The legal questions about the practice of polygamy are one of the major human rights issues of our time. Proponents of legal polygamy argue that polygamy is a viable alternative lifestyle that does not in itself cause harm. Others argue that polygamy encourages unfaithfulness and the abuse of women and children. Concerns about the legality of polygamy arise in discussions about the separation of church and state, and the freedom of religion that Americans value.
Polygamy is defined by the Compact Oxford English Dictionary (2005) as “the practice or custom of having more than one wife or husband at the same time.” In most instances, especially in America, polygamy refers to a type of polygamy known as polygyny, a type of polygamy where “a man has more than one wife.” Another less common form is polyandry, where “a woman has more than one husband.” Although all forms of polygamy are illegal throughout the United States, the most common form of polygamy is polygyny.
Polygamy is banned by the Church of Jesus Christ of Latter-day Saints, but was a practice that was common in recent history in that church. Today, the church turns a blind eye to those who practice polygamy discretely (Absalom). Fundamentalists from the Church of Jesus Christ of Latter-day Saints broke from the LDS church to form the FLDS, the Fundamentalist Church of Jesus Christ of Latter-day Saints, in order to continue the practice of polygyny. The FLDS is the most widely recognized polygamist group currently active in the United States. There are other practitioners of polygamy in the United States. There are other religious sects, mostly offshoots of the Mormon faith or some practitioners of Islam, that practice polygamy. There are also polygamists in the United States that are not affiliated with those religious sects.
In a pure legal sense, we should look at all forms of polygamy the same, or the law should be rewritten to differentiate legal and illegal forms of polygamy. In Libya, for example, polygyny is legal, with certain restrictions. However, polyandry is not. All forms of polygamy are currently illegal throughout the United States.
The laws that apply to polygamy, however, are rarely enforced. Part of that lax in enforcing the laws, is that polygamy is culturally accepted in some parts of the United States. In Salt Lake City, many people come from polygamist families, even if they do not practice polygamy. Police in these areas use their discretion in enforcing the laws against polygamy, which usually means they don’t get enforced. Many of the police are actually members of the sect, which makes it even more difficult. Not only will they ignore polygamy, but they ignore more criminal offenses, like child abuse, as well. In Escape, Carolyn Jessop talks about her dilema after her son Patrick, was abused by one of her sister wives. “I couldn’t go to the police. The community police were all members of the FLDS. They would never investigate.” (Jessop, 240).
Some police overlook polygamy as a crime for the same reasons other laws regarding consensual sex offenses are often overlooked. The sodomy laws were invalidated in 2003 by the Supreme Court, which ruled that private sexual acts between consenting adults are protected by the constitution as part of the right to liberty. The issue with polygamy is that polygamy implies marriage. In today’s environment, civil rights activists are fighting for marriage rights for homosexuals, based largely on that liberty clause in the constitution. Some modern supporters of polygamy agree about that. The Supreme Court has already ruled that noncommercial consensual sex between adults cannot be regulated by the United States government, with the ruling on sodomy. However, it has shied away from making a definite ruling on marriage.
Marriage is a covenant that implies certain legal benefits, including citizenship and financial rights in the case of divorce. Some people have used marriage as a means to gain citizenship. Mail order brides are often talked about in jokes but are a real occurrence, where men with money and an American citizenship can find a foreign bride seeking to leave her country. It is currently illegal in most of the United States for homosexuals to marry. However, that is likely to change as civil rights focuses on protecting the rights of homosexuals. This is a trend that can be seen throughout history. In 1967, the Supreme Court redefined the definition of marriage in the case of Loving v. Virginia to include mixed race marriages, which were illegal prior to 1967 in much of the United States (Robinson). Modern polygamists, especially those not affiliated with radical religious sects, wonder if their marriages will be decriminalized.
Polygamy, like homosexuality, is argued to be a person’s personal choice. As some polygamists say, it is accepted in America for husbands to have affairs, and his right to bear children outside of marriage was supported in Eisenstadt v Baird in 1972, but if a man wants to have a serious committed relationship with two women in the form of a plural marriage, that is illegal and frowned upon by most of our society. (Szymanski).
A large part of the debate about the legality of polygamy has to do with the questions of consent and who is able to give it. Adults raised in an environment that allows for basic freedoms can give consent, but there is a question about many people in religious polygamist communities. Most children in those communities have been raised there their entire life and do not know much about the outside world and their own rights. They are taught to fear the government and are denied education. This isolation grew a lot in the FLDS under the leadership of Warren Jeffs.
Warren went crazy making prophecies. No one in the community was allowed to have access to any outside information, so he even began predicting the weather. I still had access to a computer because of the small Internet business I’d started. I’d often go online to see how closely Jeffs’ forecasts matched what I found online. They were identical. (Jessop, 334).
The question then is whether people raised in that environment can give consent. That is especially important when many of the women are under the legal age of consent, but will not go to outsiders for help. Those that are of legal age to consent are still forced into arranged marriages. They are not educated enough to know their rights. Many don’t have a high school diploma, and many are educated only in religious schools controlled by the very people who control every aspect of their lives. Jessop was one of the few college educated women in her community, which was a help as she got to see more of the outside world than many others in her community.
