Two’s Company: How About Three or More?

Posted in: Family Law

On May 12, 2020, an amendment to Utah’s law against bigamy went into effect. The amendment had been controversial. It barely got through the legislature. But it did get just enough votes; and the governor signed it into law. Newspapers have claimed that the new law, as the Salt Lake Tribune put it, essentially “decriminalizes” polygamy. This is a bit of an exaggeration, but the change is important given Utah’s central role in this country’s efforts to prohibit polygamy—and its stubborn persistence in some communities. Does this change signal that the state is giving up on a long-fought battle, or is it the mark of a broader social trend??

Polygamy Law in Utah: A Brief Primer

Bigamy has always been a crime in this country. It’s against the law in every state to have more than one wife—or more than one husband, though this is a much rarer occurrence. Bigamy was for a long time a state crime; and it was declared a federal crime in 1862 by the Morrill Act, a law aimed specifically at the Mormons that was upheld by the Supreme Court in 1878 in Reynolds v. United States. The Court rejected the claim that the ban violated the constitutional guarantee of the free exercise of religion. Utah’s admission to statehood was conditioned on its prohibition of bigamy.

Bigamy is also regulated by marriage law in the sense that an attempted bigamous marriage is simply void. The crime of bigamy is in the attempt, as the second, simultaneous marriage can never be legally formed. In Utah, as well as in some other western states with polygamous communities, the criminal law of bigamy sweeps more broadly than in other states. In Utah, for example, bigamy is defined as attempting to marry or cohabiting with someone while married to someone else. This provision has been the subject of several legal challenges, most famously by Kody Brown, the husband (with four wives) on the reality show Sister Wives. (We cover Kody’s legal, familial, and geographical journey here, here, and here.)

Swimming Against the Tides

The Mormon Church abandoned polygamy as official church doctrine in 1890. Before then, it was viewed as a mandate for men in the church. Brigham Young, who took over after the death of Joseph Smith as the church’s leader, may have had as many as 55 wives, a fact among others that resulted in relentless attacks on the religion. But in the years since, many fundamentalist sects have broken off from the Mormon Church and continued to practice polygamy as part of their religion. Some of these communities became quite notorious. They were dominated by strong, charismatic patriarchs, who ruled with an iron hand. The elders tended to marry woman after woman; and many of these “wives” were extremely young. The communities were patriarchal; and sometimes abusive—little dictatorships. The women had little or no independent role; they were sex fodder, cooks, and drudges. Also, since so many women were recruited into the harems of their leaders, a situation arose (common in the animal kingdom), where Alpha males get to mate with females, and the rest of the males, the losers, are left to sulk on the beach or in the woods. In some polygamous communities, the situation was much the same: less-favored and younger men either had to do without, or leave the community, which many of them did.

Because many polygamists live lives intentionally out of the spotlight, it is hard to know how many polygamists there are. But one estimate is that there are 50,000 polygamous families in the United States today. For most of the last century, polygamists have been left alone by the law unless word creeps out that a sect is engaging in other crimes—child abuse, forced child marriage, rape, and so on. Polygamist leader Warren Jeffs is serving a life sentence for sexually assaulting two minors, whom he “married” at ages 12 and 15. Prosecutors in Utah have also enforced or threatened to enforce polygamy laws against a few outspoken advocates of polygamy—men who refused to accept the tacit compromise that they could live a polygamous lifestyle as long as they didn’t flaunt it. Tom Green was convicted in 2001 of four counts of bigamy; he taunted local prosecutors by appearing on popular talk shows to tout his lifestyle and to dare prosecutors to come after him. They did. Kody Brown was threatened with prosecution after sharing every detail of his polygamous lifestyle on television.

Although modern courts have upheld polygamy restrictions against a variety of constitutional challenges, the laws do not make as much sense as they might in the nineteenth century. When the Supreme Court upheld the Morrill Act in 1878, sex outside of marriage was a crime, and divorce was highly restricted. The social and legal changes over the last 140 years are too numerous to list, but surely the Supreme Court’s recognition that same-sex couples have a constitutional right to marry and consenting adults have a constitutional right to engage in sexual relationships suggests that the world is quite different today. If a man can engage in sexual relationships with any number of women (or men) at the same time, why should the state restrict his ability to marry them?

The Change in Utah Law

Before the recent amendment, Utah Code 76-7-101 provided that “[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.”

