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Judicial Views about Polygamy Thesis


Introduction

The discussion of Polygamy in America has caused a great judicial debate regarding its legal status. Now, with the changing societal perceptions regarding same-sex marriages, many people question the illegality of polygamy (Irwi, 2004).1 This chapter investigates the judicial background informing the illegality of polygamy and the circumstances that led to its prohibition, throughout all 50 states of America.

To achieve this objective, this chapter proposes the contribution of the Utah wars, Morill anti-bigamy laws, Edmund Act, Edmund-tucker act, and Reynold vs. United States case as the main factors characterizing the judicial background of polygamy in America.

Furthermore, this paper shows the legal position of American laws towards polygamy, and the contradiction that these laws have with religious freedoms and individual liberties (Gallagher, 2006, p. 30).2

Judicial Background of Polygamy in America

Utah War of 1857 – 1858

The Utah war was an armed conflict between the Mormon Church and the U.S government. This war lasted one year, and included civilian casualties from both side of the divide. Even though the war was protracted, it ended through a negotiated agreement between the government and the Mormon Church (Hafen, 1958).3

The then president, James Buchanan, started this conflict by sending America troops to Mormon territories to control a rebellion in the state of Utah (against the government’s position to ban polygamy) (Hafen, 1958).4

However, the war turned out to be a mistake by the Federal government, because it gave the Mormons a renewed drive to practice polygamy, at least without any judicial interference, or any interference from the Federal government.

This happened because the government was widely criticized for its attack on Utah, especially because they had not properly ascertained accusations that the state was rebelling against the government (Danver, 2011, p. 383).5

Observers also criticized Buchanan for failing to notify Utah’s governor about the intention of the Federal government to attack the citizens of Utah. These criticisms prompted the government to leave Mormons alone. Indeed, as will be seen from the Morill Anti-bigamy law, the Utah wars of 1857 and 1858 gave Utah a renewed judicial will to practice polygamy.

Morill Anti-Bigamy Act

President Abraham Lincoln signed the Morill Anti-bigamy Act after the Utah wars of 1857 and 1858 (Gallagher, 2006).6 Here, it is critical to note that the Mormon debate, and the willingness of prospective presidents to criminalize polygamy, characterized the American presidential elections of the mid and late 1800s.

Lincoln rose to power on this promise. Indeed, the failure of President Buchanan to introduce a lasting solution to polygamy gave the new president, Abraham Lincoln, the opportunity to find a lasting solution (legally) to polygamy in America. His remedy was the Morill Anti-bigamy Act.

However, since the failure of the Utah wars gave Mormons a fresh will to fight any attempts (legally) at constraining their religious right to practice polygamy, President Lincoln willingly failed to enforce anti-polygamy laws in Utah (Gallagher, 2006).7

The lack of law enforcement was a tactical move by Abraham Lincoln to exempt Utah from abiding by anti-polygamy laws, in exchange for Utah’s loyalty to the Federal government during the American civil war.

Consequently, the American commanding officer for the Federal government received instructions to refrain from confronting Mormons regarding their practice of polygamy (even though the Morill law was in force) (Gregory, 2011).8 From the government’s unwillingness to enforce (fully) anti-polygamy laws, it is easy to see how the Utah war affected subsequent applications of anti-polygamy laws in America.

Nonetheless, Lincoln signed the Morill act into law in 1862 to provide a judicial background for the enforcement of anti-polygamy laws in America. Through the Morill law, the government intended to control the spread of polygamy in the state of Utah. However, the Morrill anti-bigamy law experienced subsequent modifications when the Edmund Act came into force in 1882.

Edmund Act

Edmund act (also known as the Edmund’s anti-polygamy Act) sought to make any acts of polygamy in America a felony against the Federal government (Norgren, 2006).9 This law also criminalized bigamy and unlawful cohabitation between men and women as a misdemeanor against the laws of America.

This second provision intended to overcome the legal hurdle against the implementation of the Morill act, which experienced challenges from the burden of proving that a polygamous marriage had actually occurred.

