Governor Mitt Romney's candidacy for the Presidency of the United States has once again elevated polygamy to front page news. Historically, this nation has gone out of its way to separate church and state—except in political controversies. Does it matter? Should it matter?
At this writing, Mr. Romney, an active member of the Church of Jesus Christ of Latter-day Saints (aka the LDS Church or the "Mormons") is in the top tier of the Republican candidates running in the 2008 presidential race. In interviews, he is frequently asked about his religion and about polygamy. These are hot-button issues, and have been ever since the early Mormon practice of polygamy was initiated by the Prophet Joseph Smith in the early 1830s.
In the 1856 presidential race, the initiative to eradicate the "twin relics of barbarism—polygamy and slavery—was framed into the Republican Party platform. Although slavery initially overshadowed polygamy, once the Civil War was over polygamy took center stage and for the next twenty-five years, Congress attempted to destroy polygamy and the Mormon Church.
After issuing the Manifesto in 1890 and what has been termed the "second" Manifesto in 1904, the LDS Church officially stopped the practice of polygamy. The controversy should have ended at that point, but it didn't. When Utah became a state in 1896, Congress required Utah to permanently ban polygamy in its Constitution before it would grant the territory statehood. In 1899, after Mormon Church leader Brigham H. Roberts was elected to Congress as the Representative from the State of Utah, the House of Representatives refused to seat him because he still practiced and believed in polygamy.
Mormon Apostle Reed Smoot won the Utah Senatorial race in 1903. The Senate Committee on Privileges and Elections immediately initiated a trial to prohibit his seating—even though he was not a polygamist. The debate lasted four years. The Committee received 3,482 vitriolic petitions denouncing Mr. Smoot, polygamy, and the Mormon Church. It voted 7 to 5 to prohibit seating, but was overridden by the Senate with a vote of 42 to 28.
Again, World War I and World War II intervened in the assault on polygamy until the 1940s and 1950s when government officials from Utah and Arizona initiated raids on Short Creek, Arizona, charging the citizens with bigamy and illegal cohabitation. (Although the citizens of Short Creek claimed The Book of Mormon and the teachings of Joseph Smith as the foundation of their religious beliefs, none of them were associated with the Church of Jesus Christ of Latter-day Saints.)
Intermittent anti-polygamy activity took place during the next fifty years until on August 30, 2006, Warren Jeffs, a non-Mormon polygamist leader who had been on the FBI's "Ten Most Wanted" list, was arrested in Nevada. He was not tried for being a polygamist, however, but was convicted of being an accomplice to rape. The government's new anti-polygamy focus appears to be on child abuse, domestic violence, welfare fraud, and "child polygamy," rather than on polygamy itself.
Initially, Mitt Romney made fun of his polygamous ties, but on May 13, 2007, he appeared on CBS' 60 Minutes and described the Mormon doctrine of polygamy as "awful." This oxymoron raises the question, how much do people really know about the practice of polygamy in the Mormon Church? Should it be considered a political issue, or merely an historical religious practice?
Polygamy was embraced by early LDS Church members for spiritual reasons, but to outsiders and antagonists of the church, it was quite different. Anti-Mormons considered polygamy to be immoral, lustful, and womanizing, and decried it as "spiritual wifery." Today on HBO's drama/comedy "Big Love," polygamy is used as mainstream entertainment. Does this denote a change in the public's perception of polygamy?
To faithful members of the LDS Church, whether in Joseph Smith's time or today, polygamy is part of a commandment from God that is encapsulated within Section 132 of The Doctrine and Covenants, one of the books canonized by The Church of Jesus Christ of Latter-day Saints.
How many members practiced polygamy during the early years of the church? Perhaps as few as twenty-nine in Joseph's time and as few as 2% at any time before the Manifesto—a figure that is hotly contested and currently projected to be as high as 20%. But of course, that indicates that at least 80 percent of the early Mormons were monogamous, a figure that is apparently ignored by supporters and antagonists alike.
