Why Is Polygamy Illegal?

Wendy Kaminer

Opponents of gay rights often warn that legalizing same-sex marriage would inexorably lead to legalizing polygamy. Maybe it would, and maybe it should. Denying gay couples the right to marry violates state constitutional guarantees of equality, as the California and Massachusetts high courts have rightly ruled. (The Supreme Court of California also held that the right to marry is fundamental.) Surely Mormons have the same rights to equal treatment under law and of course, they have a substantial First Amendment claim to engage in multiple marriages according to the dictates of their faith. So why is polygamy illegal? Why dont Mormons have the right to enter into multiple marriages sanctified by their church, if not the state? Theres a short answer to this question but not a very good one: polygamy is illegal and unprotected by the Constitution because the Supreme Court doesnt like it. Over one hundred years ago, the Court held in Reynolds v. U.S. that polygamy was an offence against society. The Reynoldsdecision upheld the criminal conviction of a man accused of taking a second wife in the belief that he had a religious duty to practice polygamy, a duty he would violate at risk of damnation. The Court compared polygamy to murders sanctified by religious belief, such as human sacrifice or the burning of women on their husbands funeral pyres. Even in Victorian America, this comparison made little sense. (Most Victorian women, I suspect, would have chosen polygamous marriages over death by burning.) Today the Courts analogy is as anachronistic as a ban on adultery. After all, whats the difference between an adulterer and a polygamist? And if its not illegal for a married man to support a girlfriend or two a nd father children out of wedlock with them, how can it be illegal for him to bind himself to them according to the laws of his church? Why is a practicing Mormon with two wives a criminal while Staten Island Congressman Vito Fosella, recently embarrassed by the discovery of his second family, is simply a punchline? Whats the moral and practical difference between a man who maintains multiple families without the approval of any church and a man who maintains multiple families with his churchs approval?

Nontheists who favor civil unions for everyonetaking the state out of the business of approving or disapproving religious matrimonial ritesshould be especially supportive of the First Amendment right to engage in polygamous marriages sanctified by any faith. Whether or not polygamy should be legalized so that people in polygamous marriages enjoy equal rights and entitlements (like Social Security benefits), it should at least be decriminalized. Why should we care about other peoples private religious ceremonies? How dare we criminalize them? Polygamy encourages child abuse, people say, citing instances involving the marriage of older men to underage girls. Assuming for the sake of argument that this is true, it still doesnt justify categorical prohibitions on polygamy. Alcohol consumption may encourage sexual violence; its often blamed for date rape. Should we prohibit its use, as members of the Womens Christian Temperance Union demanded over one hundred years ago? Or should we prosecute alcohol-fueled violence whenever we find it? We rightly prohibit violence, not drunkenness, even though some drunks are violent; we should prohibit child abuse, not polygamy, even though some polygamists are abusers. To do otherwise is to court worse abuses than we seek to prevent, as the raid on the Search for Zion compound in Texas this past April demonstrated. On the basis of one anonymous phone call (that later appeared to be a hoax), Texas authorities forcibly removed more than 460 children from their parents without evidence of actual abuse in each case. Parents and children were ordered to undergo DNA testing (Who knows how long the state will maintain the DNA database, or to what uses it will be put?), and the children were summarily consigned to the notorious Texas foster-care system. They were subsequently reunited with their parents on order of Texas courts, which rightly held that the state had acted unlawfully, but who knows how much damage was done? Its hard to explain the relative complacency or cautiousnes s that initially greeted this extraordinary abuse of power, except with reference to religious bigotry or squeamishness about polygamy. Members of the Search for Zion sect tried taking their case to the public some attorneys defended their rights, and the American Civil Liberties Union eventually expressed more than cautious concern for thembut predictably, the national conversation generally reflected little sympathy for the civil liberties of people involved in a religious group far outside the mainstream. Imagine the reaction had the state instead invaded a community of Christian Scientists and removed all their children after receiving an anonymous tip that one child had been harmed by the refusal of his or her parents to provide medical care. The Search for Zion case is different, some reply, because polygamy is illegal. Exactly. Polygamys illegality doesnt make the states actions less abusiveimagine the reaction if the state

summarily removed all the children from a commune in which parents were suspected of smoking dopebut it does provide authorities with an argument, however flawed. Of course, Im not suggesting that any parent have a religious right to harm their children by denying them medical care, subjecting them to sexual molestation, or ot herwise abusing them. Im simply pointing out that the state should not abuse the power to prosecute people or forcibly remove their children because authorities dont approve of their lifestyle. Gay men were once routinely suspected of being pedophiles, a suspicion that persists today but with considerably less prevalence and respectability. Indeed, opposition to gay marriage still relies on specious arguments about the harm it poses to children. Some fools still compare homosexuality to bestiality, just as the Supreme Court once compared polygamy to human sacrifice. We progress when we base the extension of rights on reason, not bias or judicial hyperbole.

http://www.secularhumanism.org/index.php?section=library&page=kaminer_28_5 04022013

I Do, I Do, I Do: Is Polygamy Legal?