Indeed, most polygamous marriages occurred secretively and without any legal document to show its existence. The execution of this law occurred hurriedly as a reaction to the perceived immorality that polygamy introduced to the American society (Norgren, 2006).10

The Edmund act not only reinforced the Morill Act, but also introduced firm penalties to anybody found practicing polygamy (when convicted, offenders would lose their right to vote and their right to run for political office).

The main challenge affecting the applicability of this law stemmed from its contradiction with the ex post facto law, which sought to protect the right of polygamists who practiced polygamy before the act came into force (Arrington, 1992).11

However, in a Supreme Court ruling in the Murphy vs. Ramsey case of 1885, the court ruled that the law punished polygamists for practicing polygamy after the enforcement of the anti-polygamy law, and not for their practice of polygamy before the applicability of the law. Therefore, the state penalized the continued wrongful cohabitation of polygamous couples after the law came into force (Arrington, 1992).12

The government enforced the Edmund Act indiscriminately because it prosecuted people not only for practicing polygamy, but also for subscribing to polygamous beliefs of the Mormon Church. In fact, the enforcement of the Edmund Act was so firm that all elected officers in the state (Utah) left office, so people could check them for their stand on polygamy, before they resumed office.

Several prosecutions occurred under the Edmund Act. In fact, the government estimates that it prosecuted more than 1,300 men under this act (Arrington, 1992).13 Most victims were polygamous men, because the society perceived women as victims of this practice. However, the government arrested and detained polygamous women who refused to testify against their husbands.

Edmund–Tucker Act

The government introduced the Edmund-Tucker Act in 1887 to respond to a judicial dispute between the Mormon Church and the US federal government (concerning the practice of polygamy within the Mormon Church) (Norgren, 2006).14

Congressman Tucker and Senator Edmund introduced the act. Both sponsors proposed that the government should impose a penalty of $500 to $800 on anybody found to be practicing polygamy (Norgren, 2006).15 Both sponsors also criticized the Mormon Church for fostering polygamy in America as a religious practice.

From this statement, the Edmund-Tucker Act gave the federal government a reason to seize the assets of the LDS church (worth over $50,000) (Arrington, 1992).16 The government later assigned these assets for use in public schools around Utah. U.S marshals and their deputies implemented this law.

According to the provisions of the Edmund act, prospective voters and public officials had to denounce polygamy. Moreover, the act required prospective voters, jurors, and public officials to take an oath against polygamy before they continued their public service duties (Arrington, 1992).17 The Edmund-Tucker act also cancelled any laws allowing children born from polygamous unions to inherit property (Arrington, 1992).18

Finally, the act also required all civil unions to have a certificate, so that the prosecution of polygamous unions eased. This law changed the spousal privilege act to eliminate the protection of polygamous wives from testifying against their husbands.

To improve the enforcement of anti-polygamy laws, the Edmund-Tucker act paved the way for the appointment of federal judges to hear polygamy cases, instead of local judges (who were sympathetic to polygamists).

This law led to the abolishment of the office of territorial superintendant (in the education system) to pave way for a federally funded office that controlled school activities within Mormon strongholds. This move aimed at having an accurate assessment of the number of Mormon school going children (Norgren, 2006).19 The government repealed the Edmund-Tucker act in late 1978.

Reynold vs. United States

A fundamentalist Mormon (George Reynolds) filed The Reynold vs. United States case in 1878 (Johnson, 1948).20 Reynold claimed that the state should not prosecute him for practicing bigamy because it was his religious right to marry multiple partners.

He also claimed that the testimony of one of his wife could not be admissible in court because it was under another indictment. The state had earlier arrested him for marrying a second wife, Amelia Jane Scofield, while he was already married to another woman (Mary Ann) (Johnson, 1948).21

This case introduced a special argument in the American justice system, because it questioned the government’s commitment to protect the religious rights and freedoms of the American people. The US Supreme Court however, ruled that Reynold’s religious right was not a defence against the state’s law that criminalized polygamy.

