Polygamy in North America

Polygamy is the practice of taking more than one spouse. Polygyny is the specific practice of one man taking more than one wife: it is a common marriage pattern in some parts of the world. In North America polygamy has not been a culturally normative or legally recognized institution since the continent's colonization by Europeans.

Polygamy became a significant social and political issue in the United States in 1852, when The Church of Jesus Christ of Latter-day Saints (LDS Church) made it known that a form of the practice, called plural marriage, was part of its doctrine. Opposition to the practice by the United States government resulted in an intense legal conflict, and culminated in LDS Church president Wilford Woodruff announcing the church's official abandonment of the practice on September 25, 1890.[1] However, breakaway Mormon fundamentalist groups living mostly in the western United States, Canada, and Mexico still practice plural marriage.

Some other Americans practice polygamy including some American Muslims.[2]

Polygamy defined

Polygamy is defined as the practice or condition of having more than one spouse at the same time, conventionally referring to a situation where all spouses know about each other, in contrast to bigamy, where two or more spouses are usually unaware of each other.[3]

Legality of polygamy in North America

United States

Polygamy is the act or condition of a person marrying another person while still being lawfully married to another spouse. It is illegal in the United States. The crime is punishable by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense.[4]

Many US courts (e.g. Turner v. S., 212 Miss. 590, 55 So.2d 228) treat bigamy as a strict liability crime: in some jurisdictions a person can be convicted of a felony even if he reasonably believed he had only one legal spouse. For example, if a person has the mistaken belief that their previous spouse is dead or that their divorce is final, they can still be convicted of bigamy if they marry a new person.[5]

Canada

In Canada the federal Criminal Code applies throughout the country. It extends the normal definition of polygamy to having any kind of conjugal union with more than one person at the same time. Also anyone who assists, celebrates, or is a part to a rite, ceremony, or contract that sanctions a polygamist relationship is guilty of polygamy. Polygamy is an offence punishable by up to five years in prison.

History of polygamy

Polygamy in the United States has a long history. Many Native American tribes practiced polygamy (generally polygyny)[6] and European mountain men often took native wives and adopted the practice.[7] Some tribes seem to have continued the practice into the 20th century.[7]

Scots-Irish settlers, and some Welsh emigrants, carried long-standing multiple partner traditions to the Americas from Europe.[7] Utopian and communal groups established during the mid-19th century had varying marriage systems, including group marriage and polygyny.[8] There is also some evidence in the American South for multiple marriage partners, particularly after the Civil War.[7]

Polygamy has also been practiced, discreetly, by some Muslims living in America.[9] However, these polygamous marriages are not recognized by American law.

Because polygamy has been illegal throughout the United States since the mid-19th century, and in many individual states before that, sources on alternative marriage practices are limited. Consequently, it is difficult to get a clear picture of the extent of the practice in the past and at the present time.

Early Latter Day Saint practice

Mormon practice of plural marriage was officially introduced by Joseph Smith, the founder of the Latter Day Saint movement, on July 12, 1843. As polygamy was illegal in the state of Illinois,[10] it was practiced privately. Although (during the 1839–44 Nauvoo era) several Mormon leaders, including Smith, Brigham Young and Heber C. Kimball, took plural wives, Mormon elders who publicly taught that all men were commanded to enter plural marriage were subject to discipline; for example, the February 1, 1844 excommunication of Hyram Brown.[11] In May 1844 Smith declared, "What a thing it is for a man to be accused of committing adultery, and having seven wives, when I can only find one."[12]

After the death of Joseph Smith, the practice of polygamy was carried to the Intermountain West by The Church of Jesus Christ of Latter-day Saints, then led by Brigham Young. In what is today Utah and some surrounding areas, the principle of plural marriage was openly practiced. In 1852, Young felt the church in Utah was secure enough to announce the practice of polygamy to the world. However opposition from the U.S. government threatened the legal standing of the church. President Wilford Woodruff announced the church's official abandonment of the practice on September 25, 1890. Woodruff's declaration was formally accepted in a church general conference on October 6, 1890. The Church's position on the practice of polygamy was reinforced by a second formal statement in 1904 called the Second Manifesto, which renouncing the practice in all areas of the world.[13] Although the largest part of the Mormon population accepted the prohibition on plural marriage, people now identified as Mormon fundamentalists left the mainline LDS Church to continue practicing plural marriage.

