Polygamy in North America

Polygamy is the practice of having more than one spouse. Specifically, polygyny is the practice of one man taking more than one wife while polyandry is the practice of one woman taking more than one husband. Polygamy 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.

Polygamy defined

Polygamy is defined as the practice or condition of one male, having more than one female 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.[2] Polyandry is the name of the practice or condition when one female, having more than one male spouse at the same time.

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.[3] Polygamy was outlawed in federal territories by the Edmunds Act, and there are laws against the practice in all 50 states, as well as the District of Columbia, Guam,[4] and Puerto Rico.[5] Because state laws exist, polygamy is not actively prosecuted at the federal level,[6] but the practice is considered "against public policy" and, accordingly, the U.S. government does not recognize bigamous marriages for immigration purposes (that is, would not allow one of the spouses to petition for immigration benefits for the other), even if they are legal in the country where the bigamous marriage was celebrated.[7] Any immigrant who is coming to the United States to practice polygamy is inadmissible.[8]

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.[9]

Utah reduced polygamy from a third-degree felony to a minor infraction on May 13, 2020.[10]

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

Scots-Irish settlers, and some Welsh emigrants, carried long-standing multiple partner traditions from Europe to the Americas.[11] Utopian and communal groups which were established during the mid-19th century had varying marriage systems, including group marriage and polygyny.[12] There is also some evidence for the existence of multiple marriage partners in the American South, particularly after the Civil War.[11]

Polygamy has also been practiced, discreetly, by some Muslims who are living in America.[13] 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 because it was illegal in many individual states before that period of time, sources on alternative marriage practices are limited. Consequently, it is difficult to get a clear picture of the extent of the practice both in the past and the present.

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Early Latter Day Saint practice
Mormonism and polygamy
Portrait of Ira Eldredge with his three wives: Nancy Black Eldredge, Hannah Mariah Savage Eldredge, and Helvig Marie Andersen Eldredge.
Background
Origin of Latter Day Saint polygamy • Late-19th century Mormon polygamy • 1890 Manifesto • Second Manifesto (1904) • Council of Friends
Current state of polygamy
Modern Latter Day Saint polygamy •
Mormon fundamentalism •
Leaders
Prominent practitioners
Joseph Smith • Wives of Joseph Smith • Brigham Young • Wives of Brigham Young • List of Mormon polygamists •
FLDS Church • AUB
Related legislation
Morrill Anti-Bigamy Act • Poland Act • Edmunds Act • Edmunds–Tucker Act • Reed Smoot hearings
Related case law
Reynolds v. US • Cannon v. US • Clawson v. US • Davis v. Beason • Late Corp. of the LDS Church v. US • Cleveland v. US • Brown v. Buhman • List of polygamy court cases
Related articles
Celestial marriage • Spiritual wifery • Polygamy in North America • Timeline of civil marriage in the US • Freedom of religion in the US • Mormon colonies in Mexico • Latter-day Saint settlements in Canada •
Short Creek raid • Lost boys • YFZ Ranch •
Polygamy czar • Legal status of polygamy

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The Mormon practice of plural marriage was officially introduced by Joseph Smith, the founder of the Latter Day Saint movement, on July 12, 1843. Because polygamy was illegal in the state of Illinois,[14] it was practiced in secret during Smith's lifetime. During the 1839–1844 Nauvoo era, while several Mormon leaders (including Smith, Brigham Young and Heber C. Kimball) took plural wives, any Mormon leaders who publicly taught the polygamous doctrine were disciplined. For example, Hyram Brown was excommunicated on February 1, 1844.[15] 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."[16]

