Polygamy in the United States

Laws covering bigamy throughout the United States.^[1]
     Misdemeanor      Felony      All forms of cohabitation outlawed

Polygamy became a significant social and political issue in the United States in 1852, when The Church of Jesus Christ of Latter-day Saints (the Mormon Church) made it known that a form of the practice, called plural marriage, was part of its doctrine. Plural marriage had been introduced by the Church in 1843 in Illinois, before the largest portion of the Latter Day Saint population moved and settled in Utah and other areas of the west beginning in 1847. Opposition to the practice by the United States government resulted in an intense legal conflict, and culminated in LDS Church president Wilford Woodruff announcing the church's official abandonment of the practice on September 25, 1890.^[2] However, the practice of polygamy continues amongst some American Muslims^[3] and breakaway Mormon fundamentalist groups practicing it in the western United States. The Church of Jesus Christ of Latter-day Saints terminated the practice of plural marriage in the 19th century, and excommunicates those members who adopt the practice.

The Model Penal Code recommends that state legislatures write their laws so that polygamy is classified as a felony. However, some state laws are much more lenient. Despite the laws, polygamy is rarely prosecuted unless in conjunction with another crime such as child abuse.^[4][5]

Polygamy defined

Polygamy is defined as the practice or condition of having more than one spouse at the same time, conventionally referring to a situation where all spouses know about each other. In contrast to bigamy, where two or more spouses are usually unaware of each other.^[6][7][8]

Polygamy and bigamy laws in the US

Bigamy is the criminal act of attempting to legally marry someone while a former marriage remains unresolved.^[9][10][11]

Being legally married to more than one person at the same time is now illegal in all states and territories of the US. The crime is punishable either by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense.^[12]

Interestingly, the Model Penal Code (section 230.1) defines bigamy as a misdemeanor and polygamy as a felony. Having more than one spouse at the same time gets bumped to a felony if it is done "in purported exercise of a plural marriage..." According to Joel Feinberg in Moral Limits of the Criminal Law: "Righteously, flaunting ones illicit relationships, according to the Code, is apparently a morally aggravating circumstance, more punishable than its clandestine and deceptive counterpart."^[13]

The Model Penal Code allows people to use an honest and reasonable but mistaken belief that they are only married to one person as a defense against a charge of bigamy. But many US courts (e.g., Turner v. S., 212 Miss. 590, 55 So.2d 228) treat bigamy as a strict liability crime. Meaning that in some jurisdictions you can be convicted of a felony even if you reasonably (but wrongly) believe that you are only married to one person. For example, if a person has the mistaken belief that their previous spouse is dead or that their divorce is final—they can still be convicted of bigamy if they attempt to marry a new person.^[14]

Model Penal Code 230.1 Bigamy and Polygamy

The following is the section of the Model Penal Code that deals with bigamy and polygamy:

MPC 230.1 Bigamy and Polygamy

i. Bigamy. A married person is guilty of bigamy, a misdemeanor, if he contracts or purports to contract another marriage, unless at the time of the subsequent marriage:

1. The actor believes that the prior spouse is dead; or

2. The actor and the prior spouse have been living apart for five consecutive years throughout which the prior spouse was not known by the actor to be alive; or

3. A Court has entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the actor does not know the judgment to be invalid; or

4. The actor reasonably believes that he is legally eligible to remarry

ii. Polygamy. A person is guilty of polygamy, a felony in the third degree, if he marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. The offense is a continuing one until all cohabitation and claim of marriage with more than one spouse terminates. This section does not apply to parties of a polygamous marriage, lawful in the country of which they are residents or nationals, while they are in transit through or temporarily visiting this State.

iii. Other Party to Bigamous or Polygamous Marriage. A person is guilty of bigamy or polygamy, the case may be, if he contracts or purports to contract marriage with another knowing that the other is thereby committing bigamy or polygamy. ^[15]

History of polygamy

Polygamy in the United States has a long, though shadowy history. Some Native American tribes practiced polygamy^[16] and European mountain men sometimes took native wives and adopted the practice.^[17] Some tribes seem to have continued the practice into the 20th century.^[17] Among Americans of European descent, the practice of polygamy is most commonly associated with early Mormons who took the practice to the Utah Territory in the mid-19th century.

Present-day Polygamist Groups

There are several religious groups in the United States that actively promote the practice of polygamy, or plural marriage. Most (but not all) claim some historical connection to early Mormonism, and frequently call themselves "Mormon Fundamentalists" or "Fundamentalist Mormons," a term that members of the Church of Jesus Christ of Latter-day Saints (mainstream Mormons), who do not practice polygamy, often object to.^[18]

Members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), one of the largest modern polygamist sects, practice polygamy in arranged marriages that has sometimes involved placing under-aged girls with older men.^[19] Many FLDS members live in the twin communities of Hildale, Utah, and Colorado City, Arizona, about 350 miles southeast of Salt Lake City, with other communities in Texas and other areas of the North American west. The leader of the FLDS Church is currently unknown. On November 20, 2007, after the conviction of Warren Jeffs, attorneys for Jeffs released the following statement: "Mr. Jeffs resigned as President of the Corporation of the President of The Fundamentalist Church of Jesus Christ of Latter-Day Saints, Inc."^[20] This statement does not address his position as prophet of the church, but merely addressed his resignation from his fiduciary post as president of the corporation belonging to the FLDS Church. Many press accounts^[21][22][23] have suggested that Merril Jessop, who has been leading the Eldorado, Texas compound,^[24] is the de facto leader of the church.

