Utah to Decriminalize Polygamy?

[Bernard Gui]

Quote

Polygamists have lived in Utah since before it became a state. Eighty-five years after plural marriage was declared a felony, they still number in the thousands and have even been featured in the long-running reality TV show, “Sister Wives.”

Now, a state lawmaker says it’s time to remove the threat of jail time for otherwise law-abiding polygamists.

“The law is a failure. It hasn’t stopped polygamy at all and it’s actually enabled abuse to occur and remain unchecked,” said Sen. Deidre Henderson, a Republican. Her proposal to make bigamy an infraction rather than a felony has gathered significant support. It was unanimously approved by a legislative panel Monday, despite resistance from former members of polygamous groups who said it could embolden abusers.

The estimated 30,000 people living in Utah’s polygamous communities believe plural marriage brings exaltation in heaven — a legacy of the early Church of Jesus Christ of Latter-day Saints. The Polygamists may not face jail time under new Utah bill abandoned the practice in 1890 under pressure from the U.S. government and now strictly forbids it.

Unlike other states, Utah outlaws living with a second “spiritual spouse” even if the man is legally married to just one woman.

Henderson argues that law, and the legacy of raids as recently as the 1950s, has created a culture of fear that empowers notorious abusers like the polygamous leader Warren Jeffs. His followers wear distinctive, historic-looking dresses, and he is now serving a life prison sentence in Texas for sexually assaulting girls he considered plural wives.

On the other end of the spectrum are modern, consenting adult polygamists like Kody Brown of TV’s “Sister Wives." The show chronicling the lives of Brown and his four wives premiered on TLC in 2010.

The Utah attorney general has publicly declined to prosecute polygamists like him for years, but the bigamy law remains on the books. The “Sister Wives” family left the state shortly after going public with their TV show, saying they were afraid of being charged by local prosecutors.

They later lost an attempt to overturn the polygamy law in court.

The new proposal would significantly lower the potential penalties for consenting adult polygamists but keep harsher penalties for other crimes sometimes linked to polygamy, including the new addition of coerced marriage. Some pro-polygamy advocates have pushed back, arguing that those enhancements create an unfair association with their communities.

Others, though, say that easing restrictions on polygamous marriages won’t do much to help victims and could even make things worse. Melissa Ellis grew up in the polygamous Kingston group and said she worries that leaders could consider it a victory if the state lightened penalties.

“Those men are going to have more power and more control over their victims than they did before,” she said.

A representative for the group did not immediately return a message seeking comment.

Ellis also pointed to a recent law that allowed people leaving polygamous groups to access money from the state’s crime-victims fund to help get on their feet. “We need more laws in place that are going to help the victims,” she said.

More than 100 years after Utah's predominant faith abandoned the practice, the state continues to struggle with the best way to deal with polygamy, lawmakers acknowledged.

“At this point, I think this is better than what were doing now,” said Republican Sen. Daniel Thatcher.

https://www.fox5ny.com/news/polygamists-may-not-face-jail-time-under-utah-bill

 

This has been in the works for a while. Should polygamy be decriminalized? Why or why not? 
And please stick to the subject.

Also see https://www.deseret.com/utah/2020/2/10/21132327/polygamy-plural-marriage-law-bill-lower-penalty-felony-infraction-legislature

Edited February 11, 2020 by Bernard Gui

[rockpond]

2 minutes ago, Bernard Gui said:

Should polygamy be decriminalized? Why or why not? 
And please stick to the subject.

Yes - decriminalize.

I have no data to support this, just my opinion, but I believe that much of the abuse we see happening in polygamist groups is, in part, a result of pushing the practice and those involved into the shadows.  Maybe that's irreversible now but I still think that it would be better to decriminalize polygamy and just focus on prosecuting other crimes like statutory rape and abuse.

[bluebell]

Yes I think so.  I don't understand the point of adultery being legal but polygamy being illegal.  The only difference that I can see is that in polygamy, the man considers the other woman he is sleeping with to be equal to his wife in every way instead of just a mistress.

Edited February 11, 2020 by bluebell

[Ahab]

I think it is good that it is illegal because it should not be encouraged.  Our Lord has told us that a man should have only one wife unless he personally authorizes that man to accept another woman as an additional wife, so it is up to the Lord to determine when it is acceptable.