After the death of Joseph Smith, the practice of polygamy continued to exist in the Church of Jesus Christ of Latter-day Saints (LDS Church), which was then led by Brigham Young. In the territory that became Utah, and some surrounding areas, plural marriage was openly practiced by LDS Church adherents. In 1852, Young felt the LDS Church in Utah was secure enough to publicly announce their practice of polygamy. However opposition from the U.S. government threatened the legal standing of the LDS Church. President Wilford Woodruff announced the LDS Church's official abandonment of the practice on September 25, 1890. Woodruff's declaration was formally accepted in an LDS Church general conference on October 6, 1890. The LDS Church's position on the practice of polygamy was reinforced by another formal statement in 1904 called the Second Manifesto, which again renounced polygamy.[17]

Although the Second Manifesto ended the official practice of new plural marriages, existing plural marriages were not automatically dissolved. Many Mormons, including prominent LDS Church leaders, maintained existing plural marriages well into the 20th century. A small percentage of adherents rejected the change, identifying as Mormon fundamentalists and leaving the mainstream LDS Church to continue practicing plural marriage.

Mormon fundamentalism
Main article: Mormon fundamentalism
Further information: Current state of polygamy in the Latter Day Saint movement and List of denominations in the Latter Day Saint movement

Some sects that practice or at least sanction polygamy are the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), the Latter-day Church of Christ and the Apostolic United Brethren. Polygamy among these groups persists today in Utah, Arizona, Colorado, Canada, and some neighboring states, as well as up to 15,000 isolated individuals with no organized church affiliation.[18] Polygamist churches of Latter Day Saint origin are often referred to as "Mormon fundamentalist"; however, the main LDS Church has rejected polygamy since the early 20th century. Mormon fundamentalists often use an ambiguous September 27, 1886 revelation to John Taylor as the basis for continuing the practice of plural marriage.[19]

The Salt Lake Tribune estimates there may be as many as 37,000 Mormon fundamentalists, with less than half living in polygamous households.[20] Most polygamous groups are composed of about a dozen extended Mormon fundamentalist organizations.[21][22][23][24] The LDS Church asserts it is improper to call any of these splinter polygamous groups "Mormon."[25][26]

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, place young girls with older men. Most FLDS members live in 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 FLDS leader is currently Warren Jeffs.[27]

In 1998, about 40,000 people living in Utah were part of a polygamist family, or about 1.4 percent of the population.[28] Polygamists have been 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.[28]

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 last name. This practice is repeated until he has married and divorced all of his wives, with the possible exception of his last one. This way the wives feel justified in calling themselves Mrs [husband's last name] and, while they are legally divorced from the husband, they act as if they are still married to him and expect those around them to acknowledge and respect this arrangement.

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 its 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 only made possible by his own public statements.

Polygamy today

Mormon fundamentalist sects tend to aggregate in individual communities of their own specific sect and basis for polygamy. These small groups range from a few hundred up to 10,000, and are located across Western North America,[29] including:

Recent polygamy cases

The practice of informal polygamy among fundamentalist groups presents several 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 girls 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.[31]

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.[32]

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.[33] It was subsequently updated four times, the latest in 2011.[29][34][30][35] 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. Several men were found guilty and convicted of sexual assault, rape, and bigamy involving underage girls.[36][37][38]

The stars of the TLC show Sister Wives challenged the state of Utah's bigamy laws,[39] though also acknowledging that the state's constitutional ban of plural marriage licenses would remain regardless of the lawsuit's outcome.[39] On December 13, 2013, US Federal Judge Clark Waddoups ruled in Brown v. Buhman[40] 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.[41][42][43] 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.[44] The United States Court of Appeals for the Tenth Circuit reversed the decision on April 11, 2016 [45] On January 23, 2017, the Supreme Court of the United States declined to hear arguments from the husband and four wives who star in the television show Sister Wives, letting stand a lower court ruling that kept polygamy a crime in Utah.[46]

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,[47] but prosecutions are rare. As of January 2009, no person had been prosecuted for polygamy in Canada in over sixty years.[48] This changed in 2014, when polygamy charges were brought against Winston Blackmore and James Oler.[49]

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.[50]

Alberta

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."[51]

British Columbia

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.[52] 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.[53][54] On March 9, 2018, the Supreme Court of British Columbia upheld the constitutionality of Canada's anti-polygamy laws again.[55]

