No Longer Stooopid

As I’m sure you’ve heard by now, a federal district court has ruled that the Utah anti-polygamy statute is in part unconstitutional, in effect decriminalizing polygamy.  Here is the decision if you would like to read it, although I’ll warn you it is 91 pages of dense legalese.  The court basically follows the dissent of Chief Justice Christine Durham in the 2006 Holm case, which I’ve considered to be the right approach, so I applaud this decision.

Even if you don’t read the whole thing, I would suggest you at least skim through the Historical Background section starting at p. 9, which is kind of fun for Mormon studies geeks.  Some of the names you’ll see cited in the footnotes include Sally Gordon, Richard Bushman, Todd Compton, Don Bradley (with his name misspelled as Bradly; d’oh!), Brian Hales, Newell Bringhurst, Craig Foster, Carmon Hardy, Nate Oman, Terryl Givens, Christine Talbot, Richard Anderson, Scott Faulring, Ron Walker, Rick Turley, Glen Leonard, Kathleen Flake, Edwin Firmage, and Rex Sears.  Note 18 on page 16 cites the FARMS Review, which I’m guessing is the first time that journal has ever been cited in a legal opinion!

My name does not appear in this opinion.  But it will be patently obvious to all right-thinking ‘Nacclers that the court’s decision is thoroughly grounded in my BCC blog post of October 9, 2011, “Meet the Dargers.”  How so, you ask?

At page 14 the court writes: “With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator in the saga of religious polygamy in Utah (and America).”  Clearly they were thinking of this from my blog post:

As was often portrayed on Big Love, we mainstream Mormons seem to think that if we’re publicly mean to polygamists, we’ll get a PR boost and people will finally figure out that we don’t practice polygamy. There were times that the Darger children were not treated well by Mormons. And that makes me want to puke. Whatever (in my opinion very marginal) PR gain we might gain from mistreating polygamists doesn’t make it worth it for us to abandon our commitment to treating our fellow man as Jesus Christ would have us do. (The Darger kids could be friends with my kids; the last thing teenagers in polygamous families want to do is push polygamy. Like any teenagers, they just want to be accepted. I’d invite the family over for a barbecue without the slightest concern. Our people are over-defensive vis-a-vis polygamists in my view.)

As for the holding in the case, at my blog post I gave a link to a clip where Bill O’Reilly interviews polygamists and “tries to goad them into wanting legalization of polygamy, but they wisely don’t take the bait. All they want is decriminalization, which I’m on record as supporting. In this day and age for polygamy simpliciter to be a felony is just plain stooopid.”

I’m pleased to announce that (pending appeals, at least) the law is no longer stooopid on this point.



  1. Wow, my prophecy has come true sooner than I’d expected. A good development. This will allow for religious freedom and also help air out the darker corners of some polygamous sects where real crime has happened and gone undetected because of the overall secrecy/separateness that has become necessary to protect their communities against government raids. And I get so tired of the wholesale condemnation of polygamy by many Mormons–like you said–seemingly extra venomous to save face historically. Maybe that can stop now.

    And kudos to all who helped shape the legal argument, including (apparently) my friend Don.

  2. Antonio Parr says:

    Marie –

    It is possible to be a Latter-Day Saint and condemn polygamy for reasons other than trying to save face.

  3. No, I hadn’t heard by now.

  4. Antonio: I realize that. I’ve had my own issues with polygamy. But I think for most a huge portion of it is wanting to not look stupid and backward.

  5. I’ve said for a long time that it is inconsistent and hypocritical to allow a man to have children by multiple wives to whom he is not legally married without legal punishment while punishing another man who has children by multiple women to whom he is not legally married – or to allow one man to have sex with more than one woman to whom he is not married but outlaw that for another man. It was the blatant double standard that bothered me the most. I want all crimes committed within polygamous arrangements to be punished if committed, but I want equality under the law.

    I also love the irony of being on both sides of this issue, historically.

