygamy was inherently abusive after investigating the matter thoroughly. I respond to that in two different ways: (1) all of the findings of that court and all of the evidence I saw presented in that case dealt with the FLDS and (2) none of the findings of that court bothered to look at Christian polygamy, Muslim polygamy, asian non-faith-based polygamy, African polygamy, or any other numbers of polygamist lifestyles across the globe. The Canada court focused on the most radical group of Mormon polygamists who have a long history of abuse and determined that now, all polygamists, regardless of their stripes, are abusive. If a court found that all Muslims were terrorists because some Muslims belonged to Al-Qaeada, the media would be in an uproar fighting for their civil rights. In Canada or Utah, these things are glossed over as normal.
Legislators claim they are enacting these laws to protect women and children from abuse. That’s pretty rhetoric. It sounds warm and fluffy to my ears. But there are three problems with this claim. One: there has never been a time when evidence was collected and argued to determine whether or not polygamy is inherently abusive. Two: there are already plenty of laws addressing most every abusive situation imaginable. Three: the State of Utah does not have a track history of prosecuting abusers. It has a track history of prosecuting people who are vocal about the lifestyle, not people who are known to be abusive. I personally know of recent allegations of abuse brought against a polygamist leader that were passed on to the governor by one of the leader’s followers. My friend and contact informs me that the governor’s response to requests for an investigation were answered with “we already passed HB099.” In other words: “we don’t really care about that.” During congressional hearings, various polygamists were mentioned by name as known and notorious abusers and yet, they haven’t been prosecuted. Prosecutions even among the FLDS are few and far between. So, when I hear the law is to protect women and children from abuse, I raise my eyebrows with a generous dose of skepticism. Tell me again about that swampland you have for sale …
I, along with many other fundamentalists, would like to call upon the State of Utah to make a point to prosecute child abusers instead of people trying to live their religion. If a man molests his children, by all means, throw him in jail. If he beats his children, by all means, put him in jail (and/or rehabilitate him if circumstances warrant it). If a man stops his daughters from getting an education or driver’s license, by all means fine him and force him to change his ways or face worse punishments. But if a man loves more than one woman and all of their children regardless of which mother they came from and all of those adults live that way consensually because of their religious convictions – leave them alone!
There you have it. Polygamy Bigotry 101: How to Oppress Marginalized Religious Groups in Utah
A sidenote on Reynolds
Some scholars have noted that this case also brought about state regulated marriages as well – that is, before Reynolds, people went to a church to get married and the government had nothing to do with it. This is why many Mormon fundamentalists don’t care about legal marriages. They feel their marriages are sanctioned by God so they don’t look for or care about state sanctioned marriages (as a whole). Most fundamentalists don’t even want polygamy to be legal – they just want it decriminalized.
I have a friend who was investigating Mormon fundamentalism. In a divorce action, she was ordered NOT to teach her children any of her religious beliefs and was affirmatively enjoined to teach them about Santa Clause. I fought a case where a guardian ad litem requested supervised visitation on the basis that my client was a polygamist despite there being any allegation of abuse. I know of another divorce where the mother’s attorney argued that the father should only have supervised visitation because he lived in a community of polygamists and since there were several felons in his neighborhood, it was unsafe for the children to visit. I could probably list a couple dozen similar stories.