Views on polygamy in the United States[56]

Public opinion

In the United States, 20% of people believe that polygamy is morally acceptable, according to a 2020 Gallup poll.[56]

See also

References
  1. Woodruff's declaration was formally accepted in a church general conference on October 6, 1890.
  2. 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.
  3. 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
  4. 9 GCA §31.10
  5. 33 L.P.R.A. § 4754
  6. "U.S. laws and Senate hearings on polygamy".
  7. Matter of Mujahid, 15 I. & N. Dec. 546 (BIA 1976)
  8. 8 USC §1182 (a)(10)(A)
  9. Loewy, Arnold H. (1975). "Criminal Law in a nutshell 2nd Ed". West Publishing Co.: 131. Cite journal requires |journal= (help)
  10. "Polygamy essentially decriminalized in Utah". Newser. 13 May 2020. Retrieved May 13, 2020.
  11. Tracy, Kathleen (2002) [2001], The Secret Story of Polygamy, Naperville, Illinois: Sourcebooks, ISBN 1-57071-723-0, OCLC 46858494
  12. Loue, pp. 27–30
  13. Philly's Black Muslims Increasingly turn to polygamy
  14. Greiner & Sherman, Revised Laws of Illinois, 1833, pp. 198–199
  15. Times and Seasons, vol. 5, pg. 423, February 1, 1844
  16. History of The Church of Jesus Christ of Latter-day Saints, Volume VI, edited by B. H. Roberts, 1902.
  17. 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
  18. Brooke Adams, Fundamentalists: Most espouse polygamy as a tenet, but fewer actually practice it as their lifestyle Archived 2014-10-22 at the Wayback Machine, Salt Lake Tribune, 11 August 2005, as quoted at principlevoices.org, Accessed 8 June 2007
  19. "An 1886 Revelation to John Taylor" Archived 2011-09-21 at the Wayback Machine
  20. "LDS splinter groups growing" Archived 2014-10-22 at the Wayback Machine by Brooke Adams, August 9, 2005 – SLT Article ID: 10BF07C805DE5990
  21. Dougherty, John (2005-12-29). "Forbidden Fruit". Phoenix New Times.
  22. Hollenhorst, John (2006-02-08). "Birth defect is plaguing children in FLDS towns". Deseret Morning News.
  23. "Doctor: Birth defects increase in inbred polygamy community". Daily Herald. 2006-02-09. Archived from the original on 2008-06-03.
  24. Szep, Jason (2007-06-14). "Polygamist community faces rare genetic disorder". Reuters.
  25. "Mormon Fundamentalists", 6 March 2006 press release by the LDS Church
  26. "Polygamist Sects Are Not 'Mormons,' Church Says", 25 October 2006 press release by the LDS Church
  27. The Associated Press. "National Briefs." Telegraph – Herald [Dubuque, Iowa] 21 Nov. 2007, C3. ProQuest Newsstand. ProQuest. Brigham Young University, Provo, Utah. 11 December 2007
  28. 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
  29. 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 from the original (PDF) on 2013-10-16, retrieved 2014-01-14
  30. 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
  31. Nicholas Riccardi. "The Nation; Jeffs may be put away for life, but polygamy's at large in Utah". Los Angeles Times September 27, 2007, A.13.
  32. State v. Green
  33. 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
  34. 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
  35. 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
  36. "Affidavit: FLDS raid spurred by girl's reports of physical, sexual abuse". Deseret Morning News. 8 April 2008. Archived from the original on 13 April 2008. Retrieved 2008-04-09.
  37. "Number of children in Texas custody rises — some young mothers are actually under 18". Deseret Morning News. 24 April 2008. Retrieved 2008-04-25.
  38. "Rozita Swinton's Bad Call". Newsweek. 26 July 2008. Retrieved 2011-03-22.