    Does anyone know how this might play out in relation to the provision in the Utah Constitution regarding polygamy? Will it not have any real effect as long as no marriage licenses are sought – as long as, in the eyes of the law, the adults simply are co-habitating?

  6. Marie, I think for most of “us” it’s revulsion, pure and simple. Most can accept it back in the day, as an exception, practiced by others, but most want it kept back in the day and thank God we don’t have to choose whether or not to accept it now.

  7. Well, if we really felt a revulsion at such things we should have been at the forefront of re-criminalizing adultery. I think we really just want to fit in.

  8. Kevin Barney says:

    Ray, I had the same question about the constitutional provision. I believe the case focused on the statute. Maybe Nate or someone will pop by and answer your question.

  9. Meldrum the Less says:

    I guess the window of opportunity of getting rid of it legally has finally closed; although we as a church and people haven’t had the gumption to actually do anything effective since the 1953 Short Creek raid. Plural marriage becomes a permanent living legacy of some branches of Mormonism.

    Do you think if Wilford Woodruff / Lorenzo Snow / Joseph F. Smith / et. al. could have looked into the future and been able to know that by 2013 plural marriage would be decriminalized (which was only slightly longer than a century after the second manifesto) that things might have been handled differently?

    One concern I have is that so called fundamental Mormonism is growing; some by internal reproduction, but also by recruitment. This legal decision makes it much easier for them to successfully convert those among us vulnerable to their teaching. Nothing short of a complete repudiation of the practice by Joseph Smith an all since will counteract them.

    If we are wiling to throw Brother Brigham under the wagon for the racist Priesthood ban, then I suppose throwing Brother Joseph under the wagon for plural marriage is thinkable.

    Marie believes this ruling will “…help air out the darker corners of some polygamous sects where real crimes have happened and gone undetected because of the overall secrecy/separateness…” I find this unlikely and reflects a lack of understanding of fanatics like Warren Jeffs and his followers. These people actively seek separateness and secrecy;, it is not foisted upon them, as demonstrated by other more open sects like the AUB. They earnestly desire the strong authority and meek submissive obedient relationship. This remark is as naive as believing that if we legalize marihuana kids will stop smoking it. We may or may not have good reasons for legalizing marihuana but let us entertain no delusions that it will decrease the use of it. And likewise I foresee the most fanatic of our polygamists continuing to perpetrate their beliefs and practices under less legal pressure.

  10. Though I personally abhor the practice of plural marriage, it is not only morally wrong for Latter Day Saints to mistreat polygamists, it is hypocritical. Almost without exception, all modern-day polygamists in the United States are the theological offspring of Joseph Smith and Brigham Young. No matter how many manifestos the church may issue, it can’t put the genie back in the bottle.

  11. I think for some of us the revulsion to polygamy stems from fear. I know that in my quiet, irrational, middle of the night moments I am terrified that the legalization of polygamy is going to open the doors for bringing it back into the LDS church. Even while, during my rational, middle of the day moments, I understand the legal need to allow others to practice it.

  12. Kevin Barney says:

    If it helps, Nona, I’m entirely confident the Church will never, ever return to the practice of polygamy.

  13. J. Stapley says:

    Note that this doesn’t decriminalize polygamy. It decriminalizes “religious cohabitation.” I’m almost done with the decision and it is very well argued.

  14. Kevin Barney says:

    For those who haven’t read the opinion, “religious cohabitation” is the term the court used to describe “marriages” after the first legal marriage that do not have a marriage license or are in any way countenanced by the state.

  15. I don’t think it will make the practice less common. Quite possibly it will make it more common. I do think it will make it easier for victims in those communities to appeal to the outside world for justice and/or to renounce their upbringing and adopt monogamy with less social stigma attached to them. And because those things will be easier, victimization will be less common because it will be less easy to hide. And of course if consenting adults are involved and no crime has been committed, we should be prepared to stand aside just as my polygamous ancestors asked of society in their day. It’s the right thing to do as Mormons and it’s the right thing to do as citizens of a country that values personal liberty and religious freedom.

