Polygamy in North America

Polygamy (called plural marriage by the Mormons) became a social and political issue in the United States when the practice was introduced by the Mormons in 1843 in Illinois, before they settled in Utah in 1847 bringing with them the practice. It continues to be an issue today, though the official Mormon Church now opposes the practice.

Polygamy defined

Polygamy is defined as the practice or condition of knowingly having more than one spouse, especially wife, at the same time. It is now illegal in all 50 states, as defined by the Model Penal Code section 230.1, which states that a person is guilty of the third-degree felony of polygamy if he or she marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. 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. This practice began in Utah with the Mormons who settled there, and it is now continued mainly with the members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

History

The Mormon practice of plural marriage was officially introduced by Joseph Smith, the founder of the Mormon church, on July 12, 1843. As polygamy was illegal in the state of Illinois, it was practiced privately. Though during the 1839-44 Nauvoo era several top Mormon leaders including Smith, Brigham Young and Heber C. Kimball took plural wives, Mormon elders who publicly taught that all men were commanded to enter plural marriage were subject to discipline; for example, the February 1, 1844 excommunication of Hyram Brown. In May 1844 Smith declared, "What a thing it is for a man to be accused of committing adultery, and having seven wives, when I can only find one." On June 7, 1844 the Nauvoo Expositor criticized Smith for plural marriage. The Nauvoo city council declared the Nauvoo Expositor press a nuisance and ordered Smith, as Nauvoo's mayor, to order the city marshall to destroy the paper and its press. This controversial decision led to Smith going to Carthage Jail where he was killed by a mob on June 27, 1844. The main body of Mormons soon followed Brigham Young to Utah where the practice of plural marriage continued.

With the Compromise of 1850, Utah was declared a federal territory, with a federally appointed governor and judiciary. Brigham Young, the president of the Mormon Church at the time, was elected the first governor, along with an all-Mormon legislature. One of the first acts of this legislature was in 1851, when they awarded their probate courts extended jurisdiction. Thus, “probate courts possessed concurrent jurisdiction with the district courts and offered an alternative to the federally appointed, non-Mormon officers of the district courts”. At this time, the Mormon-dominated legislature wanted to keep the practice under legal protection, so they framed laws that favored the practice without actually using the word “polygamy” in order to keep it from coming to the attention of the U.S. Congress. Polygamy was able to continue for some time without being noticed.

Because bigamy was prohibited at common law, the territorial legislature overturned the common law in 1854. Therefore, the legal protection of the Mormons who chose to practice polygamy were relatively free from federal intervention until Congress passed the Morrill Act in 1862, which was the first federal law that specifically prohibited bigamy. On the whole, the Mormons who practiced polygamy avoided the federal court systems all together. Rather, they settled disputes with an ecclesiastical court system established by the church. Thus, the practice of polygamy in Mormon communities continued. At its height, at least 25 percent of adults in these communities were members of polygamous households. Increasingly harsh anti-polygamy legislation penalized church members, disincorporated the church, and permitted the seizure of church property. Members of the church were subsequently sent to Canada and Mexico to set up communities free from prosecution and in order to keep their marriages intact; e.g., Charles Ora Card founded Cardston, Alberta at the direction of John Taylor.

On August 29, 1852 the Mormon Church began to publicly acknowledge their practice of plural marriage through a sermon on the subject given by Orson Pratt. Additional sermons by top Mormon leaders on the virtues of polygamy followed. Much controversy ensued and many novelists began to write books and pamphlets condemning polygamy, portraying it as a legalized form of slavery. The key plank of the Republican Party's 1856 platform was "to prohibit in the territories those twin relics of barbarism, polygamy and slavery". In 1862 during their first term with full control of both Congress and the White House, the Republicans issued the Morrill Anti-Bigamy Act and the Emancipation Proclamation. The Morrill Anti-Bigamy Act clarified that the practice of polygamy was illegal in all U.S. territories. Mormons argued that their practice of plural marriage was religiously-based and thus protected by the Constitution. However the 1878 unanimous Supreme Court Reynolds v. United States decision declared that polygamy was not protected by the Constitution, based on the longstanding legal principle that "laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."

In 1890, however, Wilford Woodruff, the president of the church at the time, issued a Manifesto forbidding the practice. Woodruff indicated in his diary that his action was taken "for the temporal salvation of the Church" which had been shown to him as being in danger through a vision from the Lord. Much of the opposition against the church ceased because of the Manifesto.

Opposition to statehood for Utah faded as the controversy over Mormon polygamy waned. (Utah was granted statehood in 1896.)

However, some breakaway Mormon groups continued to follow polygamist lifestyles, despite the opposition of their Church.