For most, being married to one person is perfectly normal and forms the basis for a happy family life. For others, though, having more than one spouse is a way of life. But there may be consequences for choosing that lifestyle. In the Open In Utah, four women consider themselves the wives of the same man. And they share their stories and their lives in a popular reality TV show. The problem is, they may end up in court and prosecuted for committing a crime.And who can forget the story about the woman who found her husband's other wife on Facebook? Polygamy and Bigamy Polygamy and bigamy are illegal in the US, but as the Utah "sister wives" show, it goes on anyway. Essentially they mean the same thing - someone has more than one spouse. More often than not, it's when a man has more than one wife. In some states, the law uses the terms interchangeably. There are some legal differences, though:Bigamy is when someone legally marries more than one person. That means they go through the hoops set out by state law, such as getting a marriage license, etc. It may happen on purpose, or by mistake, like not having a proper, legal divorce before getting remarried Polygamy is when someone has one legal spouse and one or more co-spouses he married through some sort of spiritual marriage that's not legally recognized by the state How It's Illegal You may be asking: How can it be illegal if the spiritual marriage is legally invalid? Most states recognizecommon law marriages, where you act like you're married - live together, have children, tell friends and neighbors you're married, etc. If you're legally married to one wife and also have a common law wife, you're committing the crime of polygamy.Also, there are anti-cohabitation laws making it illegal for two people to live together and act as though they're married. Overlooked? Often, polygamists are left alone by the police, and the few states that have anti-cohabitation laws generally don't enforce them. There are a few reasons for this, such as the respect for freedom of

choice - the freedom to choose your own lifestyle. Freedom of religion also plays a role. Polygamy is acceptable in some religions, from the mainstream, like Islam, to the not-so-mainstream, like certain cults. Not Overlooked It's not overlooked, however, when the lives or safety of others are at stake, or the public's faith in the local government is weakened. For example, in 2008, law enforcement agents in Texas raided a polygamist compound after a 14-year-old wife made an emergency call for help. And in the Utah sisters' case, flaunting their violation of state law on national TV may spark legal action by state prosecutors to show the public that polygamy is in fact illegal and that state laws mean something. Another situation when it won't - and can't - be ignored is when it comes to divorce, child custody or child support. When there's more than one spouse and/or multiple children by more than one spouse, who's entitled to alimony, custody or child support payments? A court can hold a polygamist husband responsible for all of it. Penalties The penalties for polygamy and bigotry vary a great deal from state to state. It may be considered a criminal misdemeanor, such as when no one's life or safety is at risk. The polygamist, and perhaps the spouses, may face a fine, up to a year jail, or both. When wives or spouses are forced to marry against their will or aren't of legal age to marry, it may be a criminal felony, which may carry a higher fine and longer jail sentence. Not to mention other criminal charges, like sexual abuse, for instance. Before Facebook, Twitter, reality TV and the internet, people could generally keep their business to themselves and do pretty much what they wanted without much interference. When you flaunt your lifestyle on TV or Facebook, you might want to rethink your life choices when they're illegal.

http://family-law.lawyers.com/matrimonial-law/I-Do-I-Do-I-Do-Is-Polygamy-Legal.html

Polygamy laws expose our own hypocrisy

By Jonathan Turley Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom. If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law. For polygamists, it is simply a matter of unequal treatment under the law. Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners "as a spouse," we jail them. Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison. Religion defines the issue The difference between a polygamist and the follower of an "alternative lifestyle" is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger. However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as "almost exclusively a feature of the life of Asiatic and African people." In later decisions, the court declared polygamy to be "a blot on our civilization" and compared it to human sacrifice and "a return to barbarism." Most tellingly, the court found that the practice is "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World." Contrary to the court's statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the "poly" to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean. Indeed, studies have found polygamy present in 78% of the world's cultures, including some Native American tribes. (While most are polygynists with one man and multiple women there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States. Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy. The Green case This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married even though they never sought a license. Green was then convicted of polygamy. While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws. In Green's case, he was shown to have "married" a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime just as a person in a monogamous marriage would be prosecuted. The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters. Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens. I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

http://usatoday30.usatoday.com/news/opinion/columnist/2004-10-03-turley_x.htm

Are Laws Barring Polygamy Destined to Fall? Law Prof Defends Marriage of Two

Critics are attacking laws barring polygamy as an assault on religious liberty, a throwback to another time when contraception was banned and homophobia prevailed. Emory University law professor John Witte Jr. isnt among them. He defends anti-polygamy laws in a Guest Voices column for the Washington Post. I argue that polygamy is dangerous because it harms women, children, and men alike, and will allow some religious communities to become a law unto themselves, he writes. Witte is working on a history of polygamy due to be published next year, the Washington Post reported last month in a separate article. His research, he says, supports marriages that are limited to two people. Polygamy harms young women who may be coerced into early marriages, he says. When rival wives are added, women are exploited and forced to make do with dwindling resources. Children receive fewer resources in such homes without healthy models of love and equality, he says. And men are harmed, he argues, when polygamy promotes ostracism of rival younger males. Witte defended tradition in another Guest Voices column for the Post published in October entitled Why monogamy is natural.

http://www.abajournal.com/news/article/are_laws_barring_polygamy_destined_to_fall_law_prof_defends_marriage_of_two/

Is Polygamy Legal Anywhere In The United States?