Even the church's founding prophet, Joseph Smith, was reluctant to take additional wives. His reluctance was overcome when he reported that an angel appeared and with sword in hand, threatened to destroy him if he did not obey the commandment.
As a practical matter, polygamist relationships differed little from monogamous ones (other than the number of wives involved). There were no rules. Some families succeeded and some failed. Some were happy, some were not. They were influenced by the same issues that affect families today: finances, health, age, living conditions, education, intellect, and religious commitment.
Divorce was possible in polygamous relationships. Brigham Young reportedly granted 1,645 divorces during his tenure as Prophet and leader of the church, including some of his own. Some were court-granted, but some were obtained in a more casual manner. Ann Eliza Webb Young, Brigham's twenty-seventh wife (and probably the most famous) pursued divorce through the courts, even though the marriage had not been recorded civilly. The court ordered Brigham to pay her $500 a month for an allowance and $3,000 in court costs. Brigham refused, and was fined $25 and one day in jail—which he served.
Why did early LDS Church members enter into polygamous relationships' The answer is simple; they considered it a sacred duty. Most women remained in their polygamous relationships because they had received a spiritual confirmation that the principle was true.
There are hundreds of books on polygamy. Some accounts present the lifestyle in a positive light, others are negative. Some are factual; some are just plain lies. The author's perspective is always evident. This book will answer many questions about the practice, but perhaps one of the most crucial questions to be considered is why? Why is there such a strong dichotomy of opinion on the subject of polygamy?
- Joseph Smith and others practiced polygamy starting in the early 1830s.
- Polygamy was initially practiced in secret.
- The Church of Jesus Christ of Latter-day Saints, also called "Mormons," practiced polygamy before (and to a limited degree after) the Manifesto of 1890.
- From its inception, the practice was illegal under the laws of the states in which the members of the LDS Church lived.
- The practice of (and belief in) the doctrine of polygamy was, from time to time, publicly denied during the administration of Joseph Smith.
- The LDS Church challenged the Congressional Acts that criminalized polygamy.
- The Supreme Court of the United States declared those laws constitutional.
- The laws passed by Congress during the anti-polygamy period (1862–1890) were instigated by both public hysteria and religious persecution of the Mormons. Today, such laws would, in all probability, be declared unconstitutional as a "bill of attainder" (a legislative act that singles out an individual or group for punishment without a trial).
- During the late 1800s and early 1900s, the government of the United States attempted to destroy not only the practice of polygamy, but the LDS Church itself.
- The critics of the LDS Church, both past and present, have always assailed the practice of polygamy. They have been particularly critical of the fact that Joseph Smith and other early Saints denied having multiple wives.
- Early church leaders denied polygamy.
Anti-Mormons persecuted early members of the LDS Church relentlessly. Lilburn W. Boggs, the Governor of Missouri, went so far as to issue an Extermination Order against the Saints. So the LDS leaders' denials, in one form or another, may have been merely a means of self-preservation, and they may have found support for their denials in the Bible where Abraham and Isaac lied to preserve their lives by claiming their wives were actually their sisters. In these and other Biblical stories, circumstances dictated a veiled response that preserved the integrity and sometimes the very lives of certain individuals, and allowed them to continue promulgating the word of God—as it apparently did the early Mormon brethren who were practicing polygamy.
Many of the revelations Joseph Smith received—including his first vision—came as the result of his questioning mind. During his retranslation of the Bible, he questioned why the ancients were justified in having multiple wives. The lifestyle obviously differed from the lifestyle with which he was familiar. Marriage was sacred in his society, instituted in the Garden of Eden by God Himself. How was it, therefore, that God justified polygamy? The result, of course, was the revelation on celestial marriage recorded in Section 132 of The Doctrine and Covenants, and all that it entailed.
The exact date when polygamy began in The Church of Jesus Christ of Latter-day Saints is unknown. Historians argue about it, but the exact date is immaterial. By 1842 it was being practiced in Nauvoo, Illinois, and was an accepted doctrine of the church—even though it was not publicly acknowledged and in some instances, was even publicly denied.