Latter Day Saint fundamentalism

Main article: Mormon fundamentalism

Some sects that practice or at least sanction polygamy are the Fundamentalist Church of Jesus Christ of Latter Day Saints, the Latter-day Church of Christ and the Apostolic United Brethren. Polygamy among these groups persists today in Utah, Arizona, Colorado, Canada, and other neighboring states, and the spin-off colonies, as well as up to 15,000 isolated individuals with no organized church affiliation.[14] Polygamist churches of Latter Day Saint origin are often referred to as "Mormon fundamentalist"; however, the larger LDS church rejects polygamy today. They often use an ambiguous September 27, 1886 revelation to John Taylor as the basis for their authority to continue the practice of plural marriage.[15]

The Salt Lake Tribune estimates there are as many as 37,000 fundamentalists, with less than half of them living in polygamous households.[16] Most of the polygamy is believed to be restricted to about a dozen extended groups of polygamous fundamentalists.[17][18][19][20] The LDS Church asserts that it is improper to call any of these splinter polygamous groups "Mormon."[21][22]

Current polygamist groups

Members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) practice polygamy in arranged marriages that often, but not always, involve placing young girls with older men. FLDS members live in the twin communities of Hildale, Utah, and Colorado City, Arizona, about 350 miles southwest of Salt Lake City, with other communities in Canada, Texas and other areas of the North American west. The head of this church is currently Warren Jeffs.[23]

Overall in Utah today, those living in polygamist families number about 40,000 people, or about 1.4 percent of the population.[24] Polygamists are difficult to prosecute because many only seek marriage licenses for their first marriage, while the other marriages are secretly conducted in private ceremonies. Thereafter, secondary wives attempt to be seen in public as single women with children.[24]

Multiple divorce and marriage for polygamy

Some polygamous families use a system of multiple divorce and legal marriage as a loophole in order to avoid committing a criminal act. In such cases the husband marries the first wife, she takes his last name, he divorces her and then marries the next wife, who takes his name. This is repeated until he has married and divorced all his wives, except possibly the last one. This way the wives feel justified in calling themselves Mrs [husband's last name] and, while legally they are divorced from the husband, they still act as if married to him and expect those around them to acknowledge and respect this.

Since only one wife is officially married to the husband at any one time, no law is being broken and so this type of polygamous family unit can be overt about their relationship.

The conviction of Thomas Arthur Green in 2001 may have made the legal status of such relationships more precarious in Utah, although Green's bigamy convictions were made possible only by his own public statements.

Polygamy today

Those who live in their own communities tend to find their additional spouses from within their own communities or networks of like communities. This can involve daughters of polygamous families entering into arranged marriages with older men who already have a number of wives. This is commonly called daughter swapping. Marriage age can be young and sometimes below the legal minimum. It is also not uncommon for fairly close relatives to marry, leading to inbreeding, though part of this comes from the difficulty of keeping track of the complex net of familial relations.

These fundamentalist sects tend to aggregate in communities where they all commonly share their own specific religion and thus basis for polygamy. These small groups ranging from a few hundred to about 10,000 are reported to be located in various communities of the Western United States, Canada, and Mexico[25] including:

Recent polygamy cases

The practice of informal polygamy among fundamentalist groups presents interesting legal issues. It has been considered difficult to prosecute polygamists for bigamy, in large part because they are rarely formally married under state laws. Without evidence that suspected offenders have multiple formal or common-law marriages, these groups are merely subject to the laws against adultery or unlawful cohabitation — laws which are not commonly enforced because they also criminalize other behavior that is otherwise socially sanctioned. However, some "Fundamentalist" polygamists marry women prior to the age of consent, or commit fraud to obtain welfare and other public assistance.

