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Joanna L. Grossman

"Sister Wives": Will Reality Show Stars Face Prosecution for Polygamy in Utah?


Monday, Octber 4, 2010

Polygamy hit the small screen in 2006, when the fictional show "Big Love" debuted on HBO. The show, which has an all-star cast, captivated viewers with its depiction of a man and his three wives living in Sandy, Utah. A major part of the plot is the family's efforts to hide their lifestyle from the outside world.

But now, a new show turns this plotline on its head. In Sister Wives (TLC, Sundays at 10 p.m.), Kody Brown is unapologetically open about his polygamous lifestyle. He has three wives and twelve children (plus one on the way); by the end of the first episode, he is courting wife number four, who has three children of her own. But it's not the gimmick of a sit-com. Neither Kody, nor his wives or children, are playing a part.

To the contrary, this is a reality show about a real polygamous family currently living in Utah. And the difference between reality and fiction has not been lost on local police in Lehi, Utah, who announced shortly after the show's premiere last week that the family would be investigated for felony bigamy.

"Love Should Be Multiplied, Not Divided"

This is a quote from Kody Brown, who was attempting succinctly to explain his commitment to plural marriage. Kody unabashedly admits, "I'm a polygamist, but we're not the polygamists you think you know. I have three awesome wives -- Meri, Janelle and Christine. . . . I like marriage. And I'm a repeat offender. I have adopted a faith that embraces that lifestyle."

Kody goes on to explain that he belongs to a fundamentalist Mormon sect -- a break-off group from the Church of Latter Day Saints that continues to promote and practice polygamy. (The mainstream Mormon church abandoned polygamy as part of official church doctrine in the 1890s.) Comparing the two groups, Kody says there's a "big difference from us and them—similar to Catholics and Protestants."

Kody married his first wife 20 years ago; his second, 17 years ago; and his third, 16 years ago. All three marriages took place before a single child was born, so the children have all been raised with three moms. Kody is now also courting a potential fourth wife -- Robyn, a divorced woman.

The three existing wives are cautiously supportive of Kody's potential fourth marriage, but Christine admits that she "freaked" when she learned that Kody and Robyn sealed their engagement with a kiss. "We didn't kiss until over the altar because I didn't feel right about kissing a married man," Christine explains. Kody also held a family meeting to get feedback from his children on the proposed new marriage, and they, at least while being filmed, were in favor of the addition.

The rest of the show's debut episode is full of details about the group's daily life. How does a family with one husband, three wives, and twelve children actually manage? We see shots of each wife's "apartment" -- a separate area of a large house that was designed with polygamy in mind. The wives talk about the benefits of having sister wives: The arrangement allows Janelle to work long hours outside of the home without worrying about cooking and cleaning; it gives Meri the peace of mind that if anything should happen to her, the two other moms will be there to raise her daughter; and it allows the pregnant Christine to stay home and tend house without worrying about the need to generate more family income.

And there are lots of scenes in the show on the theme "we're just regular folks." Christine burns toast trying to cook it in the broiler, after explaining that she does not have a toaster because "more people die from toasters than sharks every year." The family works together to pull children's loose teeth, and to force grumpy children to help out with yard work.

The show does tackle the sensitive issue of sex in the first episode. Yes, the wives reassure viewers, each of them has a sexual relationship with Kody. But no, the sex never involves more than one wife at a time. "Kody is welcome in each of [the three] bedrooms. Alone. That's just how it is. We don't go weird," says Meri.

No matter how much this plural marriage household tries to portray itself as perfectly ordinary, it still differs from monogamous families in one significant respect: The lifestyle Kody and his wives embrace is against the law.

Polygamy in America: A Brief History

Bigamy has always been a crime in this country. It's against the law to have more than one wife—or more than one husband, though this is a much, much rarer circumstance. Bigamy was for a long time a state crime; and it was declared a federal crime in 1862 by the Morrill Act—aimed specifically at the Mormons—which was upheld in 1878 by the U.S. Supreme Court against the Mormon claim that the ban violated the constitutional guarantee of the free exercise of religion. Utah's admission to statehood was conditioned on its prohibition of bigamy; and every state today both declares bigamous marriages to be void and makes any attempt to contract such a marriage a crime.

In the Nineteenth Century, the typical case of bigamy involved a stranger who comes to town with a line of talk, woos a local woman, and never bothers to tell her that he has a prior wife (and maybe kids) back where he came from. This second marriage was (legally speaking) null and void. Bigamy was a kind of fraud; and was especially serious in the days when sex was illegal, except in the bedroom of (validly) married people. Everything else was not only illegal, but also highly stigmatized, at least in polite society. At that time, bigamy typically involved an innocent second wife, who was most definitely a victim—cheated, and robbed of her virtue, by an unscrupulous cad.

There were prosecutions for bigamy in the Nineteenth Century; but nobody would have defined bigamy as a serious social problem until the Latter Day Saints (the Mormons) came along. Mormon practice went way beyond bigamy; it authorized polygamy—a man could have not just two or three, but sometimes many wives. Church doctrine not only approved of this; it positively enjoined it on its leaders.

And some leaders of the church indulged in massive polygamy (Brigham Young may have had as many as 55 wives), which utterly scandalized respectable people in the rest of the country. Good bourgeois citizens found it appalling that some men were having sex with a whole cluster of women, and, worse yet, claiming a religious duty to do so. A lurid literature (most of it invented) described Mormon households as seething pits of lust.

