ATLANTA, Ga. (RNS) — When authorities raided a Fundamentalist Church of Jesus Christ of Latter-day Saints compound in April and placed more than 400 children in state care, it brought the long-simmering issues of polygamous communities to a boil.
Following calls from Sen. Harry Reid, D-Utah, for Southwestern states to crack down on what he called “the epidemic of lawlessness in polygamous communities,” a federal prosecutor has been appointed to work on the issue with Utah, Arizona and Nevada, where other communities practice polygamy.
Utah Attorney General Mark Shurtleff has said prosecuting consenting adults for polygamy may lead to a legal precedent supporting the practice. His focus, instead, has been other “crimes within polygamous communities” such as underage marriage, domestic abuse or fraud.
John Witte, a scholar of marriage law and director of the Center for the Study of Law and Religion at Emory Law School in Atlanta, responded to questions about why prosecuting adults for polygamy is so difficult and whether the practice may one day be legalized in the U.S.
Q: Do any of the legal issues in the Texas case concern polygamy?
A: I doubt it. The main questions are going be whether there's child abuse, coerced underage marriage and statutory rape. Texas and every other state has had polygamy laws on the books since the time of their founding and those laws are largely dead letters.
Q: So anti-polygamy laws are on the books but they're not used?
A: There's long been ample documentation of some 30,000 polygamous Mormon families scattered throughout the Western states, and there is recent anecdotal evidence of several thousand polygamous Muslim families, especially on the Eastern seaboard.
But straight application of polygamy laws against those groups is relatively rare. Partly, states are trying to avoid the questions of constitutional freedom that inevitably will be raised if those parties are prosecuted for violation for polygamy laws.
Q: Why is polygamy illegal in the U.S.?
A: That's a harder question to answer than it used to be. The answer used to be that it was prohibited by the Bible and by tradition.
Scripture as traditionally interpreted required that marriage be formed by a union of two — not three or four — into one flesh. Because of those Christian foundations, marriage had a particular form that couldn't be renegotiated. The common law absorbed those teachings, and they were perpetuated in American federal and early state law.
It's harder to press that case today. Some of the arguments against polygamy are about equal protection — Why should a man be able to have multiple wives but a woman not be able to have multiple husbands? — or the transmission of sexual diseases or the difficulty of administering marriage law when there are multiple spouses.
But the argument that really sticks today is the argument for moral repugnancy, that it's just plain wrong for parties to be engaged in a polygamist union.
Q: The popular HBO series, Big Love, portrays a suburban polygamous family, and real-life polygamous families have recently stepped forward through websites and talk shows to argue for social acceptance. Do these developments cloud the moral repugnance argument?
A: The moral repugnance argument may well erode through all these alternative domestic relationships and the increasing acceptance of “Big Love”-type arrangements. Whether those will be sufficient to change the constitutional laws is an open question, but they certainly will be the grounds on which legislation can change.
The experiment we're engaging in today with respect to same-sex marriage, or alternative civil unions, or domestic partnership unions — all of which are currently available under certain state laws — is going be the beachhead on which the legalization of polygamy will have to make its case.
Q: The Bible includes stories of polygamous patriarchs, such as Abraham and David. At what point in the Judeo-Christian tradition did monogamy become the norm?
A: In the Judeo-Christian tradition, monogamy came with the giving of the law on Mount Sinai — 613 commandments that comprised the Torah. The Torah has a whole series of laws making it clear that marriage is defined as the union of a man and a woman.
There are a lot of examples of polygamy in the Bible, and there are many examples of polygamous practice in the Jewish and Christian traditions from the first century forward. Intermittently in the history of the West, anti-polygamy campaigns were mounted, with polygamists condemned as heretics and singled out for persecution. But there's a small but persistent practice of polygamy in Western religious traditions.