In 1953, the state of Arizona investigated and raided a group of 385 people in the polygamist-practicing colony of Hildale and Colorado City, straddling the Utah-Arizona border. All the men were arrested and the children were placed with foster families. A judge eventually ruled this action illegal, and everyone returned to the community, which now contains about 10,000 people.[27]

In 2001, in the state of Utah in the United States, Juab County Attorney David O. Leavitt successfully prosecuted Thomas Green, who was convicted of criminal non-support and four counts of bigamy for having five serially monogamous marriages, while living with previous legally divorced wives. His cohabitation was considered evidence of a common-law marriage to the wives he had divorced while still living with them. That premise was subsequently affirmed by the Utah Supreme Court in State v. Green, as applicable only in the State of Utah. Green was also convicted of child rape and criminal non-support.[28]

In 2005, the state attorneys-general of Utah and Arizona issued a primer on helping victims of domestic violence and child abuse in polygamous communities.[29] It was subsequently updated four times, the latest in 2011.[25][30][26][31] Enforcement of crimes such as child abuse, domestic violence, and fraud were emphasized over the enforcement of anti-polygamy and bigamy laws. The priorities of local prosecutors are not covered by this statement.

In 2008, starting on April 4, Texas State officials took 436 women and children into temporary legal custody after Rozita Swinton, a 33-year-old woman living in Colorado Springs, Colorado, called both Texas Social Services and a local shelter claiming to be a 16-year-old girl. She made a series of phone calls to authorities in late March, claiming she had been beaten and forced to become a "spiritual" wife to an adult man. Acting on her calls, authorities raided the ranch in Eldorado, about 40 miles south of San Angelo. The YFZ Ranch is owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a Mormon offshoot that practices polygamy. Two men were arrested for obstructing the raid but were later released. All of the families/children taken were released and many lawsuits are still pending against the state.[32][33][34]

The stars of the TLC show Sister Wives challenged the state of Utah's bigamy laws,[35] though also acknowledging that the state's constitutional ban of plural marriage licenses would remain regardless of the lawsuit's outcome.[35] On December 13, 2013, US Federal Judge Clark Waddoups ruled in Brown v. Buhman[36] that the portions of Utah's anti-polygamy laws which prohibit multiple cohabitation were unconstitutional, but also allowed Utah to maintain its ban on multiple marriage licenses.[37][38][39] Unlawful cohabitation, where prosecutors did not need to prove that a marriage ceremony had taken place (only that a couple had lived together), had been a major tool used to prosecute polygamy in Utah since the 1882 Edmunds Act.[40]

Canada

In Canada, polygamy is a criminal offence under section 293 of the Criminal Code, which provides for a penalty of up to five years imprisonment,[41] but prosecutions are rare. As of January 2009, no person has been prosecuted for polygamy in Canada in over sixty years.[42] However, Edith Barlow, a mother of five in the polygamous community of Bountiful, B.C., was denied permanent residence and was asked to leave the country after ten years in Canada.[43]

A 2005 report by the Alberta Civil Liberties Research Centre recommended that Canada decriminalize polygamy, stating: "Criminalization is not the most effective way of dealing with gender inequality in polygamous and plural union relationships. Furthermore, it may violate the constitutional rights of the parties involved."[44] In 2007, the Attorney General of British Columbia expressed concerns over whether this prohibition is constitutional, and an independent prosecutor in British Columbia recommended that Canadian courts be asked to rule on the constitutionality of laws against polygamy.[45] The Supreme Court of British Columbia upheld Canada's anti-polygamy section 293 of the Criminal Code and other ancillary legislation in a 2011 reference case.[46][47]