A background of the acknowledgement that the federal government could not introduce a new law that contravened the first amendment informed this ruling. However, the court also said that anti-bigamy laws did not classify under laws that prohibited the first amendment to the American Constitution, or the freedom to exercise religious practices.

The court used a letter from Thomas Jefferson to justify its ruling regarding the existence of a clear distinction between religious beliefs and practices that stem from such beliefs (Johnson, 1948).22 The Court also ruled that religious beliefs were between man and God; therefore, the court could not intervene in such agreements.

However, actions arising from such beliefs (polygamy) were under the court’s jurisdiction, because it involved the relationship between two or more people. The court therefore believed that it had the jurisdiction over actions, and not the opinions held by religious people (Johnson, 1948).23

It should however, be understood that at the time of the ruling, fundamental Mormons believed that the growing trend by the federal government to pass laws prohibiting polygamy was a legal interference against the first amendment to the American Constitution, which gave them the right to practice their religious rights.

Because most Mormons believed so, they freely chose to ignore the Morill anti-bigamy act that criminalized their polygamous practices. Even as the Mormons felt victimized by the state, the government was still exploring ways of strengthening the already existing laws to criminalize bigamy in America.

Therefore, Reynold’s petition was untimely, because the government was strengthening its commitment to criminalize all forms of polygamy. From this background, the court indicted Reynold for bigamy and sentenced him to two years imprisonment, with a fine of $500, as stipulated by the law (Johnson, 1948).24

This ruling stood as a precedent for the criminalization of polygamy in America.

Legal Position towards Fundamental Mormon Polygamy

The legal position of the U.S federal government towards polygamy has been unfavorable to Mormons. Since the signing of the Morill Anti-bigamy law, the U.S federal government has been unforgivable in criminalizing polygamy, and all its forms. The subsequent signing of the Edmund Act, and the Edmund-Tucker Act, supported this commitment.

The presence of these laws has put the Mormon faith at crossroads with the government, and the American society, regarding their religious practices and the consequences of not following the law. The Mormons have had a choice to abandon polygamy, or continue with the practice and face the law.

To date, many Mormons have abandoned the practice and aligned their religious practices with mainstream American beliefs regarding marriage (monogamy). However, a cross-section of the Mormon faith still practices polygamy, although in small proportions.

America’s legal position towards polygamy has however not changed. Polygamy is still illegal in the United States and those practicing it, do so illegally. However, it is equally important to note that polygamy has gained a significant level of social acceptance among fundamental Mormons in America.

Many factors (including the changing societal perceptions regarding the practice, and the legalization of same sex marriages in some American states, such as, Iowa, Maine, Maryland, and Massachusetts) fuel its acceptance. Despite the existence of anti-polygamy laws, the states of Utah and Colorado have had a long history of condoning polygamy, so long as it is not public (Danver, 2011).25

The minimal convictions and commitment by the US government to arrest polygamous partners support the underground acceptance of polygamy within some states of the US. This minimal government commitment to arrest polygamists stem from the presence of tens of thousands polygamists in the U.S, who continue the practice without any strong legal consequences.

For example, within the two states mentioned above (Utah and Colorado), only two arrests have occurred within the last decade (although thousands of people practice polygamy within the two states) (Danver, 2011).26

In fact, the arrests of these two polygamous people only occurred because they openly advocated for polygamy. They therefore seemed a nuisance to the society, and an embarrassment to the state government. If the two polygamists never openly campaigned for polygamy, the government would not have arrested them.

In 2008, the Texas government also raided a fundamentalist Mormon church in the state (Danver, 2011).27 However, they only did so because they suspected that forceful marriages of underage girls (to older men) occurred within the church. If it was adults practicing polygamy (with no children involved), there would be very little state involvement (despite the illegality of polygamy in America).