Emma Smith, Joseph's first wife, hated polygamy. On October 12, 1843, Joseph's brother Hyrum took the newly recorded revelation to Emma with the intent of persuading her of its authenticity. When he came back, Hyrum said "he had never received a more severe talking to in his life, that Emma was very bitter and full of resentment and anger."
A few days later, Joseph was so "weary of her teasing" and petitioning him to destroy the writing, that he allowed her to destroy the copy. He stated it did not matter because he new it perfectly and could rewrite it anytime. A copy of the revelation was preserved by Bishop Newel K. Whitney, and few knew of its existence until the temporary location of the Camp of Israel at Winter Quarters on the Missouri River in 1846.
This revelation, known today as Section 132 in The Doctrine and Covenants, deals with the subject of eternal marriage. It did not appear in The Doctrine and Covenants until 1876. Although the heading to the revelation states that it was recorded July 12, 1843, there is "indisputable evidence that the revelation making known this marriage law was given to the Prophet as early as 1831."
Emma continued to steadfastly deny the allegation that Joseph had other wives and claimed that the revelation was a fabrication concocted by Brigham Young to justify the plurality of wives doctrine. However, many writers have demonstrated that Joseph Smith had at least 34 wives, which contradicts Emma's position. Even the LDS Church's Ancestral File lists 24. Their ages ranged from 14 to 58 and some had living husbands, a relationship known as polyandry (one woman having multiple husbands). Joseph Smith taught that families, including interrelated families, would exist beyond the grave. These were holy and sacred relationships to him and to other members of the church and were only to be practiced by the pure and virtuous of heart.
It appears the most compelling reason for Joseph to live the law of polygamy, however, is the revelation itself. Verse 3 of the revelation states: "Therefore, prepare thy heart to receive and obey the instructions which I am about to give unto you; for all those who have this law revealed unto them must obey the same."
On August 17, 1835, a general priesthood assembly of The Church of Jesus Christ of Latter-day Saints gathered in Kirtland, Ohio, to approve the publication of The Doctrine and Covenants and to accept it as "a law and a rule of faith and practice to the Church." The book primarily contained the revelations Joseph Smith had received from the Lord, but it also contained three non-revelation items, two of which are no longer in the book. One of those items was an "Article on Marriage," which was presented at the conference by W.W. Phelps and initially accepted. The "Article on Marriage" was printed in The Doctrine and Covenants as Section 101 until it was deleted in 1876 and Section 132, the revelation on eternal marriage, was inserted.
Although the "Article on Marriage" dealt with various topics, it contained a paragraph that read as follows: "Inasmuch as this Church of Christ has been reproached with the crime of fornication and polygamy, we declare that we believe that one man should have one wife, and one woman but one husband, except in case of death, when either is at liberty to marry again."
This was the first formal denial of polygamy published by the LDS Church during its formative years. Although the revelation on the plurality of wives was undoubtedly received as early as 1831, it is evident that Joseph did not teach the doctrine to many people during his lifetime—privately or publicly. In fact, on several occasions between 1835 and his martyrdom, he and other leaders of the church denied the existence of both the revelation on polygamy and the fact that they had taken multiple wives.
Men and women began to persecute Joseph Smith as soon as they heard about his vision of the Father and the Son. His response to that persecution is recorded in his history:
Why persecute me for telling the truth? I have actually seen a vision; and who am I that I can withstand God, or why does the world think to make me deny what I have actually seen? For I had seen a vision; I knew it, and I knew that God knew it, and I could not deny it, neither dared I do it; at least I knew that by so doing I would offend God, and come under condemnation.
Many factors led to the Prophet's final arrest and martyrdom, but polygamy (or "spiritual wifery" as it was called by the Prophet's antagonists) and the destruction of the Nauvoo Expositor were the main causes. Nonetheless, his death did not destroy the church or its doctrines, and polygamy continued—albeit in secret—until the practice was publicly acknowledged by Brigham Young in 1852. Brigham Young said those who denied the plurality of wives doctrine would be "damned." Many other early church leaders also supported and lived the doctrine because they believed God had commanded them to and that if they stopped without His directive, as their persecutors demanded, they would be rejecting God.
