As for how he’s being charged, and with what, the state is trying to establish a “tacit” marriage–that is, common law marriage.
Would it be easier or harder for them to subvert the rights of their women and abuse their female children if they could legally engage in multiple marriage in the open, instead of being forced to practice their lifestyle of choice underground and away from the scrutiny of the communty?
I appreciate the cites (although the Renyolds vs U.S. sounds like the opinion writer was insane…Polygamy leads to “despotism”??!)
What I’m not sure I understand though, is how can it be legal without a ceremony that has no legal power (does it?), but not legal with a ceremony? That Davis vs Beacon thing kind of touches on it, but still…If I make up Fenrisim, a religion that worships streaky bits of quartz AND allows polygamy, and I in my capacity as High Poohbah of the Church of Fenris go to a fivesome that’s been living together for 20 years and perform my streaky-bits-of-quartz ceremony, how in the world can their relationship suddenly become illegal? (OK, I’ll grant it is illegal, but how can such a law be upheld?)
And isn’t it a violation of the seperation of church and state?
Fenris
IMO, the unquestioned ban on polygamy has had a number of detrimental effects all related to the enforced secrecy of such relationships. It has forced those who practice polygamy in conjunction with other social ills such as child abuse, spousal abuse, and welfare fraud, and to institutionalize these combinations under a veil of secrecy in isolated regions. This magnifies the injury of these latter offenses against decency by increasing the likelihood that they will not be discovered or dealt with effectively by society. It also unnecessarily associates polygamy with child abuse, spousal abuse, and welfare fraud in the minds of the (non-polygamous) public.
It has also forced those who are polygamous but who do not practice child abuse, spousal abuse, or welfare fraud to unnecessarily conceal their loving and healthy relationships because of fear of unjustified criminal retribution from an unthinking society. Most of these relationships, however, remain well-concealed and few people outside of the participants and their close circle of friends are aware of them.
This combination leads to the situation where the “public face of polygamy” consists only of the seamiest polygamists of the first type mentioned above. The general public never hears about or knowingly sees the latter kind and has no idea that there are thousands, if not millions, of polygamous relationships going on all around them all the time harming no one, and thus no way to know that the ban merely forces people who have the misfortune of loving more than one other person at the same time from publicly acknowledging that love, and at the same time does little or nothing to avoid the ills that are wrongly believed to go hand in hand with polygamy. [sub]Wow, that was a long sentence.[/sub]
Far too many states make it a crime for individuals to both love each other outside of a state-sanctioned marriage and to publicly acknowledge that love. This is wrong, period. Government has no business interfering in the intimate relations of consenting adults.
. . . and . . .
My guess is that andros has it right, Fenris. Utah does recognize common law marriage. See Utah Code section 30-1-4.5, which you should be able to link to from http://www.le.state.ut.us/Documents/code_const.htm If the parties have promised each other to be husband and wife, have cohabitated, and continue to hold forth that they’re married, then they’ve effected a common law marriage. If they do all that while one or the other partner is already married, the marriage is a legal nullity–but they can be charged with bigamy:
Utah Code section 76-7-101. It appears that there’s also an old Utah Territorial Law against polygamy that was incorporated into Article XXIV, section 2 of the state constitution. I can’t seem to find that particular law, but I assume it works the same way as the bigamy statute, where the law does not recognize the marriage, but still criminalizes the purported marriage.
KellyM:
I disagree vehemently with that judgment that the condemnation of polygamy is merely reflexive and unthinking. Have you ever been to one of those polygamous communities in ID/UT/AZ? That is some weird, messed-up shit, like Jonestown just before the kool-aid. It is that way as a direct result of the community-wide practice of polygamy, which really does (in those situations) foster an incredibly harmful system of patricarchy. Those poor kids–especially the girls–never have a chance.
I think it’s safe to say that isolated instances of multiple-partner marriages aren’t going to do any real harm to the social fabric. But when it’s tolerated to such an extent that it becomes the basis of a modern-day community, serious social problems often result.
So don’t go trying to claim the state-sanctioned benefits of marriage that are reserved for only two partners. The government is totally uninterested in how many people you’re shacking up with–until you try to force them to give your relationships legal status or try to collect benefits reserved for marriage.
