More on Quasi-Official Policies of Not Prosecuting Polygamists
posted by Kaimipono D. Wenger
From a fascinating Reuters article:
The attorneys general of Utah and Arizona said in separate interviews they had no intention of prosecuting polygamists unless they commit other crimes such as taking underage brides — a practice authorities said was rampant in a Utah-Arizona border community run by Warren Jeffs before his arrest in August.
“We are not going to go out there and persecute people for their beliefs,” said Arizona Attorney General Terry Goddard.
Adds Utah Attorney General Mark Shurtleff: “We determined six or seven years ago that there was no way we could prosecute 10,000 polygamists and put the kids into foster care. There’s no way that we have the money or the resources to do that.”
I can see why pragmatic considerations would weigh against broad criminal enforcement here. It kinda sounds like the widespread pre-Lawrence environment of mostly non-prosecution of stand-alone violation of anti-sodomy laws. I wonder if that’s a sign of the eventual fate of criminal bigamy laws . . .
June 13, 2007 at 4:48 am
Posted in: Criminal Law, Religion
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Responses (21)
Howard Wasserman - June 13, 2007 at 8:12 am
Forgive the elementariness of the question. But this came up while my wife and I were watching *Big Love* last night (sorry . . .). What, exactly, is criminally punishable about plural marriage in and of itself? It seems that some other crime must be present that may flow from plural marriage, such as tax or welfare fraud or child sexual abuse or child neglect? But assuming no attempt to get the state to recognize the later marriages or accord benefits from that marriage, from the state’s standpoint, what is the crime simply in a man living with multiple women “as husband and wife”?
Anon - June 13, 2007 at 1:44 pm
Interesting. The 2006 Utah Supreme Court opinion in State v. Holm, however, gave strongly-worded support to the Utah bigamy law. While the defendant in Holm had “purported to marry” an underage girl (even though the defendant stipulated he did not attempt to obtain a marriage license from the state and though he believed that his second marriage was religious in nature only and not legally sanctioned), the majority specifically stated it would not overrule the Utah bigamy law on religious or on post-Lawrence/substantive due process grounds.
Given the Utah AG’s statements that he won’t prosecute bigamists for their religious “beliefs” but only for statutory rape or other crimes, either the AG should be held in contempt (or whatever the legal process is) for not enforcing the bigamy laws consistently, or the Utah Supreme Court’s decision in Holm was wrongly decided.
Nate W. - June 13, 2007 at 4:56 pm
I think you’re right here, Kaimi. I helped work on the appeal for Holm (which may show my biases), and I think that Durham C.J.’s dissent is the better argument. So long as people are not seeking legal sanction, the private intimate conduct of two consenting adults (which is what is in issue in the cohabitation prong of the Utah bigamy statute) should be protected from state intrusion. If it is a constitutional right for gays and lesbians in Lawrence, isn’t it a constitutional right for heterosexuals as well?
Nate Oman - June 14, 2007 at 3:40 pm
Nate W.: I think that Durham made a fine argument for the application of Lawrence in her dissent, but I think that her reading of the Utah anti-bigamy statute and in particular her reading of the constitutional history giving rise to that statute was just plain flat wrong.
Howard: Polygamists are generally prosecuted for bigamy, the crime of entering into a marriage while a previous valid marriage exists. Also, in most western states bigamy is defined so that the second marriage need not claim to be a legally binding marriage. What is required, here, however, gets very murky. This was the issue in State v. Holm referenced above, which I think should have been brought as a void for vagueness challenge.
The second main hook is a crime called “unlawful cohabitation,” which consists of living as though one is married when one is not in fact married. It is a nicer offense for prosecuters because it does not require proof of a marriage, which is often tricky. How much living together as though one is married one has to do to unlawfully cohabitate, however, is vague. Also, the statute would apply to non-polygamist unmarried couples living together, although in practice no one is ever charged with unlawful cohabitation except religiously motivated polygamists.
KC - June 15, 2007 at 10:50 am
An overwhelming number of adults in plural relationships are NOT legally married. Basically, they are living together and calling it “marriage.” How that is criminally actionable, failing poster Nate’s aforementioned “unlawful cohabitation” statute, is beyond me. I knew a many who had about 6 “wives,” but he was legally married to only one of those six.