If we had a law of men saying it was okay, in all cases, that would be akin to saying it's okay for other men to say we can do what our Lord has said we should not do without his authorization. 

So, No, I don't think we should allow the opinions of other men to override what our Lord has told us.

[Calm]

Quote

Unlike other states, Utah outlaws living with a second “spiritual spouse” even if the man is legally married to just one woman.

This should be removed to be consistent with other states as the reason it was implemented was to target a religious group.

I think polygamy should be decriminalized at the very least to allow a focus on actual abuses and other crimes, IOW to avoid abusers, etc. attempting to use the distraction of claiming religious persecution.

[MustardSeed]

39 minutes ago, bluebell said:

Yes I think so.  I don't understand the point of adultery being legal but polygamy being illegal.  The only difference that I can see is that in polygamy, the man considers the other woman he is sleeping with to be equal to his wife in every way instead of just a mistress.

But traditionally far less than equal to himself in terms of power. Which I think is why we get emotional around polygamy. 
I think it’s disgusting but lots if disgusting things aren’t illegal. 
 

Edited February 11, 2020 by MustardSeed

[Scott Lloyd]

1 hour ago, Bernard Gui said:

This has been in the works for a while. Should polygamy be decriminalized? Why or why not? 
And please stick to the subject.

Also see https://www.deseret.com/utah/2020/2/10/21132327/polygamy-plural-marriage-law-bill-lower-penalty-felony-infraction-legislature

I’m meh on this subject, since the anti-polygamy laws on the books have not been enforced since the Short Creek raid of the 1950s. 

Edited February 11, 2020 by Scott Lloyd

[Robert F. Smith]

44 minutes ago, Bernard Gui said:

This has been in the works for a while. Should polygamy be decriminalized? Why or why not? 
And please stick to the subject.

Also see https://www.deseret.com/utah/2020/2/10/21132327/polygamy-plural-marriage-law-bill-lower-penalty-felony-infraction-legislature

Bigamy is polygamy, but the bigamy law is normally intended to punish a man who secretly has two separate wives and families.  It has nothing to do with religion.  Lightening the punishment is merely going to make it more attractive to keep two wives separately, perhaps in separate states.  That is no step forward.

Making plural marriage legal and regulated is probably the best approach.  That means that CPS and the courts would have full jurisdiction, just as they do for monogamous marriages.  The children would certainly benefit from a regulated, legal system.  The Utah Constitution would have to be changed, not simply statutory law.

Making plural marriage legal would mean that a woman could have multiple husbands, just as he could have multiple wives.  It would also mean that a woman could marry multiple women, or man could marry multiple men.

In my opinion, the LDS Church would only support monogamy.

[bluebell]

11 minutes ago, MustardSeed said:

But traditionally far less than equal to himself in terms of power. Which I think is why we get emotional around polygamy. 
I think it’s disgusting but lots if disgusting things aren’t illegal. 
 

I think you are probably right.
 

Though that was probably true of the power dynamic between men and women in monogamous marriages just a few decades ago as well, though not many had a problem with the wife being unequal in power to her husband back then. 

[Meadowchik]

How would this work at the federal level?

[JLHPROF]

It almost was decriminalized when Cody Brown win his case before being overturned on appeal.

Then a State Senator with an ax to grind because his daughter was in a polygamist marriage managed to get it upgraded to a higher felony.

This seems like a reasonable action since nobody has actually been prosecuted for polygamy in decades.  Why have a severe penalty on a law you don't prosecute?  It really keeps it in hiding for no reason.

[JLHPROF]

8 hours ago, Meadowchik said:

How would this work at the federal level?

I don't think it matters federally since we aren't really speaking of illegal bigamous marriages.

In Utah it's the spiritual marriages with no marriage licenses that are still illegal under the anti-cohabitation laws.  Those really can't be prosecuted in this day and age.  And Utah nearly struck them down until some had them upgraded.

[sunstoned]

12 hours ago, Calm said:

This should be removed to be consistent with other states as the reason it was implemented was to target a religious group.

I think polygamy should be decriminalized at the very least to allow a focus on actual abuses and other crimes, IOW to avoid abusers, etc. attempting to use the distraction of claiming religious persecution.

