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Tuesday, May 16, 2006

Polygamy
Shaun Martin

I'll dispense with any comments about the Great State of Utah and simply report that the Utah Supreme Court upheld today the bigamy conviction of a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints -- typically called "fundamentalist Mormons" -- holding that the criminal prohibition on bigamy both applied to the defendant's conduct and did not violate the federal or state constitutions.

Humor entirely aside, it is actually an opinion worth reading.  At least in my mind, the statutory and constitutional arguments raised by the defendant are far from frivolous.  Moreover, from a public policy perspective, why can't a person call someone whatever he wants, including his religious "wife"?  Everyone in this particular case (both the husband and the "wife") knew and agreed that their "marriage" was simply a religious ceremony, and they didn't intend or attempt to enter into a civil marriage recognized by the state.  What's the big deal?  If I want to introduce -- or simply refer internally to -- 100 different people as my "Morman wives," which everyone recognizes to mean merely my "religious" wives, why should anyone at all care -- much less be permitted to stop me?

As a follow-up, what if I'm married, connect at a deep level with another woman, get dressed up in a tuxedo, invite her to a ceremony in which she wears a white dress, we exchange lifelong vows, and I thereafter introduce my new female friend as my Smizmar.  Can the state ban that too?  Can the state also ban me from telling everyone that I love X, even though it's true, because X isn't my wife?  The only difference, I think, is that the name actually matters:  that Smizmar is different than "wife", and that loving someone (even for a lifetime) is different than being "married" to them.  But when everyone knows that a "Mormon wife" merely means "Smizmar" -- or vice-versa -- I'm not sure that this objection works.

I think that there may be potentially powerful second-level arguments that augur in favor of rejecting polygamy as a social institution, and assuredly don't support the practice in this particular case.  The second wife of defendant here was his civil wife's sixteen-year old sister, and the defendant was thus properly convicted (in my mind) of unlawful sexual conduct with a minor.  But when everyone walking into a "marriage" ceremony is fifty years old and is fully aware of what they're doing, I don't see the big deal about letting people call another person their Mormon wife -- any more than I'd care if they called that person their Smizmar.

One final thought.  Don't think that the law only applies to crazy fundamentalist Mormons.  It counts as bigamy under the Utah statute to "cohabit[] with another person" when you're married.  Remember that the next time you learn that a separated spouse has moved in with his new girlfrend before his divorce has become final.  Or when you invite your mother-in-law to live with you.  Hey, wait a minute.  The law provides a perfect excuse to prevent the latter.  "I'd love to let her move in with us, honey, but it's just that there's this statute . . . ."  Forget everything I just said.  I'm now all for the law.  Affirmed.

http://rightcoast.typepad.com/rightcoast/2006/05/polygamy_shaun_.html

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Comments

For some reason, most think of Mormons when considering polygamy, and completely ignore Muslims. Ploygamy is common among Muslims, and completely legal in many Muslim countries. Many of these plural marriage families visit or move here -- why do we not see them arrested? Why do we not hear demands for their prosecution?

FWIW, I agree with the post -- there are more important things to worry about that this.

Corkie the Dog

Posted by: Corkie the Dog | May 17, 2006 10:52:37 AM

Corkie - The plural marriages from that group aren't prosecuted because (a) the women don't come forward (they risk shunning at best and "honor killing" at worst) and (b) the authorities don't want to rile up that that group up (messing with Mormons or Christians is lauded by the press and garners no negative repercusions while messing with Moslems gets one branded a racist in the press and risks violent backlash).

Posted by: krm | May 17, 2006 11:36:56 AM

The short answer as to why your civil marriage vs. purely religious 'marriage' distinction doesn't work is that the Supreme Court says it doesn't. The 19th century Mormons tried getting by with just one civil marriage and multiple religious 'marriages,' and the Supreme Court upheld congressional statutes that outlawed the practice. But the practice still lasted for awhile because enforcement was, for the reasons you point out here, durn difficult. How do you prove that someone is 'cohabiting'? (which I believe means more legally than just living in the same residence).

Posted by: Adam Greenwood | May 17, 2006 12:11:50 PM

In Utah it is the bigamy statute that criminalizes bigamous cohabitation.
State law makes illegal cohabitating (generally defined by Utah courts as common residence with "conjugal association") with someone while married to another.

THAT is what strikes many as unconstitutional.

Morover, in Utah the bigamy statute is selectively enforced. Note that in the Holm case his second "spiritual wife" was sixteen years old. There are thousands of polygamists here (in Utah) who the government ignores so long as their relationships do not involve child abuse or welfare fraud.

Posted by: charleyfoster | May 18, 2006 12:36:24 PM

i'm ambivalent about gay marriage or plural marriage or other non-traditional forms of attachment. however, i can't see any logical reason to bar one non-traditional form and allow another. so, here's my vote for marriage consisting of two women, one man, and a goat.

Posted by: josil | May 20, 2006 7:53:03 PM

It seems that even in the face of this utah statute, those who want to have multiple wives can just refrain from having any legally recognized marriage, make ALL the wives "religious" in nature, and have some sort of co-tennancy in what they wish to share as "religious marital property" (if thats what they want).

Posted by: Karl | Jun 3, 2006 9:14:33 PM

i think the morman religion is sick, sick, sick, i had a morman neighbor once. she had eleven children, all of who were underfed, white as ghosts, hardly ever played outside, and an egomanical sense that their life and famioy were the beast in the world. i saw the wife taken advantage of and treated like she was an inferior being, while her husband was appointed bishop. the children were indeed very smart, and won scholorships to college but after two yrs dropped out to get married and propagate the morman faith. what about the children who really needed those scholorships her eight children won. fortunately all my children had scholorships to prestigious schools. it was a very sick way of life,. children with dark circles under eyes for lack of sun and playtime, and food.

Posted by: susan james | Sep 7, 2006 3:41:00 PM

Why not let the women decide? What about if some wome prefer to share one alpha male than being the only one for a loser?

Posted by: Jim Thio | Sep 18, 2007 9:17:56 AM