KC - June 15, 2007 at 10:51 am
An overwhelming number of adults in plural relationships are NOT legally married. Basically, they are living together and calling it “marriage.” How that is criminally actionable, failing poster Nate’s aforementioned “unlawful cohabitation” statute, is beyond me. I knew a many who had about 6 “wives,” but he was legally married to only one of those six.
KC - June 15, 2007 at 10:51 am
An overwhelming number of adults in plural relationships are NOT legally married. Basically, they are living together and calling it “marriage.” How that is criminally actionable, failing poster Nate’s aforementioned “unlawful cohabitation” statute, is beyond me. I knew a many who had about 6 “wives,” but he was legally married to only one of those six.
KC - June 15, 2007 at 10:51 am
An overwhelming number of adults in plural relationships are NOT legally married. Basically, they are living together and calling it “marriage.” How that is criminally actionable, failing poster Nate’s aforementioned “unlawful cohabitation” statute, is beyond me. I knew a many who had about 6 “wives,” but he was legally married to only one of those six.
Joe - June 15, 2007 at 11:32 am
Could you please post that again, KC?
It is such a valuable insight that I believe it deserves to be posted five times or more. Four times simply is not enough.
triticale - June 15, 2007 at 11:49 am
Joe, only one of KC’s postings was official.
Anyway, I wonder how the authorities in this area would deal with a polyamorous non-Morman hippie commune.
JT - June 15, 2007 at 12:01 pm
Notice the assumption here that a marriage sanctioned by a religious organization is not “legal”–only a state-licensed marriage seems to count. Very troubling.
And this is not a purely hypothetical issue. There are already rumbligs in Massachusetts (where gay marriage has been judged legal) that the Catholic church will be breaking the law if it refuses to recognize same-sex marriages. So much for the separation of church and state.
memomachine - June 15, 2007 at 2:30 pm
Hmmmm.
@ Howard Wasserman
Forgive the elementariness of the question. But this came up while my wife and I were watching *Big Love* last night (sorry . . .). What, exactly, is criminally punishable about plural marriage in and of itself?
It’s destructive to society.
1. Unless there are resulting effects from disease, war or intentional gender shifts, such as in China today, the average is that there will be slightly more women than men in the population. The problem with polygamy is that it creates an excess of unmarried men for whom there are no available women. This is a major problem in most polygamous societies where the excess men are “lost” usually in warfare, which accounts for why Islam generally conquered by the sword.
In America the polygamous communities deal with the problem of excess men by kicking them out when they achieve their majority.
2. The assumption people make is that the women involved in these relationships are doing so completely voluntarily. This isn’t always the case and often times requires a level of coercion and indoctrination to make it work.
3. Another problem is that people generally assume that mature women are independently making the decision to marry into a polygamous marriage. Instead the reality is that many of the women are “marrying” in their early to late teens. Again indoctrination and coercion are often necessary and it’s much easier to manipulate and control a teenager rather than a mature women.
4. Part of the coercion required to maintain control over women in polygamous marriages requires them to be physically and psychologically isolated to make the coercion and manipulation easier. Which might explain why the traditionally polygamous countries in the Middle East treat women the way they do.
So what is needed is that women in polygamous marriages must be prevented from acquiring the skills and knowledge necessary to be independent. And in so doing stunt the intellectual and emotional growth of the women involved.
5. And lastly because of the massive expense in maintaining several wives and a resulting horde of children most polygamous communities in the US are entirely or mostly dependent on public money paid out in welfare and other social services.
And this doesn’t even cover the aspect of elderly men “marrying” 15 year old girls.
PatH - June 15, 2007 at 3:35 pm
Excellent points, memomachine. I’d add a few more if only to expand on this.
When a man and a woman enter a marriage, especially in a common law state such as Texas, where I live, the presumption of mixed finances takes hold. Assuming the “wife” then stays at home to raise the additional children commonly found in polygamous relationships, the chance of the “wife” ever getting out of the relationship becomes very, very small.
Normally, making divorce hard is not a serious argument in favor of a ban. But in this case, when confronted with the coercion you correctly point out, especially with young women who have not had a realistic chance to establish an economic footprint, the lack of a real ability to establish a productive life outside of the polygamous relationship makes that relationship something which she could never escape.
In addition, let’s go right to the issue here and identify how legally demeaning the relationship is for a woman. Set aside basic moral equality between a man and a woman (to which I will return below), permitting polygamy necessarily treats a woman as a second class citizen to a man for all the reasons you mentioned above. It simply cannot promote a sound, eqalitarian legal system where all rights are equal among all men and women.