Federal authorities took vigorous legal steps to crush this obnoxious movement. They arrested Mormon leaders and other polygamists; and they moved, finally, to dissolve the church in its Utah headquarters. The leadership of the church, faced with relentless persecution, officially abandoned polygamy in 1890, in order to end the crisis. And this move had its effect. The persecution stopped. Utah was admitted to the union.

But not everybody went along. Today, mainstream Mormons can have only one wife; but there were and are breakaway sects that persisted in practicing polygamy. Members of these sects usually live in small, isolated communities out West. Church leaders in these groups have tended to go in for plural marriage wholesale. One leader had as many as 80 wives. (In these groups, alpha males tended to sop up the supply of eligible women; as a result, many young men had to either leave the group or do without a partner). When Rulon Jeffs, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), died in 2002 at age 93, he left behind as many as 20 wives and hundreds of grandchildren; 33 sons served as pallbearers at his funeral. An estimated 40,000 fundamentalist Mormons still practice polygamy today.

Enforcement of the Laws Against Polygamy

In the age of the sexual revolution, one might ask, Why bother with polygamy? Nobody seems to care nowadays how many women a man has sex with outside of marriage— a man with a whole stable of mistresses or bed-partners would not be breaking any laws. Why, then, should it be a crime to claim these women as "wives?"

During the second half of the Twentieth Century, prosecutors in counties with polygamous communities essentially simply ignored the practice. But the turn of the Twenty-First Century saw a resurgence of enforcement of anti-polygamy laws.

In 2001, Tom Green, a Utah man, was convicted of four counts of bigamy and sentenced to five years in prison. He had numerous wives, some related to one another, and twenty-five children (with four more simultaneously on the way at the time of his trial). He provoked local prosecutors out of their habit of non-enforcement by appearing on popular talk shows touting their lifestyle and proclaiming a constitutional right to pursue it. In a feminist age, polygamy looks like an aggravated form of male supremacy and an extreme case of the subjugation of women. The children, too, are defined as victims.

In some ways, Tom Green epitomized the focus of recent campaigns against polygamy, which emphasize the exploitation of women and children, rather than lust and sex and immorality as such. Green's youngest wife was only 14 when they married and had been already pregnant; Tom had once married her mother, too.

The same concern was seen in the raid of the Yearning for Zion ranch in Eldorado, Texas, where fundamentalist Mormons were living by the old, repudiated rules. Several leaders of the group were accused of marrying and having sex with girls who were underage—some as young as 12—and conspiring to arrange marriages for these young girls that would assuredly include forced sex. (Marci Hamilton, a FindLaw columnist, discusses the fictional polygamy in Big Love here and the seedier reality of the community raided in Texashere.)

Will the Browns be Next in Line for a Polygamy Prosecution?

As noted above, several media sources report that the local police are investigating the Browns of "Sister Wives" for violation of Utah's bigamy laws. Did they, in fact, violate the law? Thus far all signs point to yes, although one question that remains is whether any or all of these marriages were licensed by the state, or whether these marriages were all merely "contracted" through a religious ceremony. On the show, Kody says all three women are his "wives," but says nothing specific about how the marriages were contracted.

If even one of the marriages is a legal, civil marriage, then Kody and the wives are probably guilty of bigamy under Utah's definition. The Utah Code states that a "person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." This is broad in three respects -- it criminalizes the behavior of both purported spouses, not just the one who is already married; it, as interpreted by the state's highest court, includes religious ceremonies undertaken without a civil license as falling under the heading of "purporting to marry"; and it criminalizes cohabitation (as well as actual marriage) with a second person while married to someone else.

This broad definition is designed to preclude legal maneuvering by polygamists, such as those who divorce each wife immediately prior to marrying the next, while continuing to live with all of them as "husband and wife;" or those who engage in only one civil marriage followed by a series of religious marriages. Thus, for example, if Kody were to be legally married to Meri, but only religiously bound to Janelle and Christine, he (and they) would still be in violation of this law.

But if all three were merely religious "marriages" -- and not marriages recognized by the state of Utah -- then Kody and his wives might be safe from prosecution. It is not a crime to engage in multiple, simultaneous cohabitation as long as there is no civil marriage involved. Kody is not doing himself any legal favors, though, by proclaiming himself "a polygamist" and stating that he "married" three women.

It is questionable whether a state has the authority to criminalize cohabitation as a form of bigamy after Lawrence v. Texas , a 2003 Supreme Court case holding that the constitutional right of privacy includes a right of adults to enter into consensual, intimate relationships without interference from the state. But the Utah Supreme Court, in a 2006 case, State v. Holm , upheld the state's definition of bigamy against a federal constitutional challenge. The case provoked a strong partial dissent from Chief Justice Christine Durham, though, who urged that the cohabitation portion of the law was in clear violation of Lawrence.

The Upshot: We Must Wait to See if the Bigamy Laws Can and Will Be Enforced Against the Browns

Based on the information that has so far been made public, there is no way to tell whether the Browns will have their 15-minutes of fame extended by a trip through the criminal courts system and perhaps to jail. Certainly, they have made it hard for local authorities to ignore their apparently illegal behavior, by parading it on television for all the world to see. Because the household does not seem to involve the seediest aspects of polygamy -- child marriage, rape, sex with minors, or the burden of inadequately supported children on the state---the Browns present the polygamy question in its purest form. Will the state enforce its bigamy laws, simply because they are there, without the added stimulus of some form of exploitation? Wait and see.

Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at Stanford University and an internationally renowned legal historian. Professors Grossman and Friedman are co-authors of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011).

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