I agree.  I am not a supporter of polygamy, But it should be decriminalized for consenting adults. I would not be surprised if polygamy becomes legal sometime in the future.

[thatjimguy]

For some, it's something to do.

For others, it is their religion. We let people worship how they may. 

[The Nehor]

A couple of thoughts if they plan to legalize and not just decriminalize.

I would keep bigamy statutes around but limit it to cases where the spouses do not all know about each other. This preserves the ability to prosecute people using deception to marry more than one person without the spouses knowing about each other. It also keeps a husband or wife from marrying another spouse and the existing spouse is stuck with a “like it or lump it” situation they did not sign up for. For a marriage to be valid all previous spouses of both parties must sign the marriage certificate acknowledging they agree. If they do not there is no marriage. 

I would make it clear such a marriage is only valid in the state. This avoids a full faith and credit problem where someone marries in Utah and moves elsewhere and insists the marriage is still valid.

You would need to rewrite many divorce laws. If a man has two wives and one divorces him does she get half of everything they jointly own or a third? If the other wife was the only one making money can she sue for child support? Alimony? How do you file federal taxes?

[Meadowchik]

2 hours ago, The Nehor said:

A couple of thoughts if they plan to legalize and not just decriminalize.

I would keep bigamy statutes around but limit it to cases where the spouses do not all know about each other. This preserves the ability to prosecute people using deception to marry more than one person without the spouses knowing about each other. It also keeps a husband or wife from marrying another spouse and the existing spouse is stuck with a “like it or lump it” situation they did not sign up for. For a marriage to be valid all previous spouses of both parties must sign the marriage certificate acknowledging they agree. If they do not there is no marriage. 

I would make it clear such a marriage is only valid in the state. This avoids a full faith and credit problem where someone marries in Utah and moves elsewhere and insists the marriage is still valid.

You would need to rewrite many divorce laws. If a man has two wives and one divorces him does she get half of everything they jointly own or a third? If the other wife was the only one making money can she sue for child support? Alimony? How do you file federal taxes?

And what if there is a previous marriage in a different state? What happens for a divorce? How can a judge adjudicate asset distribution for a marriage in his state when the household includes another continuing marriage in another state?

[Amulek]

20 hours ago, Bernard Gui said:

Should polygamy be decriminalized? Why or why not?

I definitely believe that polygamy should be decriminalized, but I don't think society should do anything to encourage it either. 

 

[smac97]

A few thoughts:

1. There is a difference between decriminalization and legalization.  The former removes criminal penalties, but but does not mean that polygamous marriages are recognized as legally valid.  

2. I think that both will happen eventually.  Decriminalization, followed by legalization.  I wrote this in August 2016:

Quote

I predict that the concept of polygamy is on its way to becoming more sociopolitically palatable in the United State, not less.  Unlike the novelty of same-sex marriage, polygamy has a long, long pedigree in the world.  There are plenty of reasoned arguments that the decriminalization and subsequent legalization of polygamy has already begun:

• Huffington Pot: Legalize Polygamy! No. I am not kidding. By Jillian Keenan
• Vice: After Gay Marriage, Why Not Polygamy?  By Harry Cheadle
• CNN: It's time to reconsider polygamy. By Mark Goldfeder
• The New American: Is Polygamy the Next Form of "Marriage" to be Legalized? By Joe Wolverton, II, J.D.
• Verdict, by Justia: Is Three Still a Crowd? Polygamy and the Law After Obergefell v. Hodges. By Joanna L. Grossman and Lawrence M. Friedman
• Emory Law School: Can polygamy bans survive a legal challenge? By Emory University School of Law
• TheWeek: How gay marriage paves the way for legal polygamy. By Michael Brendan Dougherty
• ListLand: Top 10 Reasons The US Should Legalize Polygamy

My personal opinion is that legalization of polygamy is a matter of when, not if.  Once the traditional understanding of marriage is destroyed (SSM is doing that), once marriage as a concept is decoupled from procreation (SSM is doing that), once marriage becomes just another type of contract (SSM is doing that), then polygamy is essentially indistinguishable from same-sex marriage.  So if the latter is a constitutional right, then so is the former.  If the states are constitutionally prohibited from defining marriage as to gender, how on earth can they be constitutionally permitted to define marriage as to number?  The eventual answer to this question is . . . they are not so permitted.  We have destroyed the traditional purpose and function of marriage (from the government's point of view, anyway).  We did so by legalizing same-sex marriage.  So polygamy is, I think, well on its way.