Over the course of time, the Mormons were driven from four states by their enemies. When they finally settled in the western Great Basin, their enemies had to acknowledge that they could not physically destroy the church. Consequently, they attempted to destroy it and its practices through legislation—with predictable results.
Was it the government's relentless persecution of the LDS Church that caused the Lord to end the practice of polygamy? Yes. Did the revelation that ended the practice of plural marriage also end the belief in the doctrine of celestial marriage? No. The Mormon belief in Section 132 has survived, but the practice of polygamy has not.
Because Section 132 of The Doctrine and Covenants is the source of authority used by Joseph Smith and his successors for the practice of polygamy, it is examined in detail in this chapter. However, it is important to consider the following two positions.
First: The members of the Church of Jesus Christ of Latter-day Saints believe that Joseph Smith was a prophet, that he received the revelation on celestial marriage from God, and that he continued to receive revelations from God during the restoration of the gospel. Second: From its inception, there have always been antagonists against the practice of polygamy. It is important to note that most other Christian religions in Joseph's time (and many today) believed prophetic revelation ended with the Bible. As a result, it is little wonder that when Joseph claimed to receive open visions from God, many disbelieved him. And when he actually started to attract followers, people started to fear and hate him.
The revelation itself not only justified the ancient practice of polygamy, but commanded Joseph and the church to practice it. Understanding the commandment was simple; either obey and be blessed, or disobey and be damned. However, one section of the revelation, perhaps more than any other, has caused antagonists to revile against not only polygamy, but the church itself.
Selection to practice polygamy was not arbitrary. Men could not seek polygamous marriages without first having been properly selected to do so by church authorities. Moreover, if they asked to be selected, they could be denied.The law of plural marriage required the husband to show respect to his first wife by consulting her concerning a new marriage and seeking her consent. The rules governing this consultation are collectively called the Law of Sarah, one of the most controversial requirements of the law of eternal marriage as taught in Section 132. The law honors Abraham's wife Sarah, who agreed to abide in a polygamous relationship with Hagar, her servant, so that Abraham could have children.
The law of Sarah requires three things. First, the husband must teach his wife the law; i.e., that he has been commanded to live the law of plural marriage and is willing to obey that commandment. Second, the wife is commanded to believe the law, which means she must accept the commandment along with her husband if they are to reap the Lord's reward. Third, the wife must "administer" to her husband, meaning she agrees to support her husband in his desire to obey the Lord just as Sarah "administered unto Abraham according to the law when [the Lord] commanded Abraham to take Hagar to wife."
Antagonists accused the church of giving the first wife no real choice in the practice of polygamy—stating that she had no power to stop the practice. Why? Because if the first wife refused to obey the commandment, the church had the authority to override her decision and authorize the marriage anyway, exempting the man from the law of Sarah and relieving him of his wife's disobedience (verse 65). In other words, if both husband and wife are commanded to live the law, and the wife will not accede, it should not prevent her spouse from complying with the Lord's commandment.
While the implications and requirements of the law of celestial marriage might seem egregious and demeaning to some and exalting to others, its purpose is clearly defined in verse 63 of Section 132. The law was given so that members of the early Mormon Church could "multiply and replenish the earth and for their exaltation in the eternal worlds, that they [might] bear the souls of men," all of which they felt would glorify God.
The practice of polygamy became an immediate problem for Joseph and the church. Accusations of adultery, lasciviousness, and sexual perversion against the Prophet and others immediately arose. Perversion of the law also began by those seeking to sate their sexual appetites, resulting in the seduction of innocent women and adding fuel to the fire of controversy surrounding the practice.
