Utah Polygamy Case
Jason Kuznicki on May 31st 2006
Josh Claybourn notes that the Utah supreme court has upheld a bigamy conviction for a Fundamentalist Latter Day Saints polygamist — but the court also split over the relevance of Lawrence vs. Texas to the case.
Josh focuses on the dissent, which I think is fitting, since the Utah law — get this — decleares it a crime not only to obtain plural state-sanctioned marriages, but also to claim plural private, non-sanctioned marriages.
That’s right, it’s a crime in Utah even to say that you’re in a plural marriage. And it’s a crime for religions to perform plural marriages, even without state sanction.
This is nonsense of the highest order — as if state-sanctioned marriages were the only marriages to be had. And as if Lawrence did not transparently apply to heterosexual cohabitation. (The full decision is here (pdf); it’s a bit of a mess, since age-of-consent laws were also at issue. I don’t have any serious argument with those, however.)
Okay, so here’s how marriage works. For about the millionth time.
When we knew that we were ready, Scott and I simply declared to one another that we were married. From that point on, we were married: We were married in the most important sense of the word, and never mind what anyone else might say. No governments, no priests, no Churches were needed or consulted. In the West, marriages made by the consenting adults alone date to the medieval era, and these even the Church found valid for much of its history.
Some time later, when it became possible for us to have a state-sanctioned marriage, we did so. We did it to make a political statement — but also to reaffirm and renew the vows that we had made to one another in private. Where our marriage in spirit was intensely private (as, I think, it should be), our “second” marriage took place in front of family and friends, and we asked their support for our relationship. (They agreed.)
We also asked governmental support for our relationship. We did this for reasons that I have written about in the past:
Marriage is not… merely about choosing a steady sexual partner. On the contrary, it is a reciprocal agreement with another individual (and often with God), to look after the total well-being of that person and of any children that might come into your mutual care.
This total well-being encompasses all aspects of life, including not just the sexual, but also the spiritual, social, economic, psychological, and physiological best interests of the partner. Ideally, it lasts from the time the marriage is solemnized until the death of one of the partners…
In the decisions that nurturers make for each other, fraud and abuse may lurk at every important juncture. Trust is essential: Nurturers must often act decisively at the very moments when their partners are most vulnerable and least able to act on their own. A situation like this cries out for an explicit, durable, and binding contract, made in advance. Without it, fraud would run rampant. The contract, though, and the benefits that it offers, are not the basis of marriage; these exist only for the sake of the nurturing relationship.
Protecting the right to nurture requires more than merely looking the other way. The nurtured are vulnerable, and nurturers do things for them that non-nurturers must never be trusted to do. Our natural right to designate (or act as) a nurturer therefore leads directly to a contractual right wherein the government distinguishes between nurturers (who may make decisions for us) and non-nurturers (who must not be allowed to pose as something that they are not).
Contrast this to sexual rights, which are by definition extended only to adults who can meaningfully consent, and you will see that there really is no conflict between a hands-off policy for sex and a formal codification for marriage.
It’s wonderful when all the various parts of marriage just happen to be conducted on the same day, and when the personal, the religious, and the contractual all perfectly align. But they remain separable entities, and no amount of legislation will change that fact.
Filed in The Boudoir, The Bureau
It is truly an absurd law to make even the pretense of plural marriage, as opposed to actually legally marrying two people clandestinely, illegal. Really absurd.
Though, there is some historical context here. The context doesn’t excuse the law, but it does explain it. You probably know it.. but for those readers who don’t…
In the mid-1800’s Mormons were severely persecuted in part because of polygamy and even after arriving to Utah were hounded by the federal government (slavery and polygamy as the twin evils was the rallying cry of presidential campaigns).
In the late 1800’s Utah territory wanted to become a state, but to do so the church had to renounce and eradicated polygamy (lots of polygamous families moved to Mexico before and during this time… the “Mormon Colonies” still exist). The church and territory (and later state) did so. They had to go above and beyond what other states did and do.. they had to prove that polygamy was completely and utterly eradicated as part of the culture and law.
Thus the strict laws (which are enforced or ignored depending on the political climate).
Anyway, interesting history that.
I agree that it is nonsense and think the state shouldn’t be in the marriage business at all. But as Trey said, this is the remnants from intense federal persecution of Mormons in the 19th century which *did* go all the way to the Supreme Court and which nearly wiped out the LDS Church. So much for historical church/state separation.
Absurd law. Imagine if, today, governments started arresting people just for being gay. They would be declared fascists.
I agree with you there. What is the state’s compelling intrest in regulating whether or not somebody claims a private marriage with no legal sanction? There are also definite first amendment issues to regulating private religious ceremonies.
I just skimmed, and saw the age of consent issues. And agree with you–the state has an interest in preventing abusive and/or coercive adult behavior towards children. If in Utah, that makes it a crime to say you are married to a child, perhaps it has some Constitutional validity. But then, that could become a slippery slope too, if you get into that slippery slope thing. Though sometimes people worried about slippery slopes start sliding down it themselves. Sometimes you make rational judgements based on information that you have.
The leaders of the LDS Church in the mid 1800’s were polygamysts and yet the 97% of the church consisted of non polygamyst people, so through the church conferance voting system in 1890 the manifesto of discontinuing plural marriage was passed, and over a period of 30 years was totally extermanated out of the church. The leadership being slowly changed over and driving the polygamist family’s to either become monogamist or be excommunicated. Which leaves us with the situation that we now have in Utah today, consisting of the LDS church and all the many morman fragments, and also the laws that have remained on the books and become to be standards yet if delved into would be unconstitutional.
What about the right to the pursuit of happiness??? I agree with so many of you on this??? Why does the state have such a huge interest??? Why do they even care Its not there business!
How dare you! those involved in polygamy, it seems all of you are living under a rock force young girls to marry their stepfathers, they abuse children and do not educate their kids. There are many many groups of women who left these colonies and have their story to tell. Constitional right?? pusuit of happiness?? What about the rights of those young girls! what about those children!! I came across this website looking at news about utah polygamny case and apparently everyone on this webpage thinks it’s okay to abuse children.
There is a difference between a nice gay couple wanting to marry and some old pervert wanting to marry and molest a young teen girl.
you all make me sick!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Stop hyperventilating.
We agree with you that forcibly marrying underage girls is wrong. It’s just rape by another name. And, um, we’re against it. As if that had to be said.
What’s a more difficult question is whether one adult man should be allowed to marry two adult women, if all three of them consent equally. Can they consent equally? Maybe not. But at least it’s a reasonable question.
For a good idea of how we feel about child-rape polygamy, see this post.