Overall in Utah today, those living in polygamist families number about 40,000 people, or about 2 percent of the population.^[25] Polygamists are difficult to prosecute because many only seek marriage licenses for their first marriage, while the other marriages are secretly conducted in private ceremonies. Thereafter, secondary wives attempt to be seen in public as single women with children.^[25]

Recent polygamy cases

The practice of informal polygamy among fundamentalist groups presents interesting legal issues. It has been considered difficult to prosecute polygamists for bigamy, in large part because they are rarely formally married under state laws. Without evidence that suspected offenders have multiple formal or common-law marriages, these groups are merely subject to the laws against adultery or unlawful cohabitation — laws which are not commonly enforced because they also criminalize other behavior that is otherwise socially sanctioned. However, some "Fundamentalist" polygamists marry women prior to the age of consent, or commit fraud to obtain welfare and other public assistance.

The to-date definitive Supreme Court case was Reynolds v. United States (1878), in which the opinion found was "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." However, recent Supreme Court decisions in Romer v. Evans (1996) and Lawrence v. Texas (2003) have opened the door to a new challenge,^{[26][unreliable source?]} particularly if polygamy cannot be shown to be definitively "subversive of good order".

In 1953, the state of Arizona investigated and raided a group of 385 people in the polygamist-practicing colony of Hildale and Colorado City, straddling the Utah-Arizona border. All the men were arrested and the children were placed with foster families. A judge eventually ruled this action illegal, and everyone returned to their community, which now numbers about 10,000.^[27]

In 2001, in the state of Utah in the United States, Juab County Attorney David O. Leavitt successfully prosecuted Thomas Green who was convicted of criminal non-support and four counts of bigamy for having five serially monogamous marriages, while living with previous legally divorced wives. His cohabitation was considered evidence of a common-law marriage to the wives he had divorced while still living with them. That premise was subsequently affirmed by the Utah Supreme Court in State v. Green, as applicable only in the State of Utah. Green was also convicted of child rape and criminal non-support.^[28]

In 2005, the state attorneys-general of Utah and Arizona issued a primer on helping victims of domestic violence and child abuse in polygamous communities.^[29] Enforcement of crimes such as child abuse, domestic violence, and fraud were emphasized over the enforcement of anti-polygamy and bigamy laws. The priorities of local prosecutors are not covered by this statement.

In 2008, starting on April 4, Texas State officials took 436 children into temporary legal custody after someone claiming to be a 16-year-old girl made a series of phone calls to authorities in late March, claiming she had been beaten and forced to become a "spiritual" wife to an adult man. Acting on her calls, authorities raided the ranch in Eldorado, about 40 miles south of San Angelo. The YFZ Ranch is owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a Mormon offshoot that practices polygamy. Two men were arrested for obstructing the raid. The children ranged in age from infants to teenagers, including teenage mothers and pregnant teens.^[30][31] The original call that alleged that abuse was occurring turned out to be a hoax. Instead of being a blond, blue-eyed, teen-aged mother, living at the FLDS ranch in Texas as the caller claimed. The caller was actually thirty-three, black, lived in Colorado, had never been part of the FLDS—and has convictions from 2007 for false reporting and obstructing government operations.^[32][33] On appeal, all the children were ordered released and the court ruled that the lower court had "abused its discretion" in not returning the children to their families.^[34] Texas appealed to the state Supreme Court which sided with the appeals court and ruled that the children never should have been removed from their families.^[35]

References

Bibliography

• Kilbride, Philip. "Plural Marriage for Our Times: A Reinvented Option?" Bergin & Garvey; 1994.
• Lauman, Edward O., John H. Gagnon, Robert T. Michael, and Stuart Michaels. The Social Organization of Sexuality: Sexual Practices in the United States: Chapter 13: Sex, Cohabitation, and Marriage. Chicago: University of Chicago Press, 1994.
• Loue, Sana. Sexual Partnering, Sexual Practices, and Health, Chapter Two: Multi-Bonding: Polygamy, Polygyny, Polyamory." Springer Publications, 2005. ISBN 0387259236
• Murdock, George Peter. Social Structure. New York: The MacMillan Company, 1949. ISBN 0-02-922290-7.
• Miriam Koktvedgaard Zeitzen (2008). Polygamy: A Cross-Cultural Analysis. Oxford, UK: Berg Publishers. ISBN 1-84520-220-1. http://books.google.com/books?id=WIzHjpTJgdQC&dq=polygamy+rarely+prosecuted&source=gbs_summary_s&cad=0. 
• "Timeline of raid on FLDS-owned YFZ Ranch". Deseret News. May 23, 2008. http://www.deseretnews.com/article/1,5143,700228439,00.html?pg=4. Retrieved 2009-05-11. 
• Jonathan Turley (10/3/2004). "Polygamy laws expose our own hypocrisy". USATODAY.com. http://www.usatoday.com/news/opinion/columnist/2004-10-03-turley_x.htm. Retrieved 2009-05-12. 

External links

• "Public Vows: A History of Marriage and the Nation". Excerpt, 2005.
• Polygamy: What Love Is This? Television talk show on subject of polygamy, on KTMW-TV20 Salt Lake City (episodes viewable online)