  16. Yeah, J and Kevin, I think it’s interesting that the case, in my words, says, “Anyone can live with multiple women, have sexual intercourse with them and/or have kids with them – as long as they don’t marry more than one of the women. In other words, we won’t punish adultery / fornication among consenting adults, unless you get a marriage license for more than one spouse. That would be a crime.”

    Ironic, I think, that the ruling upholds marriage between one man and one woman and simultaneously destroys any exclusive sanctity associated with that marriage. Again, given that such a standard is the default in our society now, I have no problem with it, legally.

  17. So what’s the big deal here, people? 90+ pages is a lot to read and there is no summary. But at first glance, it appears that there is one legally married Brown couple and several other women who are cohabiting with that couple. I suppose this is what is meant by “religious co-habitation.” And cohabitation is not illegal, even polygamist cohabitation. Suck it up, people. Now if Utah were a common law marriage state, that might make this a tiny bit more interesting. If I recall correctly, Washington, Idaho, Nevada, California, Arizona, New Mexico and Texas are common law states. Utah and Oregon missed that boat.

  18. Most (all?) states that have “common law marriage” stopped recognizing common law marriage quite a long time ago, although couples existing at that time might be grandfathered in. So it might be an issue for elderly polygamous families, but it wouldn’t be an issue for, say, the family in this case.

  19. J. Stapley says:

    Actually Dale, until this decision, religious cohabitation was illegal in Utah.

  20. Dale, the ruling strikes the cohabitation provision, and narrows the definition of “purports to marry”. A man and women can now have a religious ceremony, refer to one another as husband and wives, and not be guilty of purporting to marry. They just can’t seek or claim legal status from the state, which is not something that most fundamentalist desire. You don’t need a marriage license to get sealed in a fundamentalist temple. From the perspective of the fundamentalist, this ruling does decriminalize plural marriage in Utah.

  21. Dale:

    Utah does indeed recognize “common-law” marriages. See Utah Code Ann. § 30-1-4.5.

  22. J. Stapley says:

    According the decision Utah ceased recognizing common-law marriages in 1898.

  23. It’s my understanding that you have to petition the courts in order for the state to recognize a common law marriage. It’s not automatic.

  24. Tim, my recalled list was current about 20 years ago. Nate refers us to Utah Code Ann. § 30-1-4.5 for what appears to be the current situation. Yet my recollections agree with J. Stapley. Utah is no longer a common law state. So why don’t you all fight this one out and get back to the rest of us. Regardless,

    Co-habitation cannot be made illegal. Isn’t that what is behind all of this? If shacking up was made illegal, that would be religion infringing on what is otherwise looked upon as personal rights. Separation of Church and State, think about it, folks!

  25. Fun Fundy. No petition ever was required. The rule was that if a couple shacked up for 6 or 7 years [depending upon that state’s “common law” i.e. non statutory law], and during this time the couple held themselves out as being married to others, filing joint tax returns, etc. after the period of time passed, they would be considered married. Read Marvin v. Marvin [Lee Marvin, the Hollywood actor]. Lee’s mate sued for a share of his property, and she got half.

    Now I remember. My list was of community property states, not common law marriage states. And although California was not a common law state, she still got half. Only Texas is both a common law and a community property law state. Seems like the common law states were all midwestern, Texas up to Kansas and around those parts.. Utah may not be a common law state. But if a Texas couple meets the criteria for co-habitation while still living in Texas, then moves to Utah, Utah still treats them as married. I bet we can get a current listing on Wikipedia!

    I suppose “religious cohabitation” is cohabitation blessed by some religion when marriage is not to be licensed by the state. But cohabitation, whether religious or not, cannot be made illegal and survive a court challenge. I graduated from the Arizona State University Law School in 1993.

  26. “If it helps, Nona, I’m entirely confident the Church will never, ever return to the practice of polygamy.”

    Kevin, I’d like to hear your thinking on this one because, according to Joseph F. Smith, “The doctrine is not repealed, the truth is not annulled, the law is right and just now as ever, but the observance of it is stopped.”