The problem with addressing problems in the FLDS and other radical polygamist sects, is that religious freedom in our country gives people the right to believe whatever they want. They also have the freedom to educate their children as they see fit. Polygamy itself is not inherently criminal, at least in that it is a victimless crime when all parties are consenting adults. The point where it turns criminal is when the parties are not consenting, or not able to consent, or not adults. More of the problems that are allegedly polygamist problems are actually domestic abuse problems. Monogamous and polygamous husbands abuse their wives and children. They should be treated equally under the law. However, it is difficult for a woman in a radical community to get help with domestic abuse. Jessop documents her attempts at seeking help from her husband’s abuses. She tries to go through the prophet, but is told to be obedient to her husband, and all the local police are members of he FLDS community and will not intervene. Since she has no contact with the outside world, she doesn’t have anywhere to turn for help.
I believe that the main reason laws banning polygamy are in place is because it provides a method by which police can investigate situations regarding child and domestic abuse. However, it seems odd to criminalize the way some people choose to live. I remember special on Oprah, originally aired on October 26, 2007, that showed a more positive view of polygamy. Lisa Ling interviewed people from various polygamist backgrounds, including a modern family with 22 children, educated in public school and whose children were involved in sports and music in the community. They were not polygamist because of being brainwashed as children, and made a decision as consenting adults to lead an alternative lifestyle. Another family also appeared on that Oprah special, which had three wives who claimed to be best friends and enjoy polygamy. Again, there was not an element of force involved in their decision to become polygamists. Then Lisa Ling interviewed Carolyn Jessop, and took her back to Colorado City to talk about the abuses that were going on in that community. The Oprah special highlighted differences that existed between different polygamists and showed Americans people other than the Colorado City polygamists to identify with that lifestyle. The two modern families on the Oprah special stressed that they don’t think polygamy is for everyone, but that they just want it decriminalized. Valarie, the self-proclaimed polygamist “soccer mom” explains it like this.
Utah law is really absurd, because if a man were to live with another woman besides his wife and then call her a wife and support her children, that’s criminal and they can get zero to five years for that. That’s considered a third-degree felony. But if they choose to have a mistress, then there’s a blind eye or a wink, and that’s really unfair in this society. (Polygamy in America, 4).
There has been a lot in the media lately about polygamy and its illegality. Between Oprah and the news about the raid at the Yearning for Zion Ranch, and Jessop’s book of memoirs, the public has a lot to digest about polygamy. The question is whether polygamy will ever be recognized legally, or decriminalized. Most people with experience in polygamy, including Jessop and the others on Oprah’s special, agree that decriminalization would be a big step for polygamy. It would enable polygamist families to be more open about their lives, and would decrease a lot of the fear of government persecution. Decriminalization would help people look closer at those polygamist groups that aren’t working, and go after the more dangerous crimes, like child abuse and domestic violence, that can be rampant in these societies, without lengthy debates about persecution of religion. If you are being investigated for child abuse, your religion isn’t relevant.
That being said, America is probably not ready for polygamy to be decriminalized. The use of the laws concerning polygamy can help to bring down people like Warren Jeffs, when child abuse and rape are not easily proven in an isolated society like Colorado City. Much like police may not arrest every person who smokes marijuana, someone who causes harm to others can be first brought in on charges related to drug possession.
The age old debate between freedom and safety plays out again as religious and sexual freedom compete with the the need to maintain a safe society. Do I think a criminal view of polygamy is constitutional? No. Do I think it is useful to bring down child abusers, like Warren Jeffs? Yes. I don’t know how polygamy will hold up in the court systems. Groups like the Centennial Park Action Committee and work to escape the stereotypes that Colorado City has subjected them to. In Centennial Park, families have several televisions and modern amenities. They allow outsiders to speak to them and are not as fearful and secretive about their lives. Anyone in a polygamist culture has some fear of the government, because they are technically behaving in an illegal manner and could one day be persecuted for it.
The civil rights debate will likely continue for a long time to discuss polygamy. Some civil rights activists say it’s the families’ choice how they want to live. Others point out sexual abuse in places like Colorado City. Civil liberties will, in my opinion, eventually win, but the abuses happening in America need to be addressed. For the time being, I think many modern polygamists would give up some freedom if actual progress was being made in stopping the abusive domestic situations many polygamists are in. Then we as a country can focus on formal decriminalization. The current police discretion is currently so great that no one is really tried for polygamist cases. Therefore, the decriminalization of polygamy is more of an ethical civil rights question than an immediate problem.
Through the media, America is learning about different forms of polygamy, polygyny, polyandry, and polyamory. As society evolves, our definition of family certainly will as well. Alternative lifestyles are becoming more common and accepted. Eventually, the legal aspects of those families will have to be redefined. However, those definitions have to take into account the balance between freedom and safety.
References
Absalom, Joseph. (1999). Polygamy faq. In The Absalom collection. Retrieved February 18, 2009, from http://www.absalom.com/mormon/polygamy/faq.htm.
Compact Oxford English dictionary (3rd ed.). (2005). Retrieved February 20, 2009, from http://www.askoxford.com/dictionaries/compact_oed/.
Jessop, C. & Palmer, L. (2007). Escape. New York: The Doubleday Broadway Publishing Group.
Robinson, B. A. Same-sex marriages, civil unions, and domestic partnerships. (2009). Retrieved February 18, 2009, from http://www.religioustolerance.org/hom_marr.htm.
Polygamy in America. (2007). In The Oprah Winfrey Show. Retrieved February 18, 2009, from http://www.oprah.com/slideshow/oprahshow/oprahshow1_ss_20071026/1.
Szymanski, Ben. (2004). Is polygamy really illegal?. Retrieved February 19, 2009, from
http://modernpolygamy.org/illegal.shtml.
