Academic journal article Duke Journal of Gender Law & Policy

The Positive Effects of Legalizing Polygamy: "Love Is a Many Splendored Thing"

Academic journal article Duke Journal of Gender Law & Policy

The Positive Effects of Legalizing Polygamy: "Love Is a Many Splendored Thing"

Article excerpt

INTRODUCTION

Long thought to be a hidden, rare, and cultish phenomenon, polygyny is in fact practiced by an estimated 30,000 to 100,000 people in North America. (1) It has recently been the focus of an FBI "Most Wanted" national manhunt, a raid in a small Texas town, an issue in political elections, and even the subject of a hit TV show "Big Love." Although "polygamy" is defined as "the state or practice of having more than one spouse simultaneously," (2) most polygamists in the United States engage in "polygyny," or, "the condition or practice of having more than one wife at the same time." (3)

Polygynists (4) in the United States are generally Mormon fundamentalists who believe they are "the true keepers of the faith." (5) Though formally excommunicated by the Church of Jesus Christ of Latter-day Saints ("LDS"), fundamentalists continue to follow its founder Joseph Smith's belief, known as "the principle" or "the marriage revelation," that "a man need[s] at least three wives to attain the 'fullness of exaltation' in the afterlife." (6) More specifically, women "sealed with men for eternity" grant men the ability to reach the third and highest level of heaven where they become gods. (7)

There is no reliable census data on the number of polygynists living in the United States, (8) but it is believed that thirty to fifty thousand fundamentalist Mormons live in polygynist families and communities in the western U.S. alone. (9) A joint report issued by the attorneys general of Utah and Arizona estimated that 37,000 or more Mormon fundamentalists currently practice polygyny in those two states alone. (10) Tapestry Against Polygamy, a group formed by women who fled polygynous relationships and families, believes there may be as many as 100,000 practicing polygynists nationwide. (11) These fundamentalist sects flourish in Utah, Arizona, Idaho, California, and, more recently, Texas. The practice is illegal, and according to many, these theocracies foster incest, underage marriage, sexual abuse, rape, physical abuse, nonconsensual marriage, birth defects, welfare fraud, poverty, and a deprivation of education and other opportunities. (12) Not surprisingly, these problems overwhelmingly affect women and children.

Yet despite universal anti-polygamy legislation, state and federal governments have generally chosen not to take legal action against polygynists. Instead, government officials typically ignore polygynist communities and the abuses that occur therein with "a lot of secular eye-winking." (13) This paper will argue that state governments' failures to implement anti-polygamy laws have adversely affected polygynist women and children. In other words, by turning a blind eye to polygamy's negative ramifications, state governments indirectly condone and thus perpetuate abuse and neglect. Thus, if there is to be a rational policy in this area, it should consider the legalization of polygamy, thereby allowing greater regulation of the practice, compelling polygynous communities to emerge from the shadows, and openly assisting the women and children who live in them.

I. A BRIEF HISTORY OF POLYGAMY IN THE UNITED STATES

A. Polygamy in the Mormon Religion

On April 6, 1830 in Fayette, New York, Joseph Smith, Jr., along with five of his followers, founded the Mormon Church. (14) Smith had been inspired to establish the Church when an angel led him to gold plates, chronicling the story of ancient inhabitants from Israel who settled in the Western Hemisphere. (15) This experience was the basis of the Book of Mormon, which, along with the Bible and the Doctrine of Covenants, serves as the sacred text of the Church. (16) According to the Doctrine, in a revelation first received in 1831:

 
   As pertaining to the law of the priesthood--if any man espouse a 
   virgin, and desire to espouse another, and the first give her 
   consent, and if he espouse the second, and they are virgins, and 
   have vowed to no other man, then is he justified; he cannot commit 
   adultery for they are given unto him; for he cannot commit adultery 
   with that that belongeth unto him and to no one else. … 
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