Nope. Check out the second quote above from Davis v. Beason.
Not in Illinois. It is unlawful in Illinois to “openly and notoriously” cohabitate with someone to whom you are not married. The State of Illinois has taken a direct and obvious interest in who you shack up with.
The same is true of several other states.
For the record, I believe in the abolition of marriage as a civil institution.
On your other point, I question whether those “fucked up communes” you refer to represent even close to a majority of polygamists. I also believe that the unhealthy aspects of those communities are exacerbated by their “outlaw” status, and that we could criminalize the unhealthy aspects of those communities without simultaneously criminalizing nonharmful polygamy. This was the entire point of my previous message.
IMO, the Court was wrong in that decision.
KellyM:
My point was not that it’s legal to shack up with as many people as you want. It was that the state and federal governments these days never enforce bigamy/polygamy/adultery laws unless you force them to do so. Go about your life without bothering the government or the neighbors and you’ll be just fine.
Additionally, I would argue that many of the worst abuses associated with polygamous communities in AZ/UT/ID are a direct result of the social structure, not their “outlaw” status. Though they’re pretty well isolated for the most part, these communities are hardly secrets to anyone. If the state wanted to, it could move in and toss everyone in jail next Thursday morning. Polygamous communities have been tacitly approved for half a century now.
On the other hand, there are obvious social problems when men take multiple wives. Sure, that might make anthropological sense when the men are so busy killing each other that there’s a surplus of women. But here in the real world, sex ratios are basically 1:1. So when you’re a male and you’re expected to take multiple wives, it’s a real bitch to turn the general 1:1 ratio into a personal 1:2, 1:3, or 1:5 (in the case of Tom Green). If you’re going to keep that system even remotely viable, you’ve got to keep every potential wife in the pool. That means it’s to the polygamist’s advantage to marry women as young as possible, keep them in the system once they’re married, and eliminate the competition for brides. Starting to see the pressures that promote pedophilia, spousal abuse, and the extreme forms of patriarchy in polygamous communities?
First, thanks, Minty for the help. At least I now have an idea of how they’re justifying this in a legal context. I really appreciate the input.
Kelly, I’m not so sure that all of Davis vs Beason was wrong. Well, actually, let’s forget the word “wrong” and use “rational” (I don’t know enough about law to argue right or wrong) This bit
makes a lot of sense. The stuff around seems largely…um…provincial(?) but the quoted part I’m OK with.
Fenris
Ah, Fenris, its undeniable majesty will soon make you a believer in the law. 
I think the quote you picked out from Davis is the crucial one. The modern Court would never go for the whole “Christianity” analysis. Well, maybe Scalia and Thomas would. But there’s no doubt that a lot of the rationale for the 1800’s polygamy cases has no force today.
Still, the basic principle that there’s a distinction between religious beliefs and acting on those beliefs is fundamental to the law. In a nutshell, as long as there is no legislative intent to burden religious practices, that law is going to be found constitutional. And it’s generally a real bitch to prove that the legislative body passed a law with the intent to mess with somebody’s religious practices.
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) is one of the rare examples in which a law was struck down because the record so clearly showed that the city council was pissed off at the practice of Santeria. Compare that to Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court decided that because drug laws were of general applicability and were not targeted at religion, Oregon was justified in denying the Indian plaintiffs unemployment benefits after they got fired for the religious use of peyote.
As in most situations in which actions, which may be argued to be benign or beneficial, are rendered criminal by statute, Mr. Green’s case involves the question of whether a legislature has the power to prohibit the behavior. The legal question is not whether the legislature should prohibit, but rather whether it can. For good reasons or bad that decision has been made, again and again.
If Greens’ case goes to a jury, he might well get off. Remember in Utah a fair percent of the population has ancestors who were polygamists. The legal question notwithstanding, a Utah jury might have real trouble convicting Mr. Green of something their great-great grandparents openly did in the 19th Century. This is why juries are simultaneously the gatekeepers of personal liberty and the most ignorant, wrong-headed and perverse institution in the law.
I never said the religious angle was valid, MG. If it were, Christian Scientists could kill their kids with impunity (not to mention what anti-abortionists could get away with).
Thanks for the trouncing, MG. I’ll come back for more one the cars heal.
