The accidental bigamist?
posted by Kaimipono D. Wenger
Warren Jeffs is in the news lately, and you may find yourself discussing bigamy at a cocktail party some time. Given that possibility, let me forearm you with a genuine, certifiable cocktail-party question guaranteed to dazzle and impress your friends and co-workers (or your money back):
In order to be convicted of bigamy in Utah, what is the minimum number of wives (or husbands) a person must have?
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The answer: One Zero.
Say what? Yes, the answer is one zero; you may absolutely be convicted of bigamy in Utah, with a single spouse or even with no spouse at all.
How?
Start with the Utah Criminal Code (conveniently linked here):.
76-7-101. Bigamy and Defense.
(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.
That’s the provision at issue, and it’s quite clear. You don’t actually need a second wife in order to be prosecuted for bigamy in Utah. All you need is a live-in girlfriend (or boyfriend) who is married to another person; or, alternatively, both a spouse (who you needn’t be living with) plus a live-in girlfriend/boyfriend. This is because the statute includes a cohabitation prong, in which regard it differs from the run of the mill bigamy statute (such as those of California and Virginia).
(And yes, the statute has been subjected to constitutional challenge, and it was upheld, even post-Lawrence although the court dodged most of the potential issues relating to the cohabitation prong).
Why is the statute structured this way? It’s an artifact of the history of polygamy prosecution in Utah.
Early Mormons instituted a system of plural marriage, starting in the 1840s and possibly a few years earlier (existing records are sketchy). This led to a number of bigamy prosecutions of church members in Utah, starting in the 1850s. However, early statutes such as the Morrill Act required proof of multiple marriages. Practically speaking, this led to all sorts of problems. To avoid prosecution, church members married in secret and without written records. Witnesses to the marriage refused to testify in these cases or “forgot” the facts. Church members could assert, in essence, “that’s not a wife — she’s just a girlfriend.” Federal antipolygamy statutes (Utah was a territory) were practically useless except in limited cases where a cooperating witness could be located (such as some cases in which plural wives had a falling out with a husband).
And so for decades antipolygamy prosecutors were effectively hamstrung in many cases by the requirement to show marriage. (Church members also used a variety of procedural devices, from habeas corpus to jury nullification, to fight prosecutors; these defenses were gradually removed over the same time frame.) Despite increasingly strident antipolygamy language from Congress, prosecutors were unable to really enforce Congress’s laws.
This ended with the Edmunds Act in 1882, which finally allowed for effective enforcement. A key change was the creation of the crime of unlawful cohabitation. (The act also included a number of other draconian provisions: it excluded all Mormons from jury eligibility and prohibited polygamists from voting or holding office; a follow up act disenfranchised all Utah women, confiscated all church property, and vastly relaxed evidentiary standards in polygamy cases.)
The unlawful cohabitation portions of the statute were remarkably effective. Between 1882 and 1893, there were 1004 unlawful cohabitation convictions under the act, compared to 31 polygamy convictions. The unlawful cohabitation provisions (which finally allowed for effectively wide-scale prosecution of church leaders and members) were one of the keys in finally creating an effective campaign against polygamy. (Other keys including the mass disenfranchisement, removal of jury protections, and mass property seizure under the Edmunds and the later Edmunds-Tucker act).
In 1890, the church gave in, and church leaders issued an official statement ending the practice of plural marriage. (As anyone who has watched Big Love knows, a number of breakaway sects continue to practice plural marriage; however, the mainstream LDS church prohibits the practice and will excommunicate anyone who engages in it.) Soon thereafter, Utah was admitted as a state.
Thus, it is no surprise that the existing Utah bigamy statute incorporates the concept of unlawful cohabitation. And that — because early Mormons stubbornly refused to cooperate with the existing statutes, leading to a very broad anti-bigamy statute — is the reason why you cannot legally move in with your married girlfriend if you live in Utah.