    Don’t you think that leaves the door cracked a bit?

  27. My third post did not take. I copied the following from Wikipedia.

    “Common-law marriages can be contracted in nine states (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah) and the District of Columbia. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.[27] Otherwise, common-law marriages can no longer be contracted in any of the other states. All states, however, recognize common-law marriages that were validly contracted in other states, under the full faith and credit clause of the U.S. Constitution, principles of comity and their rules for choice of law and conflict of laws. In California, for example, a marriage validly contracted in another jurisdiction is valid even if it could not be legally contracted within California; and a marriage that is not validly contracted in another U.S. jurisdiction is not valid in California, even if it could have been legally contracted in that state. The only exceptions to this rule, in many states, are polygamous marriages, same-sex marriages (only in some states), and any other marriages that are deemed “odious to public policy”.”

    Utah appears to have sought to make illegal the cohabitation taking place among those “reformist” saints to get around anti-polygamy statues. But one cannot make cohabitation criminally illegal. Where Utah does recognize common law marriage, apparently after the couple petitions the court with the facts, it does not recognize common law polygamist laws.

  28. And finally,

    “In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. While not a community property state, Alaska does allow couples to opt into a community property arrangement; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.”

    Ain’t Wikipedia grand! Looks like Texas is the only community property and common law marriage state! And didn’t Mr. Jeffs live in Tejas? [I’m from Ft. Worth!]

  29. P,

    I recall speculation that where all of Heavenly Father’s spirit children come from Him and Him alone, we may have had more than a single spirit mother! “Truth is reason, truth Eternal tells me I’ve a Mother there.” And I recall speculation that where women tend to be more righteous than men, we need polygamy to match them all up to a husband in Life Eternal.

  30. Dale, please explain the relevance of such “speculation” to the reinstitutionalization (9 syllables by my counting) of plural marriage.

    (Obviously I’m stooopid, but no worries, this is Kansas.)

  31. Watermeister says:

    Plural marriage is not re-institutionalized by this federal ruling. However, concubines are now legal.
    Adultery statutes are moribund. Adulterous relationships formalized by religious ceremony, but failing to rise to the status of legally (law of the land) licensed marriage, or concubines, can not be prosecuted.
    Plural marriages are completely illegal.

  32. Kevin Barney says:

    My position that the Church will never return to polygamy is a pragmatic one. That Joseph F. Smith statement doesn’t change anything. The Church has been trying, hard, with only limited success, to put polygamy behind it for a century now. There is no way they are going to reverse course and say it’s now polygamy a-go-go.

  33. Honestly, I think the church is far too interested in being considered “Christian” to ever bring back polygamy, It just wouldn’t be good PR. But I am sure Emma never thought she’d be forced to live polygamy either, and that makes it hard to totally rest easy on the subject.

  34. marginalizedmormon says:

    There is no doubt that Joseph Smith was, while still living, sealed to multiple wives. But descendants of Joseph and any other woman besides Emma Smith still have not been found. I watched for the publication of a book that purported to have found evidence that there were living descendants of Joseph by one other woman. But no DNA evidence was shown, no proof; again, it was third, fourth, fifth hand “say so”–

    not enough for me.

    Whether Joseph Smith opened the pandora’s box (a recently useful two words) by actually ‘living’ with any of the women to whom he was sealed, or whether his being sealed to them was far too suggestive for those who remained living after his death–

    remains to be known.

    The fact is that Joseph Smith never, ever publicly encouraged or condoned polygamy, whatever his personal practice may or may not have been.

    In the meantime, it’s a cultural practice. I find it abhorrent, and more than a few LDS pioneers actually did–and did not participate and had plenty of righteous descendants (that’s something that has not been aired)–

    but I see no reason why people should be persecuted for living it. If there are those out there who are feeble minded enough to enter into such living arrangements, then that is just the way it is.

    The terrible mistake made by past leaders of the church was to turn polygamy into a spiritual requirement.

  35. Watermeister, I don’t believe that the modern notion of government licensing of marriage is even a factor in whether or not a woman is considered a wife or concubine. The covenants the man and woman make with one another would be the determining factor of status.