3. Further to the above ideas, if and when polygamy is legalized, I think it will arise not from legislation, but from judicial fiat.  When the Supreme Court radically re-defined marriage to include same-sex marriage, it created the precedent for the legalization of polygamy.

4. I also commented on the difficulties that will arise for advocates of same-sex marriage who oppose polygamy.  See here (same link as above) :

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I can't help but think of the quandary which will be encountered by the SSM-is-wonderful-but-polygamy-is-horrible crowd when they are the on the receiving end of hostilities from their compatriots: self-congratulatory "virtue signalling" social justice types, the transgressivists, the self-selected gainsayers who presume to dictate to the rest of us on matters of ethics.  And since polygamy is trangressive, I think it will be just a matter of time before we see more visible calls for legalization of its various forms: polygyny (one husband having multiple wives at the same time), polyandry (one wife having multiple wives at the same time) and group marriage (infinite variations on numbers of husbands, wives, all-same-sex polygamy, etc.).

I suspect that the SSM-is-wonderful-but-polygamy-is-horrible crowd, having abandoned prophetic counsel as a voice of influence, will be left without a viable moral code, and hence will not enjoy being accused by their fellows of being haters, of being polygamyphobic (or whatever neologism will be created to define people who oppose polygamy).  So . . . they will capitulate.  Sooner or later.

I certainly understand and respect people who oppose polygamy on actual, principled grounds.  On moral grounds.  On religious grounds.  Right or wrong, such folks are at least trying to do what they feel is right.  But I think there are broad swaths of transgressive, social justice types who are essentially crowd-followers, who abandon principle and capitulate to prevailing and popular social trends.  Who take their cues on morality more from Hollywood, Facebook and Twitter, and less from the judeo-christian tradition (and, for Latter-day Saints, from modern prophets and apostles).  Sadly, I also think there are some members of the LDS Church who are in the thrall of this crowd.  And some of these are the SSM-is-wonderful-but-polygamy-is-horrible crowd.  Frankly, I do not see a coherent line of reasoning for this, as support for the former seems to logically require support for the latter.

In any event, to such folks I say: Good luck!  Good luck embracing same-sex marriage on the one hand, but rejecting polygamy on the other!  Your transgressive compatriots will turn on you, sooner or later.  And it will be . . . unpleasant.  In the days ahead, should you attempt to voice opposition to polygamy, you will be excoriated.  You will be branded as haters and bigots.  You will be silenced.  That will be your lot, I think.  The folks who publicly call (or "screech" or "violently demand") the loudest for "tolerance" and "diversity" seem the least likely to actually exhibit either when it comes to the shibboleths of transgressivism and "social justice."

5. I also predicted that the Church will continue to prohibit polygamy.  See here (same link):

Quote

Meanwhile, in the long run I think the LDS Church will be in the somewhat ironic position of being criticized for not accepting or allowing its members to engage in polygamy (again, much as we are presently excoriated for not accepting same-sex marriage).  But unlike the SJW types, the Latter-day Saints have an actual, quantifiable moral code.  It's not always popular.  And we do not always perfectly understand it or implement it.  But it's ours, and we are working hard to adhere to it.  It is well-described in Ether 12:4:

Quote

Wherefore, whoso believeth in God might with surety hope for a better world, yea, even a place at the right hand of God, which hope cometh of faith, maketh an anchor to the souls of men, which would make them sure and steadfast, always abounding in good works, being led to glorify God.

So I predict that we will see the LDS Church as an institution which restricts its members from entering into not only same-sex marriage, but also polygyny, polyandry, and group marriages.

I continue to hold this assessment, but I'm not particularly attached to it.  

6. I also posted some thoughts about the logistical headaches polygamy will case, legally-speaking.  See here:

Quote

Quote

Seriously, though. I haven't thought much of legalizing polygamy.  I'm just saying if as I consider it and it comes down to what it did for me regarding SSM, I might support it.  I'm all for consenting adults living as they deem necessary, as long as it doesn't hurt others. 