The government therefore uses the law selectively (in extreme cases of polygamy, and only when polygamy gives way to social ills, such as, marrying underage girls). Anti-polygamy laws therefore exist because it is politically right to have them (because majority of Americans still do not fully accept polygamy). Moreover, if the government removes them, there would be a public outcry.

Unlike past decades when the government was very vocal about the practice of polygamy in the Mormon faith, the government has recently taken a backseat in the implementation of anti-polygamy laws. Instead, only polygamous acts considered highly immoral by the American society (such as the marriage of underage girls) are subject to prosecution.

The legal position of the American government towards polygamy in the Mormon Church has therefore stabilized in the recent years, because there have been fewer attacks on polygamists recently.

The government’s position regarding the dominance of polygamy in some Mormon sects has therefore been lukewarm because it only acts when polygamists become ‘too loud’ or engage in forceful marriages (considered unacceptable by the society). Otherwise, the government does not concern itself much with polygamists who foster the practice in secrecy.

In other words, when adults (with no history of child abuse or neglect) practice polygamy, the government rarely gets involved in such unions. This is the reason polygamy has found its way to American media. Now, polygamous shows are part of mainstream American television, such as, HBO’s Big Love and TLC’s Sister Wives.

Contradictions in the Application Polygamy Laws

Contradiction with Religious Laws

The willingness of Americans to accept diverse views regarding different social issues inform America’s legal and social fabric. This diversity is widely enshrined in America’s basic freedoms and rights. One basic freedom is the freedom of religion because the law grants Americans the right to practice whatever religion they chose, so long as these freedoms do not infringe on the rights of other people.

Broadly, proponents of polygamy have advanced the practice as a religious freedom. According to the First Amendment of the American constitution, the law should protect such a right. The exception to this rule manifests when polygamy infringes on the rights of other people. However, polygamy seldom infringes on other peoples’ right.

Therefore, it is difficult to find the right legal justification why the American law does not protect polygamy as a religious right. So far, anti-polygamy laws in America have taken a social dynamic instead of a legal one. In other words, American laws banning polygamy seem to represent the societal view towards polygamy as opposed to the legal view towards the same.

Therefore, while polygamy remains a religious right, the law fails to protect it as so.

The contradictions in the application of polygamy laws in America stem from its clash with religious doctrines, and the foundations that form the American society (Hitchcock, 2008).28 Many Americans are Christians. Christianity does not criminalize polygamy the way the American law does.

In fact, many polygamous men in the bible were loyal servants of God. David and Solomon are just a few examples of polygamous men in the bible. Spector (2011)29 says that it is a common religious practice among Christians to pay attention to religious teachings (first) before they pay attention to the ‘laws of man’.

This is the main problem that has faced the government’s will to implement anti-polygamy laws in America (because they face religious opposition from the Mormon Church and the few Christians who believe in Polygamy as a fundamental religious teaching from the Bible’s Old Testament). In fact, this opposition informs the Mormon belief that they hold the religious right to practice polygamy.

Apart from the Christian opposition to the application of anti-polygamy laws, the contradictions between the government’s law and Islamic laws governing polygamy clash too (Hagerty, 2008, p. 1).30

The conflict between Islamic laws regarding polygamy (and the government’s law regarding the same) has been largely unexplored by many researchers (despite the continued practice of polygamy within the Muslim population living in America). In fact, there has been minimal government involvement in the practice of polygamy within the Muslim population.

Islamic laws allow men to have up to four wives. It is therefore within their religious right to be polygamous. However, the American law criminalizes any form of marriage after a man marries only one woman. This contradiction shows the clash between government laws and Islamic laws, worldwide.

In fact, after reviewing the religious practices surrounding the application of polygamy in America, no other religion restricts the number of women a man may marry (besides Islam). In fact, Judaism and Hinduism also do not restrict the number of wives a man may have. However, there is no agreement regarding the way Muslims practice polygamy.

Some cohabit with more than one wife (in the same house), while others cohabit with many wives in different households. Since many Islamic laws do not seek the legal recognition of their polygamous marriages, it is difficult for the government to prosecute such polygamists.