The Morrill Anti-bigamy Act of 1862 defined polygamy as bigamy, and prohibited any person with either a living husband or wife from marrying any other person. It exempted divorce, annulments, and spouses missing for five years or more. The punishment for violating the law was a fine of up to $500 and five years in prison. The Act also attacked the Mormon Church by disincorporating it and escheating its property (valued at over $50,000) to the government. Inflamed comments preceded passage of the Act. Mormons were accused of immorality and of calling their wives "cattle" or "cows," and the territorial supreme court justices and members of Congress defined polygamy as a pernicious philosophy.
Despite its intent, prosecution against polygamy did not proceed under the Morrill Act; however, it did proceed under the Utah Territory Act of 1851 against adulterous relations.
Judge McKean, who was the appointed federal judge in Utah Territory, was "rabidly anti-Mormon and determined to enforce the national policy against polygamy despite all opposition." Brigham Young and other church leaders were indicated not under the Morrill Act, but under another territorial act against lewd and lascivious relations. Judge McKean made his intentions clear in that case:
It is … proper to say that while the case at bar is called The People versus Brigham Young, its other and real title is Federal Authority versus Polygamic Theocracy…. The one government arrests the other in the person of its chief, and arraigns it at his bar. A system is on trial in the person of Brigham Young. Let all concerned keep this fact steadily in view; and let that government rule without a rival which shall prove to be in the right.
The cases against the Mormon leaders were later dismissed when in 1872 the Supreme Court declared that the indictment juries were improperly impaneled.
There was little sympathy for the Mormons prior to 1874 and they had few friends in Washington. The failure of the Morrill Act to curb the practice of polygamy only heated the desire of Congress to destroy the LDS Church's political authority. Multiple acts were purposed after the Morrill Act with the intent of expanding the punishment against the Mormons, including one that attempted to "dismember [Utah], transferring large portions of the region to Nevada, Wyoming, and Colorado."
In 1873, President Ulysses S. Grant asked Congress to pass legislation that would ensure that the judicial system in Utah was no longer controlled by LDS Church members. In 1874, Congress passed the Poland Act which accomplished this goal. It nullified Supreme Court decisions favorable to Mormons, limited Mormon participation in juries, stripped the territorial attorney and marshal of most of their powers, restricted the jurisdiction of the probate courts, and eliminated the three-year statute of limitations in the Morrill Act which the church had been circumventing by sending polygamous men on three-year missions.
After passage of the Poland Act, it became obvious to the church that it could no longer avoid prosecution. The church's leadership decided it was time to test the anti-polygamy acts. The result was Reynolds v. United States.
George Reynolds was Brigham Young's private secretary and was selected to be the guinea pig to test the Morrill Act. He was also a polygamist. He was eventually convicted and the Supreme Court upheld the constitutionality of the Morrill Act. The Court declared that the First Amendment protected belief, but it did not protect conduct as pertaining to religion, and that "polygamy has always been odious among the northern and western nations of Europe" and therefore was an offence at common law, and "subversive of good order." The case has become the benchmark precedent for polygamy cases in the United States ever since.The Edmunds Act of 1882 was passed by Congress because even with the Reynolds decision, polygamy continued. The Edmunds Act officially made polygamy a crime. It also made cohabitation a crime, all of which could be charged in the same indictment. It further restricted Mormons from becoming jurors and holding registration and election offices. It eliminated their right to vote or hold public office and created the Utah Commission, which immediately instituted a "test oath" for women before they could vote.
Senator Edmunds continued his attack on polygamy and the church with passage of the Edmunds-Tucker Act of 1887. The purpose of the Act was clear: "Some provisions further tightened the polygamy laws. Others further restricted the civil freedoms of Mormons. A few were aimed directly at the church." The Act allowed wives to testify against their husbands in cases dealing with polygamy and it disenfranchised women. Further, the voter "oath" was expanded to men, public education was placed in federal hands, and the territorial militia was abolished. The Act specifically reaffirmed the disincorporation of the church, dissolved the Perpetual Emigration Fund Company, and prohibited the territorial legislature from enacting any law to bring people into the territory for any purpose. When compared to modern civil liberties, the prosecutions that occurred immediately after the Edmunds-Tucker Act was enacted clearly stepped "over the line to become persecution, [and signaled] clearly that it was Mormonism itself, not just polygamy, that the federal government wished to eradicate." Finally, after thirty years of legislation aimed at destroying the LDS Church, Mormon leaders were forced to acknowledge that polygamy had to go if the church was to survive. The practice was consequently discontinued with the Manifesto of 1890.