Discovery Channel The short answer is no, although that's not to say the practice does not still exist in the United States. According to Black's Law Dictionary, polygamy, or plural marriage, is the "state or practice of having more than one spouse simultaneously." The practice was outlawed by the federal government in 1862, forbidding the practice in all U.S. territories. Polygamy is strongly identified with the Mormon faith by some in the general public, even though the Church of Jesus Christ of Latter-Day Saints (LDS Church) has condemned the practice since 1890 and today excommunicates those of its members thought to be practicing it. Nevertheless, polygamy is secretly practiced in Utah and its neighboring states. In fact, it's estimated that 30,000 to 60,000 polygamists live in that region [source: Signature Books Library]. Polygamy is practiced today, typically, by members of splinter groups that broke off from the LDS Church over that very issue. The so-called "fundamentalist" Mormons have long sought to have polygamy decriminalized. In fact, in July of 2011, a lawsuit was filed in Salt Lake City that asks for polygamy between consenting adults not to be considered a crime, challenging Utah's ban on plural marriages. It's even possible that state's law could end up being reviewed by the U.S. Supreme Court. Even Utah's attorney general was moved by the filing to suggest that the United States may be in for a broader discussion about polygamy along the lines of the state-by-state debate over same-sex marriage. The Utah suit was filed on behalf of Kody Brown and his four wives, all of whom star on the TLC Network television program "Sister Wives." The suit challenges the Utah ban largely on the grounds of personal privacy. The Browns are part of one of the Mormon splinter groups, called Apostlic United Brethren [source: Salt Lake Tribune].

http://curiosity.discovery.com/question/is-polygamy-legal-in-us

Why Polygamy Should Be Legal

De-Criminalizing Sinful Acts In Canada, being married to more than one person is illegal. It is in fact, a criminal offence. Section 293 of the Criminal Code prohibits any form of polygamy [or] entering into a conjugal union with more than one person at the same time. The maximum penalty is five years in prison. While I am certainly not an advocate for polygamists, I fail to understand why it is considered a crime. Laws are intended to prevent harm to society at large. So, it is not really the "marriage" that bothers us is it? Isn't it the multiple relationships that we find abhorrent? If it is the behavior of the polygamist that troubles us - that being that he is not monogamous, then we'd better get busy and make adultry a crime too. Seriously, a married man (or woman) is within his legal rights to cheat on his or her spouse, with or without said spouse's knowledge. A man is permitted to have sex with multiple partners, separately or all at one time without legal consequences. He is legally entitled to live "in sin" with as many "partners" as he chooses (assuming they too choose him). Society in general, does not advocate such behavior, but we don't prosecute partakers. Why then do we make it a crime for a person to "marry" multiple partners? What difference does it really make if the persons involved in the activity have gone through a "ceremony"? Perhaps the harm to society comes in the sense of the legal rights and benefits of spouses. I may be viewing this in a very simplistic view, but why couldn't we simply not recognize the multiple spouses? Let them get "married" in their religious ceremony, but when it comes to the "state" you can only claim one spouse. Let's just get out of the bedrooms of consenting adults. Let's allow people to choose how they want to live without governement intervention, but let's protect the real interest of society by recognizing only one legal spouse per person. Isn't that really simple? Am I missing something? There are those who will say that polygamous communities, such as Bountiful BC, are not only engaging in polygamy, but they are forcing children to marry older men. In my mind, that is a completely separate issue. Sexual abuse of a child should not be confused with polygamy. A child cannot legally consent to sexual relations with adults - period. There are child protection laws to deal with that situation, and I would support aggressive prosecution of any person, polygamist or not, who sexaully abuses or interferes with any child. Difficult to prove? Of course it is. As a former child protection social worker, I can tell you that sexual abuse of a child is never easy to prove - even outside of religious cults. If Bountifuls leaders, Winston Blackmore and Jim Oler are found guilty and imprisoned, what will the financial cost be to society? Will imprisoning these two men put an end to the practise? I can't imagine that it will. So there you have it... just some of the reasons that support the notion of de-criminalizing Polygamy.

http://karenweir.hubpages.com/hub/Why-Polygamy-Should-Be-Legal