Nonetheless, from the religious freedoms given to Christian, Islamic, Hindu, and other religious groups, there is a sharp contradiction between American anti-polygamy laws and religious laws (Hagerty, 2008).31

Protection of Individual Liberties

Another contradiction that undermines the application of the anti-polygamy law is the Supreme Court decision of 2003, in Lawrence vs. Texas (Ihara, 2008, p. 6).32 Lawrence brought this case to the Supreme Court to question the legality of homosexual relations in Texas.

The court ruled that Texas had no authority to dictate the private relationships of its citizens, or the way Americans chose to live their lives. In this regard, the Supreme Court struck down all sodomy laws in Texas and gave unprecedented freedom to its people to practice whatever private unions they wanted.

This ruling also said that the 14th Amendment to the American Constitution protected consensual sexual conduct of American citizens. The government therefore had no right to dictate how its citizens should live their private lives.

Previous court rulings that sought to undermine the liberties and freedoms of Americans were undermined by this ruling because the Supreme Court ruled that they were formulated using a narrow understanding of the liberties and freedoms enjoyed by the American population (Ihara, 2008).33

The above ruling was a landmark ruling in America because it symbolized a great milestone in the advancement of individual liberties. Moreover, many gay right activists considered the ruling a great milestone in the advancement of gay rights (Gallagher, 2006, p. 27).34 Since the court made this ruling, Americans have enjoyed unprecedented freedoms in their lifestyle choices and private relationships.

Practically, the Lawrence vs. Texas ruling made it impossible for the state to continue using the criminal code to define the private relationships of American citizens. Indeed, in the past, the American government had extensively used the criminal code to dictate even the most private and intimate relationships of the American people.

From the above developments regarding the protection of American civil liberties and rights, there has been a growing trend for the court to protect private relationships. This development has given new ammunition for polygamists to demand equal protection by the government.

The reluctance to grant polygamous unions the same consideration that same sex marriages have (to legalize, or not?), creates a contradiction in the application of anti-polygamy laws, and the protection of individual liberties. The biggest question that arises in this regard is why the American justice system seems to safeguard selective individual liberties, while criminalizing others.

Naturally, if the courts protect same-sex marriages as legal marital unions (in some states), polygamy should also receive the same treatment because it is also a marital union that consenting adults choose to engage in (Gallagher, 2006, p. 27).35

Conclusion

The inconsistencies in the application of anti-polygamy laws in America are obvious. Most of these inconsistencies were nonexistent during the initial criminalization of polygamy by the American federal government. However, advancements in the protection of American individual liberties (and the changing societal perceptions regarding private relationships) created these inconsistencies (Gallagher, 2006, p. 30).36

Comprehensively, there is a trend within the American judicial system to safeguard most American individual liberties. Unfortunately, this trend protects these liberties selectively because polygamy does not receive this judicial protection.

Irwi (2004)37 says that the initial reference and attachment of polygamy with same sex marriage is responsible for this neglect because critics of same sex marriages used polygamy as an argument against the legalization of same sex marriages.

Therefore, American civil organizations refrain from justifying the initial fear of its critics that the possible legalization of same sex marriages would lead to the legalization of polygamous unions. In this regard, the law continues to neglect polygamy. All 50 states of America therefore still criminalize the union.

References

Arrington, L. (1992). The Mormon Experience: A History of the Latter-Day Saints. Chicago: University of Illinois Press.

Danver, S. (2011). Revolts, Protests, Demonstrations, and Rebellions in American History: An Encyclopedia. New York: ABC-CLIO.

Gallagher, E. (2006). Introduction to New and Alternative Religions in America. New York: Greenwood Publishing Group.

Gregory, J. (2011). SkinHead Girl: Based on a True Story. New York: Author House.

Hafen, L. (1958). Mormon Resistance: A Documentary Account of the Utah Expedition, 1857-1858. New York: U of Nebraska Press.