Doctrine & Covenants, Official Declaration—1
But the Manifesto did not renounce polygamy, just the practice of it. There would not be—nor could there be—a repudiation and denial of the revelation given to Joseph Smith as recorded in Section 132 of The Doctrine and Covenants without undermining church members' belief in prophets and divine revelation. President Woodruff merely submitted to the laws of the land by forbidding the practice of polygamy, and used his influence to convince the Saints to do the same.
The practice of polygamy continued in Mexico and Canada for some time after the Manifesto was issued. It even continued on a limited basis in the United States. This situation continued for a period of fourteen years until President Joseph F. Smith issued what has been termed the second Manifesto on April 6, 1904. This manifesto punished polygamous advocacy and marriages with excommunication.
It should be noted that neither the Manifesto of 1890 nor what has been called the second Manifesto of 1904 dealt with the problem of cohabitation. Nor does it appear that the government was interested in legally pursuing those still living in a polygamous relationship once the Manifesto was issued and Utah became a state. As a practical matter, polygamy continued to exist for a period of twenty or thirty years after the Manifesto, until those (either husbands or wives) who were living in polygamous relationships died. Once Utah became a state, the church property that had either been confiscated or placed in receivership was returned, and the church and the government settled into a state of mutual tolerance.
The social stigma of polygamy appears to continue even today. It is demonstrated by the rhetoric that is broadcast on the news every time a Mormon runs for national office. The presidential bid by Mitt Romney illustrates this fact. It is obvious that for some, hostility toward the LDS Church is still alive and well. Yet there are many members of the Church of Jesus Christ of Latter-day Saints who are currently serving as highly respected members of Congress, both as Representatives and as Senators, and it is unlikely that anyone would now challenge their ability to be sworn in on the basis of the church's continued belief in the doctrine of polygamy.
There were at least seventeen splinter groups that broke from the main body of the Mormon Church after the death of Joseph Smith. Most of these groups either failed to survive more than a few years or joined with some of the larger groups that have survived, the most prominent being the Community of Christ.
Additional breaks from the LDS Church came after the Manifesto of 1890 was published. These splinter groups left because they felt the church had abandoned the revelation given to Joseph Smith in Section 132 of The Doctrine and Covenants. At least seven of these groups eventually organized their own churches. All but one of these churches based their belief in polygamy on claims made by Lorin C. Woolley in the early 1930s. Woolley claimed that on the evening of September 27, 1886, John Taylor, President of the Church of Jesus Christ of Latter-day Saints, received a spiritual visitation from Joseph Smith, Jr., the Mormon Church's founder. He claimed that during this visit, Joseph Smith directed John Taylor to preserve the practice of polygamy and that John Taylor required each of the men in the room to promise to continue the practice. The Mormon Church has always stated that no such "revelation" exists in the historical records of the church kept while John Taylor was president, and from the diaries and other records from the period, researchers cannot place John Taylor in Centerville, Utah, at that time. Most of these break off churches still adhere to the major doctrines of the LDS Church, however, and all of them believe in The Book of Mormon. Their principal explanation for breaking away from the church remains the open practice of polygamy. However, since the issuance of the second Manifesto in 1904, it has always been the policy of the LDS Church to excommunicate any member of the church found practicing or advocating the practice of polygamy.
There is another group that requires notice here because of its dedication to the decriminalization of polygamy. Its name is TruthBearer.org, or the Organization for Christian Polygamy. This group is not affiliated in any way with the Mormon Church and is not a derivative of any break off from the church. At its website, there is a specific disclaimer that readsThis is NOT about fornication or adultery.
