Friday, February 6, 2009

FAMILIES OR FELONS?

IS POLYGAMY A CRIME IN UTAH?

Do you believe that Utah’s polygamists are criminals? Let us hear from Utah Senator Orrin Hatch. In May of 2006, he said, "Polygamy is against the law. It's that simple." In an interview on the “Larry King Live” show, LDS Church president Gordon B. Hinckley said of polygamy, “I think I leave that entirely in the hands of the civil officers. It's a civil offense. It's in violation of the law . . . . . . . I condemn it, yes, as a practice, because I think it is not doctrinal. It is not legal.

Do you know where to find the text of a Utah statute prohibiting polygamy? – Probably not. The truth is – There is no law against polygamy in Utah. Now, it is true that there are statutes prohibiting sodomy, adultery, fornication and bigamy, but the word “polygamy” is found nowhere in Utah’s criminal codes. Polygamy is not defined as a crime in Utah’s laws, and it has been many years since any Utahn has been prosecuted for polygamy. Why, then, is there such a pervasive belief that Utah’s polygamists are criminals?

Everybody knows that it was the Mormons who brought polygamy to the Rocky Mountains. It was a fundamental tenet of Latter-day Saint theology. When the federal government decided to crack down on Mormon polygamy in the 1800’s, it was a direct attack on a purely religious practice. Little attention was directed at adulterers and fornicators. Polygamy was dubbed one of the “twin relics of barbarism”. The government confiscated Mormon Church property in order to persuade it to renounce this controversial practice.

When the Church put forth George Reynolds as a polygamy test case in the 1870’s, the argument was that polygamy was protected under the First Amendment’s “establishment” clause. The Reynolds court summarily scoffed at George Reynolds’ claims, insisting that, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” This decision was an example of reprehensible bigotry, and it gave the federal and state governments unfettered power to attack almost any religious practice, even if it could not be shown to cause harm.

The reason why Utah has no law directly prohibiting plural marriages or polygamy is because there is no way to write such a statute without blatantly violating the facial neutrality guidelines invoked by the 1992 Supreme Court decision in Lukumi. It would be as flagrant as writing a law that forbids Mexicans to dance on Sundays. The sneaky way to get around this is to simply write a law that forbids all dancing on Sundays and then prosecute nobody but Mexicans for violating it. That is exactly what happens here in Utah, and it is a clear violation of operational or as-applied neutrality.

The way the legal establishment craftily targets Utah’s polygamists is by way of the bigamy statute. Nationally, bigamy statutes are designed to catch the con-man who legally marries one woman, then secretly and fraudulently obtains one or more additional marriage licenses in an effort to bilk the women out of their money and property. Polygamists do not commit such bigamy because there is no secrecy, and only the first wife has a legal marriage.

A hundred years ago, federal marshals employed numerous tactics to ensnare persistent polygamists. Laws were enacted which made it a crime to solemnize a plural marriage ceremony; to impregnate a plural wife; to spend the night in different homes on different nights of the week; to eat dinner with more than one woman, to say that you had more than one wife; and even to teach the doctrine of plural marriage. No effort was spared to twist the law to cast so broad a net that one could be imprisoned almost for believing in polygamy. In 1942, one of Rulon C. Allred’s wives was jailed for playing the piano for a Mormon fundamentalist church Sunday School class. Such violations of simple due process might cause even Stalin to shudder.

Today, the trickery continues. Utah’s bigamy statute is cleverly crafted. It says essentially two things:

You are guilty of bigamy (a felony) if you are married to one spouse and then you purport (claim) that you have a second or third.
You are guilty of bigamy if you are married to one spouse and then you “cohabit” with another person to whom you are not really “married”.

On the surface these statutes may seem innocuous and rational, but I will prove to you that they are not. First, it is absurd to prosecute someone in every case for purporting something inaccurate. Every Sunday, Latter-day Saints attend church meetings and address each other as “brother” or “sister”. More often than not, these churchgoers are not true siblings, so the claim of being brothers and sisters is inaccurate, yet I can remember no instance of a Mormon being arrested for such assertions. Now if I am married and I begin a relationship with another woman, and I decide to call her my “plural wife” (and not my “mistress”), the State of Utah will of course categorically refuse to acknowledge her as a real wife. Second marriages are automatically void and have no legal value. Nevertheless, I have now committed a felony for “purporting” that I have a second wife. This would be somewhat like my falsely claiming to have robbed a bank when, in fact, no bank was robbed, and then having the police demand that I return the money!