Since his laundry list of crimes is so obsence, charge him on those counts (welfare fraud, statutory rape, sexual prostitution of a minor, contributing to the delinquency of a minor). The “bigamy” charge is just the Utah AG screaming to the world, “We’re normal, America!” It’s propoganda, not law.
-J-
The problem with Mormon fringe polygamy has absolutely nothing to do with their “outlaw” status. Their patriarical social structure does. “Giving away” child brides in “sacred marriages” go as far back as to the founder of the religion Joseph Smith himself. Not only are very young girls given away in marriage but often the additional wives are left alone, living in separate houses, to raise their children with no benefit of a father. As it is practiced today many of these additional “sacred wives” are on the Utah welfare rolls. This too is not a new practice.
Read “In Sacred Loneliness”, the authors name escapes me at this time but it is a well researched book, by a practicing Mormon, on the history of Mormon polygamy. It is not a “propaganda” publication produced by a Mormon critic. The author makes no judgement concerning Smith and his plural marriages but despite his best intentions the actions of the Prophet speak for themselves. This is his legacy to the fringe groups that believe they are simply following in the Prophet’s footsteps.
Needs2know
The legislative history on the federal ban on polygamy is very clear; the law was clearly and obviously intended to obstruct the Mormon practice of polygamy. The enacting legislation states as much in its preface. This has been discussed here previously.
Under the standard set forth in Church of the Lukumi Babalu Aye, the federal ban should properly fall.
Unlikely. The Mormon Church would likely take punitive action against any juror who voted to acquit him.
A quick look at the index of the U.S. Code reveals that there is no general federal ban on polygamy. There’s something about polygamy and immigration in 8 U.S.C. 1182, and there is also a ban on polygamy/plural marriages in the declaration of rights for the Virgin Islands. Neither provision makes the slightest reference to religion. I am unfamiliar with the 19th century federal legislation you reference, but it isn’t around today, and whatever anti-Mormon sentiment it expressed surely would not be read into the Utah bigamy statute Green is charged with violating. That statute makes no reference whatsoever to religion, and its contents are essentially the same as every other bigamy statute in the country. Utah’s generally-applicable bigamy statute would certainly be held constitutional, just like the general ban on peyote in Employment Division v. Smith.
And by the way, what basis do you have for the assertion that the Mormon church would punish any Mormon juror who voted to acquit this guy? The LDS church is certainly anti-polygamy, but claiming they would take punitive action against jurors for acquitting a criminal defendant borders on libel, IMHO.
First of all, this is a repeat thread (I’m sorry I didn’t think to point this out earlier). Please go read that thread, as I am repeating here much of what was said there, three months ago. (Be warned, though; this is one of the threads that led to Danielinthewolvesden getting banned.)
The reason Utah has a law prohibiting bigamy is that they are required to have one as a condition of their admission into statehood. Congress refused to entertain Utah’s application for statehood until Utah consented to a perpetual ban on polygamy within the state of Utah. If Utah repeals that statute, the state of Utah would cease to exist. Given that that condition was clearly motivated by religious prejudice, a good argument can be made that the resulting statute is “fruit of the poisoned tree”.
I know I researched the history of federal law relating to bigamy in Utah once and posted about it to Straight Dope, but I can’t find the thread just now. If I come across it, I’ll be certain to drop a link into this thread.
On the issue of Mormon retribution: the Church has a history of taking ecclesiastical revenge against people who “inconvenience” it or who publically espouse positions which are contrary to either the Church’s doctrine or the Church’s political stances. Excommunication of people who espouse tolerance for homosexuality is not unheard of. I would not be at all surprised to see them sanction a juror who voted to acquit a polygamist.
Surely you would recognize that there a difference between publicly taking a stand contrary to Mormon doctrine and voting to acquit a person alleged to have committed a crime opposed by the church? Yeah, if John Juror walks out of the courthouse and announces that he voted to acquit because polygamy was hunky dorey by him, you could reasonably expect the church to discipline him in some way. But there are any number of reasons Tom Green could be acquitted–most notably, by convincing the jury he did not purport to “marry” multiple wives because he “divorced” them before marrying the next one. I cannot imagine that the church would seek retribution against a Mormon juror who simply voted to acquit.