This is NOT about group marriage or wife swapping.
This is NOT about dishonest bigamy or infidelity.
This is NOT about underaged or arranged marriage.
This is NOT about any form of Mormonism.
This is NOT about redefining marriage.
TruthBearer.org is a fundamentalist, non-sectarian Christian movement founded by Mark Henkel and is based in Old Orchard Beach, Maine. The group has attempted to convince fundamentalist Christians and the ministers and pastors of fundamentalist Christian churches that polygamy is an acceptable doctrine of the Christian faith.
Just how successful Mr. Henkel will be in his personal crusade for polygamy remains to be seen; however, it is evident from a review of his interviews and articles (which appear on his website, TruthBearer.org) that he has not been subjected to the same intense persecution as those who practice polygamy as a direct result of Joseph Smith's revelation.
• Lawrence et al. v. Texas
• Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao Dovegetal et al.
Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing
The amendment passed by public vote on November 3, 1992.
This amendment to the Colorado Constitution came about after Aspen, Denver, and Boulder, Colorado, had passed ordinances banning discrimination in various categories based on sexual orientation. The Colorado courts enjoined enforcement of the Amendment on the grounds that it violated the Equal Protection Clause of the Constitution. The decision was appealed to the Supreme Court of the United States where it was affirmed. The case is not pertinent to the subject of polygamy except with regards to the comments made in the dissenting argument written by Justice Scalia and joined by Chief Justice Rehnquist and Justice Thomas. They concluded that the majority of the citizens of Colorado had voted to "preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it." The Court then went on to note that the constitutions of Arizona, Idaho, New Mexico, Oklahoma, and Utah all did the same thing, and that it was forced upon them by the Congress. The "orientation" that had been prohibited in these states was polygamy—and it was forever prohibited. In doing this, Congress had singled out the moral standards of the minority and subjected them to those of the majority. Justice Scalia went on to say that "the Court's disposition today suggests that these provisions [those in the states? constitutions prohibiting polygamy] are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."
Although not directly related to polygamy, unless reversed by a remarkably conservative Supreme Court the trend toward religious freedom will inevitably continue toward the legalization (or at least the decriminalization) of polygamy.
• State v. Green
• State v. Holm
• State of Utah v. Warren Steed Jeffs
Rodney Holm is a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints. He was employed as a police officer in Hildale, Utah, when he was arrested and charged under the Utah Bigamy Act for his participation in a 1998 spiritual marriage to a young woman named Ruth Stubbs. At the time, Holm was legally married to Stubbs's sister. The State of Utah convicted Holm of bigamy. In his petition, Holm invoked the Lawrence case (a Texas case involving the civil rights of homosexuals) in his defense. Four of the five Utah Supreme Court Justices rejected the application of the Lawrence case. However, Justice Christine Durham, after enumerating multiple examples, disagreed with the majority of the Court, stating that the Utah Statute "oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults."
Perhaps the most interesting of the Utah cases is that of State of Utah v. Warren Steed Jeffs.
Warren Jeffs, self proclaimed prophet of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), was arrested outside Las Vegas, Nevada, on August 28, 2006. Jeffs had not been charged with polygamy, but rather with two counts of assisted rape due to the alleged forced marriage of a 14-year-old girl to her first cousin. Additional charges were filed against Jeffs in Arizona. In addition to the Utah and Arizona charges, a federal grand jury returned an indictment which charged Jeffs with flight to avoid prosecution. Prior to his arrest, he was placed on the FBI's ten most wanted list, was the subject of the show, "America's Most Wanted," and had a $100,000 reward posted for his capture. After eluding arrest for months, a simple traffic stop in Nevada led to Jeff's capture. He was placed in custody and eventually extradited to St. George, Utah, for trial. After several days of testimony, the jury found Jeffs guilty of two felony charges.