Hagerty, B. (2008). Some Muslims in U.S. Quietly Engage in Polygamy. Web.

Hitchcock, J. (2008). The Supreme Court and Religion in American Life. Princeton: Princeton University Press.

Ihara, T. (2008). Living Together: A Legal Guide for Unmarried Couples. New York: Nolo.

Irwin, M. (2004). Women and Gender in the American West: Jensen-Miller Prize Essays from the Coalition for Western Women’s History. New York: UNM Press.

Johnson, A. (1948). Separation of Church and State in the United States. Minnesota: U of Minnesota Press.

Norgren, J. (2006). American Cultural Pluralism and Law. New York: Greenwood Publishing Group.

Spector, J. (2011). Seeming Contradictions: Polygamy (Plural Marriage). Web.

Footnotes

1 Michael, Irwin. (2004). Women and Gender in the American West: Jensen-Miller Prize Essays from the Coalition for Western Women’s History. New York: UNM Press.

2 Eugine, Gallagher. (2006). Introduction to New and Alternative Religions in America. New York: Greenwood Publishing Group.

3 Leroy, Hafen. (1958). Mormon Resistance: A Documentary Account of the Utah Expedition, 1857-1858. New York: U of Nebraska Press.

4 Hafen, 1958.

5 Steven, Danver. (2011). Revolts, Protests, Demonstrations, and Rebellions in American History: An Encyclopedia. New York: ABC-CLIO.

6 Gallagher, 2006.

7 Ibid.

8 John, Gregory. (2011). SkinHead Girl: Based on a True Story. New York: Author House.

9 Jill, Norgren. (2006). American Cultural Pluralism and Law. New York: Greenwood Publishing Group.

10 Norgren, 2006.

11 Leornard, Arrington. (1992). The Mormon Experience: A History of the Latter-Day Saints. Chicago: University of Illinois Press.

12 Arrington, 1992.

13 Ibid.

14 Norgren, 2006.

15 Ibid.

16 Arrington, 1992.

17 Ibid.

18 Ibid.

19 Norgren, 2006.

20 Alvin, Johnson. (1948). Separation of Church and State in the United States. Minnesota: U of Minnesota Press.

21 Johnson, 1948.

22 Ibid.

23 Ibid.

24 Ibid.

25 Danver, 2011.

26 Ibid.

27 Ibid.

28 James, Hitchcock. (2008). The Supreme Court and Religion in American Life. Princeton: Princeton University Press.

29 Jeff, Spector. (2011). Seeming Contradictions: Polygamy (Plural Marriage).

30 Barbara, Hagerty. (2008). Some Muslims in U.S. Quietly Engage in Polygamy.

31 Hagerty, 2008.

32 Toni, Ihara. (2008). Living Together: A Legal Guide for Unmarried Couples. New York: Nolo.

33 Ihara, 2008.

34 Gallagher, 2006.

35 Gallagher, 2006.

36 Gallagher, 2006.

37 Irwi, 2004.

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Newton, N. (2019, August 16). Judicial Views about Polygamy [Blog post]. Retrieved from https://ivypanda.com/essays/judicial-views-about-polygamy/

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Newton, Nolan. "Judicial Views about Polygamy." IvyPanda, 16 Aug. 2019, ivypanda.com/essays/judicial-views-about-polygamy/.

1. Nolan Newton. "Judicial Views about Polygamy." IvyPanda (blog), August 16, 2019. https://ivypanda.com/essays/judicial-views-about-polygamy/.


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Newton, Nolan. "Judicial Views about Polygamy." IvyPanda (blog), August 16, 2019. https://ivypanda.com/essays/judicial-views-about-polygamy/.

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Newton, Nolan. 2019. "Judicial Views about Polygamy." IvyPanda (blog), August 16, 2019. https://ivypanda.com/essays/judicial-views-about-polygamy/.

References

Newton, N. (2019) 'Judicial Views about Polygamy'. IvyPanda, 16 August.

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