As amended, a person is guilty of bigamy “if (a) the individual purports to marry another individual; and (b) knows or reasonably should know that one or both of the individuals described in Subsection (1)(a) are legally married to another individual.” The extension of “bigamy” to include cohabitation while married to someone else has been eliminated. Bigamy occurs only when a person tries to legally marry someone while already married (or marry someone who is themselves already married to someone else). This resolves the issue for many modern-day polygamists who legally marry only one woman and merely cohabit with the others, often under the guise of a “spiritual marriage.”

But there are other changes effected by this amendment. If someone is guilty of bigamy, as defined above, they are “guilty of an infraction,” rather than a crime. This makes the offense about as serious as a speeding ticket. In other words, the Utah legislature says you can’t be a polygamist, but if you are, the legal risks are small.

The amendment also makes other changes, which are consistent with the way bigamy has been prosecuted historically. Only what we might call simple bigamy is an infraction. But an individual is guilty of a third-degree felony if the “individual induces bigamy: (a) under fraudulent or false pretenses; or (b) by threat or coercion.” Bigamy is a second-degree felony if the individual engages in bigamy and “in furtherance” of it commits another felony such as criminal non-support of a spouse or child, domestic violence, sexual assault, child abuse, vulnerable adult abuse, kidnapping, trafficking, or murder.

The language of the statute is unisex; but bigamists are overwhelmingly male; in theory, men and women in polygamous relationships are equally guilty; but in historical practice, only men were ever prosecuted for violating the law.

As amended, the statute in effect splits plural marriages into three types. Two of three remain serious crimes; indeed, the new law actually strengthened the penalties for one of the types. The third type was essentially given a pass. These categories—and the respective punishments—are consistent both with the historical approach to polygamy and modern mores.

One type is the old and traditional crime called “bigamy.” Criminal codes typically treated it quite seriously. A common scenario went something like this: a married man, restless for whatever reason, moves to a new town or country. He meets a woman, fancies her, woos her, and then marries her, without bothering to tell her that he was, in fact, already married. This new marriage was and is legally void. It is certainly dishonest—fraudulent in fact. The crime was particularly odious in the nineteenth century, since the second “wife” was in fact no wife at all, had no spousal rights, and was (moreover) living in sin, which was scandalous and shameful, even though the sin was not her fault. She was, besides, damaged goods in the eyes of society, and disadvantaged in the marriage market. Other bigamists were simply crooks, con-men, preying on a succession of women—like “Dirty John” of television and podcast fame. J. Aldrich Brown, in the 1880s, may have married as many as seventeen women, cheating them out of their savings before he disappeared into the void. Bigamy of both of these types of men is still criminal in modern penal codes, and Utah preserves the criminality of this type of bigamy by separating out bigamy “under fraudulent or false pretenses” as a felony.

Polygamy, however, associated with the Church of Latter-Day Saints (or Mormons) in the nineteenth century was a fundamentally different beast. It was kept secret for a while but then became blazingly open and above-board. Indeed, for church elders, polygamy was “celestial,” it was a duty imposed by the religion. In the middle of the nineteenth century, Mormon polygamy was a strong force in Utah Territory, where the faithful had fled in order to build community far away from the majority of “gentiles.” But the practice of polygamy evoked widespread rage, horror, and disgust in the rest of the country. As mentioned above, the federal government mounted a bitter and protracted campaign to stamp out polygamy in the Territory; this amounted, in essence, to a war against the Church of the Latter-Day Saints. And the federal government won when the Supreme Court, in Reynolds v. United States, denounced polygamy as an alien and barbaric custom.

There is also another type of polygamist; and it is this type that the amendment aims at. These polygamists do reject the 1890 revelation, and the decision of the mainstream Mormon church to ban polygamy. But these polygamists do not live in remote theocratic communities. They live lives that are on the surface conservative, bourgeois, utterly conventional. Of course, there is one admittedly big difference: the men have more than one wife. This kind of family is prominently featured on Sister Wives. Other than the fact that Kody has four “wives” (only one legally), their family life seems quite ordinary, even boring. Supposedly, the “sister wives” got along well with each other, helped out in running a complex household, and jointly raised their clutch of children. Peace and harmony throughout. (The current relationship drama on Sister Wives is as likely the result of the reality-show lifestyle as of polygamy.)