That sounds nice in the abstract.  But I think we should think the matter through.  For example, consider the complications that arise when "consenting adults" withdraw their consent.  When they get a divorce.  Think about things like child support, child custody, alimony, visitation schedules, division of assets, and so on.  Think about how difficult a job it is for the courts to manage such issues in the breakup of a binary marriage.  With multiple parties (say, three wives and one husband, or four husbands and one wife, or three husbands and two wives, and . . . you get the idea), it will be a nightmare.

What about property ownership during the marriage?  Will lenders be willing to loan money for, say, a home to a marital group of five people?  Six?  Will they be allowed to not loan money based on marital status (probably not)?  Will this present an increased risk to lenders?  Will lenders increase interest rates to offset those risks?

What about taxes?  How will tax deductions work where a married group may have four or five or six wage-earners, but who will be entitled to the same sort of tax deductions and breaks as binary couples?  Is that fair?  Will that materially affect the amount of taxes collected?  Will collected taxes go up or down?  If down, will the government raise taxes on everyone to offset the diminished revenues owing to group marriages?

I'm just spitballing here.  I think a more rigorous examination of the prospective problems associated with legalizing polygamy would be much more sobering.  Here's one preliminary effort (emphasis added) :

Quote

Legalizing polygamy would not be anywhere near so simple {compared to the legalization of same-sex marriage}. It would require an extensive reworking of our law in many areas in order to be workable. Will these be treated as one group marriage (rather like a business association, which would then be governed by a board of some sort), or a series of (nonexclusive) binary marriage contracts? With multiple legal spouses, what do we do about insurance benefits? Who gets to make medical decisions? Child custody issues? Does a polygamous spouse get the immigration benefits of marriage? Which spouse gets social security benefits, or do you allocate them pro rata among all spouses or something like that? How would intestacy work? The practical challenges to legalizing polygamy would be legion.

These legal challenges could be solved by motivated legislatures committed to solving them. After all, writing laws is what they do, and certainly creative solutions to these kinds of conundrums could be found. But in the absence of a substantial constituency backed by public opinion stumping for such legal marital structures, it just ain’t gonna happen.

And yet it's a constitutional right, isn't it?  So I'm not sure a "substantial constituency backed by public opinion" is going to be required.  After Obergefell, the pro-polygamy folks are pretty much pushing on an open door.

And here:

Quote

Quote

Well it sounds like you have some ideas right there to differentiate the cases of SSM and polygamy. 

No, not really.  From a constitutional rights perspective, these problems are irrelevant.  Imagine the Supreme Court in Brown v. Board of Education saying something like "Well, yes, race-based segregation of public schools in unconstitutional, but desegregation will be a hassle, so we'll allow this unconstitutional state of things to continue."

If SSM is a constitutional right, then so is polygamy.  That's the argument.  And it seems like a pretty good one.  That it is a right that will be incredibly difficult to implement is irrelevant.

Thanks,

-Smac

[smac97]

A question:  

The legalization of polygamy could create an interesting dilemma for the Church.  As I understand it, entering into a same-sex marriage is no longer a per se basis for excommunication (am I correct on that?).  

If polygamy is legalized (or even if it is only decriminalized), will entering into a polygamous marriage continue to be per se grounds for excommunication?

Thanks,

-Smac

Edited February 12, 2020 by smac97

[provoman]

As the Church ceased the practice of plural living spouse by sustaining vote in General Conference would reinstating plural living spouses necessitate sustaining vote by the membership of the Church?

[Analytics]

In my opinion, polygamy should be decriminalized. Live and let live.

However, I would argue that such relationships should work according to whatever arrangements the participants make, and shouldn't be defined as "marriage" under the law. Intrinsic parts of family law include there only being two people in a marriage, and that somebody can only enter into only one such relationship at a time.  For example, if somebody is ill and can't make their own medical decisions, his or her spouse gets to decide. If there are multiple spouses then what?

Everybody is allowed to choose their own life partner, but nobody can simultaneously choose more than one.

I would predict that is the way it will go.

[bluebell]

10 minutes ago, Analytics said:

In my opinion, polygamy should be decriminalized. Live and let live.