The second “prong” of the bigamy statute is equally absurd. First, the term “cohabit” has not been defined in Utah Code, so we are left to guess what it might mean. However, let us not split hairs. Cohabit can only mean one of two likely things. It either means “sharing the same dwelling with”, or “having sexual intercourse with”. Let us look at the first meaning. This meaning is overbroad, in that most Utah families have a married man who resides with other people to whom he is not married, namely his CHILDREN. This construction would put half of Utah in prison for bigamy. The second meaning – the sexual one – is the more likely application, would you not agree? The problem with this is plainly obvious. Mormon fundamentalist polygamists get a legal marriage license with the first “wife”. The subsequent (or “plural”) wives are only girl-friends in a strict legal sense. There may be sex acts, and children may be born, but that still does not afford the women any kind of legal spousal status. In strict legal parlance, the man’s actions constitute adultery or fornication – both misdemeanors which are NEVER prosecuted in Utah. Sadly, every year, thousands of ordinary Utah citizens commit adultery, and, in some cases, a pregnancy results. These crimes are never prosecuted because the perpetrators are not fundamentalist Mormons.

In recent years, the bigamy statute has been used to prosecute four men, all of whom were either single or were married to only one legal wife. Those men are Mark Easterday of Monroe, Steve Bronson of Hinckley, Thomas Green of Partoun, and Rodney Holm of Hildale. In some cases, girls of minor age were involved but, since at that time Utah had no “child bigamy” statute, all four men were prosecuted for “adult” bigamy. The only other bigamy case in recent history is the case of State v. Geer”. Geer was a true bigamist because he had two concurrent state marriage licenses. Without exception, Utah has only used the bigamy statute on men with one wife or no wife when those men were FUNDAMENTALIST MORMONS who believed in the Mormon doctrine of polygamy. There crime was their doctrinal beliefs.

This approach unquestionably violates the operational neutrality requirement of the Lukumi decision, and I believe it violates the First Amendment’s free speech clause. If I have a wife and I take an additional bed-partner, my guilt or innocence and the length of my prison sentence hinge on the language I use to describe the second woman. If I say, “mistress” or “girl-friend”, I am home free. If I say “plural-wife”, I will end up in prison. If it is discovered that I am a Mormon fundamentalist, then my goose is cooked. Mormon fundamentalists are about as popular as Nazi war criminals.

Even more ironic is the fact that in June of 2003, the U.S. Supreme Court issued a decision in Lawrence v. Texas which forever changed the landscape of morality legislation. In overturning the (1986) Bowers v. Hardwick decision, the Court held that it could now no longer be said that homosexual sex was not a fundamental Constitutional liberty. Scratch your head for a minute and think back to the last case you remember where a gay person was incarcerated for homosexuality. In fact, today, Utah representative Jackie Biskupski is an openly homosexual state legislator. Now no state can enact or enforce any law prohibiting any homosexual sex act. The Lawrence Court insisted that states cannot create laws directed at specific lifestyles which are not then applied generally to all parties. It said that states must not pass morality laws designed to attack private adult conduct just because the majority finds that conduct repugnant or distasteful. All private, non-commercial, consensual adult sex acts are Constitutionally protected. This is why Bill Clinton and Hugh Hefner are not in prison. Singling out Utah’s polygamists for disfavorable treatment is inexcusable.

You may remember that Utah was refused admission to the Union until it agreed to include in its state constitution an irrevocable clause which would forever prohibit “polygamous or plural marriages”. A clause was then also inserted which forbade Utah to remove this prohibition without first getting permission from the federal government. This “irrevocable” clause is unconstitutional because it brought Utah into the Union on a lower (“unequal”) “footing” than the other states whose constitutions contained no such heavy-handed federal interference. In 1910, a Supreme Court decision, Coyle v. Smith, found such irrevocable clauses to be impermissible. Sadly, however, as long as the good people of the pretty, great State of Utah are content to leave this unconstitutional clause in their constitution, it remains in place to menace some 30,000 law-abiding fundamentalist Mormons with the stigma of criminality and the specter of prosecution.

One puzzling aspect of this situation is that the Attorney General has said that he will not prosecute consenting adult polygamists for the following three reasons:

No one will come forward to provide evidence;
Utah lacks sufficient law enforcement resources to catch all the polygamists; and
There are not enough prison spaces or foster homes for the polygamists and their children after they have been caught. (Could you ever let a polygamist out of prison?)

I think the true reason no prosecutor dares to exercise Utah’s bizarre bigamy statute against a consenting adult family is that the Attorney General knows that such a prosecution would provide the perfect test case to compel the Supreme Court to overturn the statute and the Reynolds decision. It appears that certain parties in power are anxious to maintain the status quo.

I will finish by including a statement made by the State of Utah in its Amici Curiae brief in the Lawrence v. Texas case. Joining other states’ efforts to keep already unconstitutional laws on the books, the Attorney General argued,

Even legislation that is largely symbolic and infrequently enforced (due to other salutary checks on government power like the Fourth Amendment) has significant pedagogical value. Laws teach people what they should and should not do, based on the experiences of their elders.

Might I venture to suggest that Utah’s elders include Brigham Young, Orson Pratt, Heber C. Kimball, Daniel Wells and John Taylor (all of whom were revered polygamists and statesmen)?

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