National attention in the United States again focused on potential polygamy among the church in the early 20th century during the House of Representatives hearings on Representative-elect B. H. Roberts and Senate hearings on Senator-elect Reed Smoot (the Smoot Hearings). Sixth church president Joseph F. Smith issued the church's Second Manifesto against polygamy in 1904 which clarified that all members of the LDS Church were officially prohibited from performing or entering into polygamous marriages, no matter what the legal status of such unions was in their respective countries of residence. In 1909 a committee of apostles met to investigate post-Manifesto polygamy, and by 1910 the church had a new policy. Those involved in plural marriages after 1904 were excommunicated; and those married between 1890 and 1904 were not to have church callings where other members would have to sustain them. Although the LDS Church officially prohibited new plural marriages after 1904, many plural husbands and wives continued to cohabit until their deaths in the 1940s and 1950s. Seventh church president Heber J. Grant who died in 1945 was the last LDS Church president to have practiced plural marriage. Leaders of the LDS church say that because they have restored the fullness of the gospel of Jesus Christ to the earth, plural marriage was a temporary necessity for this purpose.

The LDS Church now excommunicates members found to be practicing polygamy. The "Teachings of Brigham Young" and a LDS website on Joseph Smith are some examples on how LDS Church publications now commonly characterize the history of early church leaders on the practice of plural marriage.

Although Mormons accept the prohibition on plural marriage, various splinter groups left the mainline LDS Church to continue the open practice of plural marriage. Polygamy among these groups persists today in Utah, neighboring states, and the spin-off colonies, as well as among isolated individuals with no organized church affiliation. Polygamist churches of Mormon origin are often referred to as "Mormon fundamentalist" even though, because they are practicing polygamy, they are not a part of the LDS church and therefore are not accurately considered "Mormon". They often use an ambiguous September 27, 1886 revelation to John Taylor as the basis for their authority to continue the practice of plural marriage. The Salt Lake Tribune states there are as many as 37,000 fundamentalists, with less than half of them living in polygamous households. Most of the polygamy is believed to be restricted to about a dozen extended groups of polygamous fundamentalists. The LDS Church asserts that it is improper to call any of these splinter polygamous groups "Mormon."

Current Polygamists Groups in Utah

Although members of The Church of Jesus Christ of Latter-day Saints (LDS) no longer practice polygamy, members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) practice polygamy in arranged marriages that have often involved placing young girls with older men. The majority of FLDS members live in the twin communities of Hildale, Utah, and Colorado City, Arizona, about 350 miles southeast of Salt Lake City, with smaller communities in Canada, Texas and other areas of the North American west. The head of this church is currently Warren Jeffs.

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.

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

Polygamists Arrested Recently

Warren Jeffs, 51, was formerly leader of the Fundamentalist Church of Jesus Christ of Latter- Day Saints was convicted in September of 2007, and was found guilty of rape as an accomplice for allegedly coercing the marriage of a 14-year-old follower to her 19-year-old cousin.

David Bateman, 49, was convicted of sexual conduct with a minor and conspiracy to commit sexual conduct with a minor in December of 2006. Bateman was legally married to another woman in 2001 when he had sex with a 17- year-old girl assigned to him through the church.

Brian David Mitchell, 49, was charged in 2003 for the kidnapping and sexual abuse of Elizabeth Smart, a 15-year-old girl from Utah. Mitchell is a polygamist and intended to make Smart his wife. Mitchell is a unique polygamist in the fact that he does not belong to any certain group of polygamists. In fact, he was once a mainstream Mormon, but was excommunicated from the church due to his extreme beliefs.

Tom Green (polygamist), 54, was found guilty of child rape in June of 2002 for having sex with 13-year-old Linda Kunz in 1986. In 2001, he also was convicted of being married to five women at the same time, all of whom where 16 or under when they married him.

Multiple divorce and marriage for polygamy

Some polygamous families use a system of multiple divorce and legal marriage as a loophole in order to avoid committing a criminal act. In such cases the husband marries the first wife, she takes his last name, he divorces her and then marries the next wife, who takes his name. This is repeated until he has married and divorced all his wives, except possibly the last one. This way the wives feel justified in calling themselves Mrs. [husband's last name] and, while legally they're divorced from the husband, they still act as if married to him and expect those around them to acknowledge and respect this.

Since only one wife is officially married to the husband at any one time, no law is being broken and so this type of polygamous family unit can be overt about their relationship.

The conviction of Thomas Arthur Green in 2001 may have made the legal status of such relationships more precarious in Utah, although Green's bigamy convictions were made possible only by his own public statements.

Recent polygamy cases

The practice of informal polygamy among fundamentalist groups presents itself with 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.

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.

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. 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.

Edith Barlow, a mother of five in the polygamous community of Bountiful, B.C., was denied permanent residence and has been asked to leave the country after ten years in Canada. In Canada, polygamy is a criminal offence but prosecutions are rare. The Attorney General in British Columbia has expressed concerns over whether this prohibition is constitutional; an independent prosecutor in British Columbia recommended that Canadian courts be asked to rule on the constitutionality of the law against polygamy. A 2005 report by the Alberta Civil Liberties Research Centre recommended that Canada decriminalize polygamy, stating: "Criminalization is not the most effective way of dealing with gender inequality in polygamous and plural union relationships. Furthermore, it may violate the constitutional rights of the parties involved."

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, and it remained unclear whether the person who made the initial call has been located by authorities. The children ranged in age from infants to teenagers, including teenage mothers and pregnant teens.