  39. "More notes from the Sister Wives court hearing". The Salt Lake Tribune. 18 January 2013.
  40. Waddoups, Clark (December 13, 2013), Memorandum Decision And Order Granting In Part Plaintiffs' Motion For Summary Judgement, Case No. 2:11-cv-0652-CW, archived from the original on May 30, 2014, retrieved January 8, 2015
  41. Schwartz, John (September 14, 2013), "A Law Prohibiting Polygamy is Weakened", New York Times
  42. Mears, Bill (December 14, 2013). "'Sister Wives' case: Judge strikes down part of Utah polygamy law". CNN.com. CNN. Retrieved 2013-12-19.
  43. Peggy Fletcher Stack (December 14, 2013), "Laws on Mormon polygamists lead to win for plural marriage", The Salt Lake Tribune, retrieved 2013-12-19
  44. Embry, Jessie L. (1994), "Polygamy", in Powell, Allan Kent (ed.), Utah History Encyclopedia, Salt Lake City, Utah: University of Utah Press, ISBN 0874804256, OCLC 30473917
  45. "Tenth Circuit reverses Sister Wives decision". 11 April 2016.
  46. "Polygamy remains a crime as U.S. Supreme Court won't hear case from 'Sister Wives'". 13 January 2017.
  47. "Section 293", Criminal Code, RSC 1985, c C-46, Statutes and Regulations of Canada (Federal), Canadian Legal Information Institute
  48. Lak, Daniel (January 21, 2009). "Canada's polygamy legislation". CBC News. Retrieved 2011-12-05.
  49. "Bountiful sect members face polygamy, child-related charges". CBC News. 2014-08-13. Retrieved 2018-07-19.
  50. Adams, Brooke (November 26, 2005), "Polygamous mother battles Canada deportation, possible loss of her kids", The Salt Lake Tribune, retrieved 2013-09-10
  51. 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
  52. Dowd, Allan (August 1, 2007). "Canada urged to review legality of polygamy ban". Reuters. Retrieved 2011-12-05.
  53. "Canada's polygamy laws upheld by B.C. Supreme Court". CBC News. November 23, 2011. Retrieved 2011-12-05.
  54. "Reference re: Section 293 of the Criminal Code of Canada", 2011 BCSC 1588, CanLII
  55. "Judge tosses convicted B.C. polygamists' constitutional challenge". CBC News. 2018-03-09. Retrieved 2018-07-19. Winston Blackmore and James Oler were found guilty of having multiple wives in B.C. Supreme Court last July. They returned to court to argue their convictions were null because the law itself was unconstitutional under the Charter of Rights and Freedoms. On Friday, B.C. Supreme Court Justice Sheri Ann Donegan rejected the argument, stating that Blackmore and Oler considered their lifestyles above the law when they continued to marry women in Bountiful, B.C.
  56. "Marriage". Gallup.com. Gallup. Retrieved 14 August 2018.

Further reading
  • Kilbride, Philip. "Plural Marriage for Our Times: A Reinvented Option?" Bergin & Garvey; 1994.
  • Lauman, Edward O., John H. Gagnon, Robert T. Michael, and Stuart Michaels. The Social Organization of Sexuality: Sexual Practices in the United States: Chapter 13: Sex, Cohabitation, and Marriage. Chicago: University of Chicago Press, 1994.
  • Loue, Sana. Sexual Partnering, Sexual Practices, and Health, Chapter Two: Multi-Bonding: Polygamy, Polygyny, Polyamory." Springer Publications, 2005. ISBN 0-387-25923-6
  • Murdock, George Peter. Social Structure. New York: MacMillan Company, 1949. ISBN 0-02-922290-7.
  • Pearsall, Sarah M.S., Polygamy: An Early American History. New Haven, CT: Yale University Press, 2019
  • Blackmore, Mary Jayne, Balancing Bountiful: What I Learned About Feminism from My Polygamist Grandmothers. Halfmoon Bay, BC: Caitlin Press, 2020. ISBN 9781773860046.
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