The newly amended Utah statute does not change the status of two out of the three situations. The cheating bigamist, who hides each wife from the other, is still a felon. So is Warren Jeffs, and the cultists who force young girls into marriages with dirty old men. Only the “sister wives” situation is altered by the amendment. Under the statute, polygamy itself is still illegal; but not seriously so. Wives number two, three, and six are still not legal wives. But nobody in the family can go to jail; and whether anybody in the family will actually even be asked to pay a fine seems dubious. This, in fact, is current practice. The question is: why? Or why now?

The Meaning of It All

To which the best answer is: why not? In the nineteenth century, polygamy had a dreadful reputation. A scurrilous literature denounced Mormon households (unfairly) as hotbeds of wild lust and bestiality. Yet, in fact, polygamy was a major offense against the norms embodied in the sexual code. At the time, only plain vanilla sex, and only sex between married people, was clearly legal (and desirable). Flagrant fornication and adultery were crimes. The idea of a man openly, proudly, and blatantly having sex with a whole cluster of women was seen as an attack on the basic norms of society, the rules that held it together, the norms that defined proper behavior. Of course, there were violations. But they were not dangerous as long as they did not flaunt themselves; or did not (as the Mormons did) attack the very norms themselves, and (horror of horrors) in the name of holy religion.

That was then, in the dim past, before the so-called sexual revolution. Law and society have changed dramatically. Adultery and fornication are no longer crimes in most states; where they survive, as fossils, the laws are rarely enforced. Today, a man can have a mistress, can have two mistresses, three mistresses, without breaking the law; similarly, a woman can have as many lovers as she cares to have, without risking jail time or fines. Polygamous husbands, after all, unlike men who have affairs, or keep mistresses, are not “cheating” anybody, not fooling anyway, not tricking anybody. The wives are “sister wives;” they all live in a single household, and share the cooking, the sewing, and the child-rearing—along with (of course) sex with the Alpha male.

The Utah statute has to be understood against the background of the sexual revolution. Utah is a conservative state; but it is conservative in the twenty-first-century sense, not the nineteenth-century sense. And it is part of a rapidly changing country. The United States Supreme Court struck down the Defense of Marriage Act (DOMA), outlawed sodomy laws, validated gay marriage. “Privacy” (in the constitutional sense) has been interpreted to mean a stamp of approval for all forms of sexual behavior, so long as the conduct is consensual. It has occurred to some people that these legal and social developments also cast doubt on the laws against polygamy. Moslems can have four wives: why not Americans? Lawsuits have been brought, asserting a right to have an extra spouse or two. None of these lawsuits have succeeded; but courts have at least taken them seriously.

The Utah statute thus reflects the sexual revolution. The underlying situation is, of course, pretty specific to Utah (perhaps a few other states). Polygamy is not an issue in New Hampshire or Mississippi. Polygamists of the bourgeois sort lobbied for the bill in Utah. Joe Darger, a man with three wives, tried to mobilize public opinion, on behalf of “plural families” who behave “responsibly,” and he organized a rally in favor of liberalizing the Utah law. A state senator, Deidre Henderson, spoke in favor of the amendment to the penal code; the existing law, she argued, had been a failure. It hadn’t “stopped polygamy,” and it “enabled abuse to occur and remain unchecked.” As noted above, law enforcement in Utah already had an informal policy of ignoring polygamy, as long as the polygamists kept to themselves.

The new bigamy law will probably do little or nothing to check abuse in the more cult-like offshoots of polygamy. To polygamists, too, it is probably something of a disappointment. Legally speaking, it is still true that a man can have only one wife. And, for that matter, only one husband. A woman can have only one husband. Or only one wife. But “polyamorous” people of any stripe are not going to jail, even in Utah; they are not likely to pay a fine either.

In contemporary times, penal codes have been stripped of many victimless sexual crimes. Many once-forbidden sexual practices are now permitted. This does not mean that there are no rules. There are definitely rules (legal and social)—evolving and complex rules, for example, about what “consensual” sex actually means. But they are not the same rules as obtained in the nineteenth century. Kody Brown and his wives can go on living together in one household. Society seems more and more willing to accept them. Warren Jeffs, on the other hand, is still beyond the pale.

Posted in: Family Law

Tags: bigamy, Polygamy, Utah

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