However, I would argue that such relationships should work according to whatever arrangements the participants make, and shouldn't be defined as "marriage" under the law. Intrinsic parts of family law include there only being two people in a marriage, and that somebody can only enter into only one such relationship at a time.  For example, if somebody is ill and can't make their own medical decisions, his or her spouse gets to decide. If there are multiple spouses then what?

Everybody is allowed to choose their own life partner, but nobody can simultaneously choose more than one.

I would predict that is the way it will go.

I agree.  I foresee decriminalization but not legalization because it would be too messy to try to regulate, especially when it comes to health insurance, divorce laws, etc.

[smac97]

1 minute ago, Analytics said:

In my opinion, polygamy should be decriminalized. Live and let live.

On its own, "live and let live" is too broad and intractable a basis for decriminalization.  However, if augmented by other arguments, I think decriminalization works.  Here are a few:

1. Non-Use of Criminal Statute: As I understand it, Utah has not enforced the felony statute in a consensual (as in non-fraudulent) polygamy context for a very long time.  If we aren't enforcing a criminal statute, why keep it on the books?

2. Anti-Religious Angle: I think the criminalization of polygamy has a decidely anti-religion angle.  That's where it came from.  Criminalizing consensual/nonfraudulent polygamy is criminalizing religious belief.

3. No "Public Policy" ("For the Children" / Unenforced Fornication Statutes): I don't think we can claim to have a continuing public policy of prohibiting polygamy based on its potential adverse impact on children, or based on regulating private sexual behavior.  Utah repealed its anti-fornication statute last year.  If we as a society are fine with unmarried couples having sex, having and raising children in unmarried households, etc., then I don't see how we can then turn around and claim that polygamous couples having sex and having/raising children is against public policy.

4. Constitutional Right: If the Supreme Court could fabricate a constitutional right to same-sex marriage, then I don't see how it can avoid also finding a constitutional right to polygamy.  We presently have a patchwork of state laws pertaining to polygamy.  I think most of these will still be on the books when a test case reaches the Supreme Court.  If so, we may see a situation where decriminalization and legalization happens at the same time (rather than sequentially). 

1 minute ago, Analytics said:

However, I would argue that such relationships should work according to whatever arrangements the participants make, and shouldn't be defined as "marriage" under the law.

So decriminalization, but not legalization?  Could you elaborate on that?  Do you think there is a constitutional right to same-sex marriage?  If so, what is your position on a similar "right" to polygamy?

1 minute ago, Analytics said:

Intrinsic parts of family law include there only being two people in a marriage,

Yeah, well, we're well past that.  Male/female duality in a marriage was also "intrinsic" in the American legal treatment of marriage.  Until five justices on the Supreme Court decided it wasn't intrinsic after all.

If the Supreme Court can tinger with the definition of marriage as to gender, why can't it also tinger with the definition as to number?

1 minute ago, Analytics said:

and that somebody can only enter into only one such relationship at a time.  

Well, I agree with you.  But I'm not sure the legal basis is there.  I suppose the Supreme Court could create such a constraint.

1 minute ago, Analytics said:

For example, if somebody is ill and can't make their own medical decisions, his or her spouse gets to decide. If there are multiple spouses then what?

There are countless logistical nightmares that will arise from the legalization of polygamy.

1 minute ago, Analytics said:

Everybody is allowed to choose their own life partner, but nobody can simultaneously choose more than one.

Why?  If marriage can be redefined as to gender, why can't it also be re-defined in other ways (such as a person being in multiple distinct marital relationships)?  

1 minute ago, Analytics said:

I would predict that is the way it will go.

The constitutional angle will be interesting to watch.

Thanks,

-Smac

[smac97]

6 minutes ago, bluebell said:

I agree.  I foresee decriminalization but not legalization because it would be too messy to try to regulate, especially when it comes to health insurance, divorce laws, etc.

Unless, of course, polygamy is a constitutional right.  In which case, legalization is necessary, and cannot be avoided just because it's logistically problematic.

Thanks,

-Smac

[bluebell]

5 minutes ago, smac97 said:

Unless, of course, polygamy is a constitutional right.  In which case, legalization is necessary, and cannot be avoided just because it's logistically problematic.

Thanks,

-Smac

I guess we'll see what happens with it.