See also

References

  1. ↑ Woodruff's declaration was formally accepted in a church general conference on October 6, 1890.
  2. ↑ Philly's Black Muslims Increasingly turn to polygamy
  3. ↑ George Monger (2004). Marriage customs of the world: from henna to honeymoons. Santa Barbara, Calif: A BC-CLIO. p. 31. ISBN 1-57607-987-2. Retrieved September 1, 2010. Bigamy has come to mean the state of being married to two partners at the same time, generally with both partners unaware of the existence of the other.
  4. ↑ West's Encyclopedia of American Law. Eds. Jeffrey Lehman and Shirelle Phelps. Vol. 8. 2nd ed. Detroit: Gale, 2005. 26–28. 13 vols. Gale Virtual Reference Library. Thomson Gale. Brigham Young University – Utah. 11 Dec. 2007
  5. ↑ Loewy, Arnold H. (1975). "Criminal Law in a nutshell 2nd Ed". West Publishing Co.: 131.
  6. ↑ Turley, Jonathan (10 March 2004). "Polygamy laws expose our own hypocrisy". USA Today. (In paragraph 10). Retrieved 2013-08-21.
  7. 1 2 3 4 Tracy, Kathleen (2002) [2001], The Secret Story of Polygamy, Naperville, Illinois: Sourcebooks, ISBN 1-57071-723-0, OCLC 46858494
  8. ↑ Loue, pp. 27–30
  9. ↑ Philly's Black Muslims Increasingly Turn to Polygamy
  10. ↑ Greiner & Sherman, Revised Laws of Illinois, 1833, pg. 198–199
  11. ↑ Times and Seasons, vol. 5, pg. 423, February 1, 1844
  12. ↑ History of The Church of Jesus Christ of Latter-day Saints, Volume VI, edited by B. H. Roberts, 1902.
  13. ↑ Scriptures of The Church of Jesus Christ of Latter-day Saints, for the Sunday Schools, Salt Lake City: Deseret Sunday School Union, 1968, p. 159
  14. ↑ Brooke Adams, Fundamentalists: Most espouse polygamy as a tenet, but fewer actually practice it as their lifestyle, Salt Lake Tribune, 11 August 2005, as quoted at principlevoices.org, Accessed 8 June 2007
  15. ↑ "An 1886 Revelation to John Taylor"
  16. ↑ "LDS splinter groups growing" by Brooke Adams, August 9, 2005 – SLT Article ID: 10BF07C805DE5990
  17. ↑ Dougherty, John (2005-12-29). "Forbidden Fruit". Phoenix New Times.
  18. ↑ Hollenhorst, John (2006-02-08). "Birth defect is plaguing children in FLDS towns". Deseret Morning News.
  19. ↑ "Doctor: Birth defects increase in inbred polygamy community". Daily Herald. 2006-02-09.
  20. ↑ Szep, Jason (2007-06-14). "Polygamist community faces rare genetic disorder". Reuters.
  21. ↑ "Mormon Fundamentalists", 6 March 2006 press release by the LDS Church
  22. ↑ "Polygamist Sects Are Not 'Mormons,' Church Says", 25 October 2006 press release by the LDS Church
  23. ↑ The Associated Press. "National Briefs." Telegraph – Herald [Dubuque, Iowa] 21 Nov. 2007,C3. ProQuest Newsstand. ProQuest. Brigham Young University, Provo, Utah. 11 December 2007
  24. 1 2 James Brooke. "Utah Struggles With a Revival of Polygamy. " New York Times [New York, N.Y.] 23 August 1998, Late Edition (East Coast): 12. ProQuest Newsstand. ProQuest. Brigham Young University, Provo, Utah. 11 Dec. 2007
  25. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Utah Attorney General's Office and Arizona Attorney General's Office (January 2011), The Primer: A Guidebook for Law Enforcement and Human Services Agencies Who Offer Assistance to Fundamentalist Mormon Families (PDF), archived (PDF) from the original on 2013-10-16, retrieved 2014-01-14