And this underscores the moral problem. Part of the very reason for laws is to protect the inherent and inalienable rights of citizens, not the least of which is basic moral equality. This principle of laws guided the court in Holm, as it guides every court in every jurisdiction reviewing bigamy contests. If a law permits a structure with an inherent feature where one citizen is necessarily economically and morally subjugated by another, that law would be antithetical to the notion of equality and thus antithetical to the democratic ideal.
I ask everyone, if only to graphically illustrate the point, would it be legal to allow a woman to voluntarily subjugate herself to a marriage where she was consistently abused by her husband? Of course not, and not even Lawrence would step in on that case. Now, what about if a particular law specifically permitted it? Again, of course not. It’s my content (and, I believe, memomachine’s) that this is analogous to a polygamous relationship, at least for society and basic notions of equality.
PatH - June 15, 2007 at 3:37 pm
Excuse me. I meant “community property” state. I think the point was still clear, but this makes it clearer.
GhostOfRobertHeinlen - June 15, 2007 at 5:40 pm
Memomachine: why are you assuming that “one man, many women” is the only form of polygamous marriage?
Hint: it isn’t.
The poly groups I know of are reasonably gender-balanced (one has 2 men and 3 women, but 2 of the women are bisexual… another has 2 men and one woman).
It’s not my chosen lifestyle, but I can’t imagine any interpretation where these people could be considered as “destructive to society”. They’re all gainfully employed, either as academics or working in the high-tech field.
Pedantic - June 15, 2007 at 7:54 pm
Gost,
he assumes that “one man, many women” is the only form of polygamous marriage because one man, many women is, by definition, the only form of plygamous marriage. One woman, many men would be polyandry. A group of several men and several women would simply be “polyamorous”, as mentioned above.
Ivan Wolfe - June 15, 2007 at 8:31 pm
Pedantic needs to check a dictionary. Polygamy means “many marriages” and so can mean many husbands and/or wives.
Pedantic is right on “polyandry” – but it’s oppositte is “polygyny” (many wives) – and both polyandry and polygyny are forms of polygamy.
Polyamory just means “lots of love”
GhostOfRobertHeinlein - June 15, 2007 at 10:46 pm
one man, many women is, by definition, the only form of plygamous marriage.
Incorrect, as Ivan Wolfe already pointed out.
If one is going to be “pedantic”, perhaps a visit to dictionary.com might be in order first.
Wacky Hermit - June 15, 2007 at 10:46 pm
Well hello there, Kaimi, I’m used to reading your writing on Times and Seasons, but it’s nice to see you linked by Instapundit!
PatH: “would it be legal to allow a woman to voluntarily subjugate herself to a marriage where she was consistently abused by her husband? Of course not”
PatH, please tell me in what state abusive marriages are automatically dissolved and/or women are not permitted to marry abusive men. All the abused women I know of married men who were abusive before marriage, and they were “allowed” to remain in their marriage until they got sick of the abuse and sought a divorce. The state did not intervene to either judge the quality of their potential mates or to legally dissolve their marriage against their will once abuse was proven in court. In Utah, California, and New Hampshire at least, nobody ever stopped them from marrying or staying married. Perhaps it’s different where you live?
PatH - June 16, 2007 at 3:43 am
Wacky – You correctly point out that no state allows for automatic dissolving of a marriage like that. However, my point was that state authority to step in and protect the woman in that situation is unquestioned. If a person is being abused, the state has the absolute authority to use its police power to (a) arrest the abuser and/or (b) protect the abusee.
My point was that if a law specifically permitted a man to abuse a woman in a marriage (a ridiculous hypothetical, but meant to prove a point), that law would be by definition unconstitutional as it would enshrine a position of inequality. And why? Because we hold these truths to be self-evident, that all Men (the generic usage) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
If one were to poll the American people, I would contend, admittedly without polling data, that the vast majority of people would contend that a law permitting the ritual and/or permissive abuse of women would be seen as destructive to those ends for the very reasons I mentioned.
Polygamy is, without a question, destructive to the equality of Men and, thus, illegal.
Ed Still - June 16, 2007 at 11:17 pm
Just to throw some more pepper into the stew …
Memomachine, would you also consider it to be destructive of society if there arose a religious or social movement that caused many “available” women to choose not to marry?
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