Prosecution of plural marriage a thorny issue for courts

Prosecuting polygamy is no easy matter

Salt Lake Tribune/June 28, 1998
By Dawn House

A badly bruised 16-year-old girl picked herself up from the field where she was beaten and abandoned last month, walked to a gas station in the northern Utah farming town of Plymouth and telephoned police.

She said her father had pounded her for leaving her seven-month marriage to her uncle, who has 14 other wives. Police charged her father, John Daniel Kingston, 43, with child abuse. And what is rare for Utah law enforcement, investigators are considering filing statutory-rape charges against her 32-year-old uncle -- her father's brother, the man who took her as his wife shortly after she reached her 16th birthday.

Prosecutions can be tricky because judicial bodies have rendered conflicting opinons on the rights of polygamists.

The 16-year-old girl is not legally married in the eyes of Utah authorities. (As is custom in most polygamist homes, the man's first marriage is a binding civil ceremony recorded with the state. But all other unions are so-called ``spiritual marriages'' recognized only by the polygamist community, so there is no paper trail for investigators to follow.)

Normally, sexual relations between an adult and a juvenile would trigger statutory-rape charges. But since the LDS Church publicly acknowledged the practice in 1852, polygamists have claimed protection under the First Amendment.

Now, with the explosion of the gay-rights movement, polygamists

' rights have become even more confusing. University of Michigan law professor David L. Chambers said many Americans ``look at gay and polygamous families today and ask different questons than they would have asked 50 years ago.''

In modern polygamous and lesbian households, he wrote in the Hofstra Law Review, ``little Heather has two mommies, and more and more Americans believe that if Heather is doing well, then having two [or more] mommies is just fine.''

And in an age when sex between consenting adults is not considered a crime, there is no political will to enforce 19th-century anti-polygamy laws.

``If polygamists are not breaking other laws, we won't prosecute,'' said Iron County Attorney Scott Burns. ``They're pretty independent. They just want to be left alone.''

Happy bridesmaids: Royston Potter's wedding portrait shows just how consenual many polygamists

' marriages are. It pictures him, the happy bride and Potter's two other wives serving as bridesmaids.

Potter was not like the thousands

of other polygamists in Salt Lake County who marry secretly. He talked openly of his relationships, even to fellow officers on the Murray police force.

He was on the job less than three years when word of his multiple marriages got to the Murray police chief. Potter was fired and sued the city, saying the termination violated his right to privacy and to the free exercise of religion.

Two federal courts rejected Potter's arguments. In 1985 the U.S. 10th Circuit Court upheld a lower court's ruling that Utah was justified in enforcing its laws against plural marriage. About the same time in Arizona, though, the state supreme court issued an opposite finding, saying town marshal Sam Barlow could not be decertified for having three wives unless his polygamy jeopardized public trust.

Potter, 43, insists he could have won his lawsuit if his claims had been based solely on religion. ``I had that argument, but the judge forced me to attack the state of Utah's enabling act,'' he said. ``In Utah, bigamy and polygamy are considered the same.''

Not exactly.

Bigamy is criminally prosecuted in Utah if there is fraud, when one wife is led to believe she is the only spouse. Polygamists also can be prosecuted -- provided authorities deem there is fraud in receiving welfare payments.

Such was the case against John Ortell Kingston, prophet of the Latter-Day Church of Christ. In the early 1980s, a Utah judge ordered Kingston to undergo paternity tests to determine if he had fathered 26 children from three women who had received $200,000 in state child-support and medical payments. Prosecutors said Kingston was financially able to support the children, but never took him to trial. In a settlement agreement, Kingston promised to reimburse the state. In return, he was not required to acknowledge paternity.

`Above the law': More than a century ago, Mormon colonizer Brigham Young set the stage for members' defiance of the law: ``If I had 40 wives in the United States, [federal agents] did not know it, and could not substantiate it, neither did I ask any lawyer, judge or magistrate for them. I live above the law and so do this people.''

The first polygamy case that came to the U.S. Supreme Court was brought against Young's private secretary, George Reynolds. And like his church prophet, Reynolds was defiant when marshals banged on his door, searching for his second wife.