  26. 1 2 3 4 Utah Attorney General's Office and Arizona Attorney General's Office (June 2006), The Primer: Helping Victims of Domestic Violence and Child Abuse in Polygamous Communities (PDF), archived from the original (PDF) on 2007-07-19
  27. ↑ Nicholas Riccardi. "The Nation; Jeffs may be put away for life, but polygamy's at large in Utah :[HOME EDITION]. " Los Angeles Times [Los Angeles, Calif.] 27 September 2007, A.13. Los Angeles Times. ProQuest. Brigham Young University, Provo, Utah. 11 Dec. 2007
  28. ↑ State v. Green
  29. ↑ Utah Attorney General's Office and Arizona Attorney General's Office (January 2005), The Primer: Helping Victims of Domestic Violence and Child Abuse in Polygamous Communities (PDF), archived from the original (PDF) on 2005-01-11
  30. ↑ Utah Attorney General's Office and Arizona Attorney General's Office (August 2009), The Primer: A Guidebook for Law Enforcement and Human Services Agencies Who Offer Assistance to Fundamentalist Mormon Families (PDF), archived from the original (PDF) on 2009-08-20
  31. ↑ Utah Attorney General's Office and Arizona Attorney General's Office (July 2005), The Primer: Helping Victims of Domestic Violence and Child Abuse in Polygamous Communities (PDF), archived from the original (PDF) on 2005-09-07
  32. ↑ "Affidavit: FLDS raid spurred by girl's reports of physical, sexual abuse". Deseret Morning News. 8 April 2008. Retrieved 2008-04-09.
  33. ↑ "Number of children in Texas custody rises — some young mothers are actually under 18". Deseret Morning News. 24 April 2008. Retrieved 2008-04-25.
  34. ↑ "Rozita Swinton's Bad Call". Newsweek. 26 July 2008. Retrieved 2011-03-22.
  35. 1 2 "More notes from the Sister Wives court hearing". The Salt Lake Tribune. 18 January 2013.
  36. ↑ Waddoups, Clark (December 13, 2013), Memorandum Decision And Order Granting In Part Plaintiffs' Motion For Summary Judgement, Case No. 2:11-cv-0652-CW
  37. ↑ Schwartz, John (September 14, 2013), "A Law Prohibiting Polygamy is Weakened", New York Times
  38. ↑ Mears, Bill (December 14, 2013). "'Sister Wives' case: Judge strikes down part of Utah polygamy law". CNN.com. CNN. Retrieved 2013-12-19.
  39. ↑ Peggy Fletcher Stack (December 14, 2013), "Laws on Mormon polygamists lead to win for plural marriage", The Salt Lake Tribune, retrieved 2013-12-19
  40. ↑ Embry, Jessie L. (1994), "Polygamy", in Powell, Allan Kent, Utah History Encyclopedia, Salt Lake City, Utah: University of Utah Press, ISBN 0874804256, OCLC 30473917
  41. ↑ "Section 293", Criminal Code, RSC 1985, c C-46, Statutes and Regulations of Canada (Federal), Canadian Legal Information Institute, retrieved 2011-12-05
  42. ↑ Lak, Daniel (January 21, 2009). "Canada's polygamy legislation". CBC News. Retrieved 2011-12-05.
  43. ↑ Adams, Brooke (November 26, 2005), "Polygamous mother battles Canada deportation, possible loss of her kids", The Salt Lake Tribune, retrieved 2013-09-10
  44. ↑ Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports. Archived March 31, 2008, at the Wayback Machine.
  45. ↑ Dowd, Allan (August 1, 2007). "Canada urged to review legality of polygamy ban". Reuters. Retrieved 2011-12-05.
  46. ↑ "Canada's polygamy laws upheld by B.C. Supreme Court". CBC News. November 23, 2011. Retrieved 2011-12-05.
  47. ↑ "Reference re: Section 293 of the Criminal Code of Canada", 2011 BCSC 1588, CanLII

Further reading

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