Attacking Pluralism

Polygamists complain that Tom Green is giving them a bad name. The Utah telemarketer, who has five wives and 29 children, was recently convicted of bigamy in a high-profile trial, the first such case the state has pursued in half a century.

Although Green could face up to 25 years in prison when he's sentenced on June 27, he is not an ideal martyr for the 30,000 or so Utahans who practice plural marriage out of religious conviction. For one thing, he was found guilty of criminal nonsupport in addition to four counts of bigamy because his family received welfare money that he failed to repay.

For another, Green married several of his wives when they were minors. In a separate case, he faces a rape charge for having sex with one of them when she was 13.

These complications distract attention from the central issue of whether the state ought to be dictating domestic arrangements among consenting adults. Even in this case, none of Green's wives is complaining, and there is no evidence that his children have been abused.

Juab County Attorney David Leavitt decided to prosecute Green mainly because he was indiscreet, appearing on national talk shows to defend his unusual lifestyle. "He reacted because it's a small community and [Green] was bringing bad publicity," Salt Lake County District Attorney David Yocom told The Salt Lake Tribune, adding that his own office has no plans to prosecute polygamists.

Utah Attorney General Mark Shurtleff says he doesn't want to crack down on plural marriage either. In fact, he'd like to see bigamy classified as a misdemeanor rather than a felony, so polygamists will be less reluctant to contact the authorities when crimes occur in their communities.

Which raises the question of why polygamy is a crime at all. In Utah, the answer is clear: It was a price of statehood.

Until 1890, the Church of Jesus Christ of Latter-Day Saints taught that Mormons ought to practice plural marriage whenever they could manage it. Under pressure from the federal government, the Mormons abandoned this tenet, and Utah was admitted into the Union in 1896 only after adopting a constitutional ban on polygamy.

Utah's contemporary polygamists, denied church membership for espousing what was once orthodoxy and is now heresy, believe the church's capitulation was a mistake. They argue that officials such as David Leavitt, himself a descendant of polygamists, are betraying Mormon tradition when they persecute people for living according to Joseph Smith's teachings.

The controversy over polygamy is more than a dispute about Mormon doctrine, of course. It's also about the limits of religious freedom.

The U.S. Supreme Court addressed this aspect of the issue in 1878, when the Mormon church still sanctioned plural marriage. Charged with violating a federally imposed territorial law against bigamy, a Mormon named George Reynolds argued that he ought to be shielded by the First Amendment.

"The question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land," Chief Justice Morrison R. Waite wrote for the majority. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Waite had a point. To use one of his examples, should people be permitted to practice human sacrifice if they sincerely believe their religion requires it?

Waite took it for granted that polygamy, which "has always been odious among the northern and western nations of Europe," fell into the same category as human sacrifice. Since the Bible endorses the former practice (something that was not lost on the Mormons) but condemns the latter, this judgment was questionable even as an argument from tradition.

As an argument from political principle, it's even harder to sustain. Unlike human sacrifice, consensual polygamy does not violate anyone's rights. Whatever its merits, it cannot reasonably be banned in a free society that tolerates all manner of sexual relationships and living arrangements, in and out of wedlock.

Green himself eschewed marriage licenses. But Leavitt successfully argued that he was still guilty of bigamy because "a solemnized marriage otherwise valid is not rendered invalid by failure to meet licensing requirements."

Green is not being punished for having children with several different women. He is being punished for sticking around.