This is an example of how government authorities are presently prosecuting polygamists. Jeffs admits to living in polygamy, but rather than prosecuting him for that crime, the state chose to pursue the "assisted rape of a minor child" charge.
The broad scope of the questions before the Supreme Courts of various states and the United States revolve around three clauses in the Constitution: the Free Exercise of Religion clause; the Equal Protection clause; and the Due Process clause. In an article written after the Utah v. Green case, Jonathan Turley, a Professor of Public Interest Law at George Washington Law School, stated:
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.
It is unlikely that the long-standing, moral tradition in the United States of one wife and one husband will be overturned anytime soon by any court in the land, especially considering the movement in many states and Congress to pass legislation defining marriage as between one woman and one man in an attempt to curb homosexual demands. Some dissenters, like Utah Supreme Court Justice Durham in the Holm case, and United States Supreme Court Justice Scalia in the Romer case, will continue to speak out as the obvious disparity between polygamists and other minorities continues to widen. It appears obvious, however, that if a proper case involving polygamy came before the Court, the Court would eventually decriminalize polygamy rather than legalize it.
As a practical matter, polygamists continue to walk unmolested in many areas of the country. Interestingly enough, the decriminalization of polygamy would actually lessen its influence on politics. Ideally, anything that cannot be legally discriminated against (gender, race, religious beliefs, sexual orientation, etc.) eventually becomes something that the majority doesn't worry about. It appears that the simplest way to remove polygamy as an issue is to legalize it, which may soon be the case in Canada.
Canada views the polygamy issue much differently than does the Government of the United States. There is a movement in Canada to recognize polygamous marriages as legal, or to at least decriminalize them. As a practical matter, Canada may as well take this action since the Fundamentalist Church of Jesus Christ of Latter-day Saints has been openly practicing polygamy in Bountiful, British Columbia, Canada, for more than sixty years.In a study commissioned by the Canadian Justice Department, the paper argued that "the Criminal Code banning polygamy serves no useful purpose and in any case is rarely prosecuted." The study was commissioned after the Canadian government legalized same-sex marriages in 2005.
In an interview with The Canadian Press, Martha Bailey, the study's chief author, stated, "Why criminalize the behaviour? … We don't criminalize adultery. In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behaviour for criminalization?" The report also concluded that the courts might well rule that Canada's law banning polygamy was a violation of its constitutional guarantee of freedom of religion.
Even though members of the LDS Church believe the Lord directed the practice of polygamy to cease when the church was faced with destruction by the U.S. Government, at least four circumstances verify the fact that the church still believes in the doctrine of polygamy as recorded in Section 132 of The Doctrine and Covenants.
First: Section 132 of The Doctrine and Covenants remains a part of the official scriptures of the LDS Church.
Second: A man may be "sealed" in a temple ceremony to a second woman after the death of his first wife, thereby being married eternally to more than one wife.
Third: A man may be "sealed" to a second living wife after he has been civilly divorced from his first wife without having received a cancellation of the first sealing. He would therefore be sealed eternally to two living women at the same time, yet only civilly married to (and cohabiting with) one.
Fourth: The LDS Church also performs polygamous marriages (temple sealings) by proxy on behalf of the dead in situations where the man had more than one wife during his lifetime.
Let me emphasize again, however, that today the LDS Church does not practice nor condone polygamy temporally (while the husband and wives are all alive). But because the LDS Church practiced plural marriage for more than fifty years during the nineteenth century, it will never be completely disassociated from it. It is part of the church's heritage. Mormons believe the Lord had a reason to restore the practice to mankind in the 1830s and while there may be a plethora of hypothetical explanations presented as to why, the only reason that matters to the Mormons is that it was a commandment from God, as the revelation in Section 132 states.
When the subject of polygamy is raised, it is hard to remain neutral. The concept generates sides: religious sides, social sides, moral sides, and political sides. Mitt Romney is only the latest member of The Church of Jesus Christ of Latter-day Saints to campaign for a major political office, but should he win the Republican nomination in 2008, the Mormon enigma of polygamy will once again rear its controversial head.
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