Is polygamy the “next civil rights battle” in the United States? Mark Henkel, the leader of the National Polygamy Rights Movement for Consenting Adults, claims that it is. While many would disagree that practicing polygamy constitutes a civil right, the issue of polygamy has become a focus of debate in the United States in recent years.
The history of regulating polygamy in the United States dates back to efforts of the federal government to reform the complex kinship systems of Native Americans, many who embraced matrilocal residence and matrilineal descent, and accepted polygamy and divorce with remarriage (Cott 2000). The issue generated further social and political controversy when in 1852 the Church of Jesus Christ of Latter-day Saints (LDS Church) incorporated plural marriage as part of its doctrine. The United States government opposed this practice, and persecution of Mormons as adherents of a despised minority faith intensified. In 1890, the LDS president Wilford Woodruff announced that the church would officially abandon plural marriage. However, Mormon fundamentalist groups living predominantly in the western United States still practice it. Estimates suggest a population of between 40,000 and 60,000 (Zeitzen 2008).
The relationship between the law and polygamy has been one of intense conflict in the United States. A collision course of the two resulted in the Short Creek raid of 1953 when Arizona state police and the National Guard took action against Mormon fundamentalists, resulting in the largest mass arrest of polygamists in American history (Jacobson and Burton 2011). More recently, the national spotlight turned on the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS)—one of the largest and most prominent Mormon fundamentalist groups—with the arrest of Warren Jeffs in 2006. Jeffs succeeded his father as the FLDS prophet in 2002. In 2011, he was sentenced in Texas to life in prison plus 20 years after being convicted on aggravated sexual assault and sexual assault charges.
The question of polygamy’s harms resurfaced in 2008 after the raid on the Yearning for Zion (YFZ) compound in Eldorado, Texas. Authorities acted on a phone call in which a 16-year-old girl claimed (falsely it was later found) to be abused by her husband, a 50-year-old man. Child protective services removed over 400 children from their homes; two months later the Texas Supreme Court ordered all but one of the children to be returned due to a lack of evidence of abuse. While the removal of the children was largely criticized, evidence gathered during the raid ultimately helped to convict Warren Jeffs and several on men on charges of sexual assault. The events at the YFZ Ranch generated intense press coverage over abuses taking place within a closed and secretive community, focusing attention on the violation of rights for many of the women and children, and some men, in the community (Jacobson and Burton 2011).
A recent federal court case has moved the question of rights in a different direction. On December 13, 2013, Federal Judge Clark Waddoups ruled in Brown v. Buhman that the section of Utah’s ban on multiple cohabitation was unconstitutional. Kody Brown, his four wives, and their 17 children are a polygamist family who star in an American reality television series called Sister Wives that began airing in 2010. The day after Sister Wives debuted, police in Lehi, Utah where the Brown family lived began an investigation for possible charges of bigamy, a third-degree felony. Although Kody is only legally married to one wife, the investigation noted that Utah state code criminalizes bigamy through cohabitation, as well as through multiple legal marriage contracts. The statute, Utah Code Ann. § 76-7-101, provides:
(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
Constitutional law scholar Jonathan Turley took on the case to challenge the constitutionality of the law.
In his decision, Judge Waddoups considered the due process challenge under the Fourteenth Amendment (regarding whether the government deprived an individual of a non-trivial protected interest) and the free exercise challenge under the First Amendment (the right of American citizens to accept any religious belief and engage in religious rituals). In the due process analysis, he found no “’fundamental right’ exists to have official State recognition or legitimation of individuals’ ‘purported’ polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State.” Furthermore, the criminalization of the “religious cohabitation” section of the statute did not rise to the level of a fundamental right. However, the judge did find: “The cohabitation prong does not survive rational basis review under the substantive due process analysis.” In other words, the cohabitation prong violates the equal protection clause. The judge concluded:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Thus, the judge renders the cohabitation prong of the statute unconstitutional while maintaining the prohibition of bigamy in the literal sense. What effect do these events and legal decisions have on people living in polygamy? What is the relationship between the law, policy, and practice in regulating polygamy? My research in the United States seeks to answer these difficult questions.