``He said that she was not in, and that I could get a search warrant if I wanted to search the house,'' Deputy Marshal Arthur Pratt testified. ``I said, `Will you tell me where she is?' ''

``No,'' Reynolds replied. ``That will be for you to find out.''

He was convicted of bigamy under the Morrill Act, outlawing polygamy in U.S. territories, and sentenced to two years' hard labor. In his appeal, Reynolds argued that if he had ignored his religious duty to marry more than one woman, ``the penalty for such failure and refusal would be damnation in the life to come.''

But in the 1878 high-court ruling that is cited in modern-day cases, justices called polygamy ``an offense against society'' and ruled the First Amendment did not exempt Reynolds from criminal anti-bigamy laws.

``To permit this would 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,'' wrote Morrison Remick Waite, chief justice and a founder

of the Republican Party. ``Government could exist only in name under such circumstances.''

Right to adopt: In 1991, Utah Justice Christine Durham did not see it that way in deciding whether

polygamists had the right to adopt children.

``The fact that our [state] Constitution requires the state to prohibit polygamy does not necessarily mean that the state must deny any or all civil rights and privileges to polygamists,'' she wrote.

Vaughn Fischer, a polygamist and construction worker living in Hildale, had filed for custody of six children belonging to his third wife, Brenda Thorton, after she died

of breast cancer. The pair had been married for six weeks before her death.

A trial judge ruled Fischer could not adopt because of his ``criminal conduct'' in teaching and practicing polygamy. Fischer appealed; Utah's highest court reversed the decision and ordered the judge to determine if the Fischers were fit parents, regardless

of their open practice of polygamy.

Justice Richard Howe sharply disagreed with the 3-2 ruling: ``It would be difficult to conceive of a factor which works more against the interest of the children than ongoing criminal conduct by the adoptive parents,'' he wrote. Teaching ``the children on a daily basis that the statute proscribing bigamy and polygamy may be ignored and [flouted] may well breed in the children a disrespect for other laws.''

Fischer said the decision brought to mind a prophecy by early Mormon leader George Q. Cannon, who predicted (years before the LDS Church banned the practice in 1890) that polygamy would be outlawed by the state but eventually would be restored.

``This [adoption ruling] could be the beginning of things being righted,'' said Fischer.

Tim Anderson, attorney for the children's two aunts who fought the adoption, decided against appealing. ``It was too painful for them,'' he said.

Denied a home: It may have been settled that polygamists have the right to adopt, but in another ruling, a federal judge said they and their families can be denied a place to live.

In April 1996, Henry, Mark and Hyrum Barlow were willing to pay $468,070 for four lots in a Lehi subdivision to build homes for their families. But the sellers backed out

of the deal when they became suspicious the Barlows were

polygamists. The clan sued, alleging the couple had violated the Federal Fair Housing Act by refusing to sell, based on religion.

Judge Dee Benson dismissed the complaint, saying because polygamy is ``unquestionably unlawful'' it does not qualify for protection. Benson cited the 1878 Supreme Court decision, saying polygamy is ``one

of those rare religious practices that [are] contrary to the interest

of society and undeserving of constitutional protection.''

Still, since the 1950s, not a single polygamist has been criminally prosecuted in the United States. And in 1992, Canada authorities opted against charging leaders of a 50-member polygamous commune in Creston, British Columbia, concluding laws banning plural marriage unconstitutionally restricted religious freedom.

Dan Barlow, mayor of Colorado City, Ariz., whose fundamentalist followers run the Canadian commune, said the decision is another signpost on the road to legalizing polygamy in the United States.

Polygamists' first marriages already are state-sanctioned. If the 16-year-old girl who ran away from her polygamous husband had been civilly married, prosecutors would not have the option of filing statutory-rape charges against her husband.

Such unions are legal, even when the bride is as young as 14 and the groom is old enough to be her grandfather.

After performing one such ceremony, Salt Lake County Clerk Sherrie Swensen asked Utah lawmakers to raise the minimum marriage age in Utah from 14 to 16. But this year, legislators turned it down by a single vote.

``A lot of us felt it took away freedoms,'' Sen. Robert Montgomery, R-Ogden, explained. ``It took away a basic right for young people to have families.''