  36. Jack Stillwell says:

    I believe that the Judge indicated in his opinion that Utah’s complete repeal of all it’s prior marriage law in 1973, to be replaced by another set of laws, terminated the historical (prescedential) connection between Polygamy Era marriage law and the current marriage law of Utah. I believe that the judge is inclined to believe that his ruling technically leaves the Irrevocable Ordinance of the 1895 Utah Constitution untouched since ‘official’ polygamy is still illegal and one of the factors he creates for defining ‘religious cohabitation’ is that the parties involved place themselves ‘outside’ the legal status of marriage.

  37. Watermeister says:

    Fun Fundy
    Agreed, recognizing the extensive history of the governing entity being involved with heirship/property disposition, etc.

  38. P,

    In the after life, if there are more righteous women than men, we will have to have plural marriage, no? This is not my speculation, but what I have heard from others.

    Now as to the position of Joseph Smith Jr. and polygamy, as I recall, all of those on the Council of the 12 who were senior to Brigham Young, left when he announced the position on plural marriage. That catapulted BY to the front of the line. Then most if not all returned.

    I fully well agree that the Church of Jesus Christ of Latter-day Saints will not be returning to the practice of polygamy in the foreseeable future. That is clear. We are talking here about what Utah politicians have done to either ban or discourage others from practicing polygamy. And this legal opinion appears to be saying that if modern day polygamists wish to “practice” they may cohabitate, and cohabitation may not be made illegal, but no government will recognize more than the first wife as being legally married via common law to the husband. Is this not amply clear?

  39. And with regard to the practice of polygamy, I do not condemn those who practiced it in the later half of the 19th century. My great great grandfather entered the valley in the second wagon train which was the first wagon train of 1848. He was married to my great great grandmother and they joined the church in Illinois in the Nauvoo era. After his first set of children were raised he married four other women. Their descendants lived in Utah, Idaho and Arizona and became distinguished in business in those several places. From what I hear from my cousins, each family was headed up by the mother and her senior sons and they were happy and very successful pioneers. On my mother’s side, my great great grandmother immigrated from London via South Africa. Upon arrival in the Salt Lake valley as a single woman, she took up work with a midwife who could have no children. Eventually the midwife introduced my great great grandmother to her husband and suggested that they marry so that off spring would be possible. Children came. But when the feds made it impossible to cohabitate, my great great grandfather had to move out and live only with his first wife, this to avoid being jailed. That broke everyone’s heart. When a time capsule was opened in the Provo area during the 1950’s, a memoir of my great great grandmother was read expressing her sorrow and that of her family that the two women could no longer live together with their common husband. So I am satisfied that polygamy served good purposes when it was practiced. But today is a new day and a new time.

  40. Utah does not recognize common law marriages, although it has something similar:

    Gene Volokh at his law site analyzes this opinion and finds it a bit bizarre. It may not hold up on appeal. The comments are also interesting (the site has nothing to do with the Church):

  41. In appearing to have something similar to common law marriage, Utah cannot have common law marriage. It must be a form of unregistered statutory marriage that mirrors common law marriage, i.e. no initiatory ceremony with prior registration, just co-habitation where the couple hold themselves out to others as having been married, registration with the state and sufficient time doing so. Common law is one thing and statutory law is another, the twain not meeting.

  42. Dale – That there will be ‘more women than men in the Celestial Kingdom’, is a myth. There is no scriptural reference for it. Take this into consideration…children who die before the age of accountability get automatic admittance to the CK, correct? More male babies die each year than female babies, correct? Something to think about.

  43. ‘more women than men in the Celestial Kingdom.’

    I second Rob’s view that this is a myth. Men are idiots here on earth compared to women, but that is only because of the extra earthly testosterone which makes us stooopid, not because of any eternal spiritual inferiority. Take away our testicles, and we would be as righteous as women.