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Note 1: Just to clarify, the title of this post is not meant to suggest that Mr. Jeffs himself is an accidental bigamist, but rather to point out that the statute as written creates the potential for accidental bigamists.
Note 2: As a practical matter, the state doesn’t actually prosecute anyone for cohabitation unless they’re cohabiting for religious reasons. (The dissent to the Holm case, which upheld the bigamy law, spends some time on this point.)
So in the real world, it’s okay for you to move in with your girlfriend — unless you’re doing it for God.
UPDATE: The original post gave the answer as One. I updated it because the real answer is zero; the rest of the post text is unchanged. Thanks to anon commenter for pointing this out.
September 3, 2006 at 2:08 am
Posted in: Criminal Law, Religion, Weird
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Responses (8)
Anon - September 3, 2006 at 7:54 am
Do you have to have even one spouse? Aren’t you in violation of the provision if you are unmarried and knowingly cohabitating with a married person?
Matt - September 3, 2006 at 9:16 am
It’s pretty well established, isn’t it, that polygamy in fact continued in a much more secret way among the leaders of the Morman church for at least a few more years. Not that they secretly continue it now or anyting like that, but that they didn’t just all give it up right with the official declaration. I’m certainly not some scholar of this subject but that was always my understanding.
Kaimi - September 3, 2006 at 11:15 am
Oooh – good catch, anon.
Kaimi - September 3, 2006 at 11:20 am
Matt,
Yes. The 1890 declaration was not strictly enforced for 14 years. This led to a threat from the Senate not to seat Utah’s senator. Around that same time (and possibly in response to that threat) the church issued another official statement, along the lines of “we really mean it, no polygamy.” A few leaders who openly ignored _that_ statement were then excommunicated.
One added wrinkle — some church members outside the United States continued to practice plural marriage for a few decades more, until further action by church leaders in the 1920s and 1930s clarified that even non-U.S. church members were prohibited from practicing plural marriage.
Sarah - September 4, 2006 at 8:58 am
I love irony.
Kaimi, what if the spouses are married but separated? I was under the impression that in such a state neither spouse could do anything classified as “adultery,” but mostly because of the “if you start sleeping with your wife again, you’re no longer separated” thing and not because I’ve taken a family law course.
Anyway, it seems like being “legally separated” from one’s spouse would fix the problem. And, really, so would just not formally marrying anyone… I guess that’s why they waited till they could prove the stuff with underage girls before arresting Jeffs?
Shocked Catholic - September 4, 2006 at 9:28 am
This sounds terrible.
It seems that the mere performing of a religious ceremony is what turns the cohabitation into “purporting to,” because you haven’t “purported to” live as a married couple until you go through the religious ceremony that signals marital commitment to your community. This doesn’t seem to be a generally applicable law at all — it is targeted to suppress religious practice in the absence of conduct that is otherwise illegal (e.g., the girls are above the age of consent, they are cohabiting consensually, Jeffs did not seek out multiple marriage licenses from the state, etc.)
Why isn’t specifically targeting religious minorities an Equal Protection enforcement problem? You’re telling me an Equal Protection enforcement claim would fail?
Nate Oman - September 4, 2006 at 5:17 pm
It is worth pointing out that Jeff’s is not wanted for bigamy. Rather, he is wanted as an accomplice to a rape charge. He presided over the marriage of another polygamist to an underage girl who subsequently became pregant.
Dan Richards - September 5, 2006 at 7:21 pm
Actually, Shocked Catholic, specifically targeting religious minorities is no longer an option (even if the text of the offending law doesn’t directly refer to the minority). In a 1993 case, the Supreme Court held that a Florida town had impermissibly targeted practicioners of Santeria (an Afro-Carribean religion) when the town enacted laws against animal sacrifice. The circumstances surrounding the enactment of the laws left no doubt that the city council had Santeria squarely in its sights, and was specifically trying to prevent the practice of Santeria in the town. I think most of the Mormon polygamy cases would have played out differently if they had had to square with the Florida case (which came a century too late).
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