  44. Rob, Nate, read more closely. I never said I agreed with this view. I only repeated what I have heard others say. To quote myself,”If there are . . .” not “There will be . . . ” Did I touch a sensitive spot? And elsewhere I said “And I recall speculation that where women tend to be more righteous than men, we need polygamy to match them all up to a husband in Life Eternal.” I did not speculate. I merely recalled the speculation of others.

  45. What is the point of recalling the speculation of others if you are not, yourself, speculating? o.O

    And, to return to my original point–I was not saying that I think polygamy necessarily WILL be coming back into the LDS church, but that a fear of that is part of what fuels our treatment of fundamentalist polygamists. When you are afraid of something (and many many Mormon women are afraid of polygamy–browse the subject on FMH) you tend to want to distance yourself from any reminder of it.

  46. Nona, this is a blog. We discuss view points, our own and that of others, including the views of others who have yet to sign in to express their views. And where expressed view points might not take into consideration yet to be expressed view points, setting them out has potential great value. Clearly you miss this point!

    The wider news media has addressed this ruling, explaining that the interim AG will not appeal it until the replacement AG has time to decide. That seems wise. I speculate [Nona – this is my opinion] that the new AG will not appeal. No sense in having UTAH stand out among the other 49 states. In short, I agree fully with Kevin Barney, this was a stoopid provision of the law. Furthermore, if it were up to me, I’d repeal Utah’s statutory version of the doctrine of common law marriage. That is stoopid, too. I appears to me that this statute was the reason why the subject stoopid law on cohabitation for religious reasons was passed in the first place. Stupid is as stupid does, and my state of birth has been very stoopid here. And do not misunderstand me. I do not believe that common law marriage is necessarily stupid. But enacting it by statute is stoopid.

    I have polygamous great great grandmothers on both sides of my family. Not a single one feared it. It fact, when it was illegal to continue habitation after 1890, they mourned that fact. Three of the five wives on one side departed Utah with their sons heading up the migration, some to Idaho, some to Arizona. All did well, some especially well. The Brown sisters appear to value their situation. I respect them for that. But the work of the Utah Legislature is stoopid, very stupid.

  47. Kevin,

    I am not yet quite half way through this 91 page opinion and did not read carefully your piece before starting. But I too was a bit taken back by the observation on page 14, footnote 16, that Plaintiffs had made a colorable claim the we LDS can be viewed as both victim [visa via the early federal anti-polygamy legislation] and violator [perpetrator] of this faulty present day legislation. Plaintiffs demonstrated that where state government is dominated by us LDS, in this day and age, we have taken over from the feds of an earlier era. And those of us who have spoken out against the ways and means used to sanction our fellow brothers and sisters who adhere to modern day polygamist ways make valid statements. Why do we engage in such dubious pursuits?

    That our fellow church members in the Utah State Legislature would undertake such practices, doing so on such obviously faulty legal grounds is very disappointing to me. Boy would I like to sit in on a Constitutional Law class next semester at my old BYU campus. I would like to think that the professors will take to task the Legislature, and not Judge Waddoops.

    And for those of us who are not inclined to follow this 91 page dissertation on the law, understand that although today we have moved on to new legal reasoning, leaving behind that reasoning employed in 1879, the new reasoning still would apply to that old legislation. Polygamy is not liable to become legal in our modern Occidental culture.

    Now let’s revisit the more recent challenge to a CA Constitutional amendment prohibiting same sex marriage to see if we have done this before! Seems to me that we have parallel shortcomings there as well. Certainly the Defendant’s legal reasoning was faulty there, too.

  48. YoungModern says:

    I suppose I shouldn’t be shocked at how many Utah Mormons in this post and in the Gay marriage post see the state government as an organ for carrying out the directives of the church. But I am shocked at how, in their core, beneath face-saving rhetoric to contrary when outsiders can hear, that they fundamentally feel that their divine directive permits and even demands they skirt constitutional law regarding the establishment of religion. Mainstream LDS may change their religious affiliation to a polygamous branch? Well, clearly it’s the perview of the police and the courts to prosecute the dictates of their conscience.

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