Robert Gehrke: Utah should decriminalize polygamy — but legally it can’t

(Francisco Kjolseth | The Salt Lake Tribune) “Clamping down on polygamist communities only makes them more insular,” writes Robert Gehrke.

Nineteen years ago, my boss at the time sent me to Colorado City and Hildale, to report on why members of the isolated polygamist towns were pulling their kids out of school.

Some members said it was preparation for the Second Coming, foretold by the Fundamentalist Church of Jesus Christ of Latter-day Saints’ enigmatic new leader, Warren Jeffs, who was stepping in to fill the shoes of his aging father.

It proved to be one of the most fascinating assignments of my life and the story made some waves internationally. I even got a call from a British journalist looking for tales of the horrors of polygamy and asking why the state wasn’t swooping in to arrest them all.

I didn’t provide the outrage fuel she expected. Sure, there were horror stories. But I also noted that large-scale raids, like those in Short Creek in 1953, had backfired. And when I suggested that criminalization of polygamy may be exacerbating the abuses in polygamist communities, she got angry.

“I didn’t realize you were one of the cultists,” she huffed, the proper British accent adding a little sting to the insult, and hung up on me.

Perhaps my polygamist ancestors were somewhere smiling.

The trip had begun to reshape my own views of polygamy. It wasn’t a black-and-white issue — with welfare cheats spiriting away young girls — but something more complex, deserving of a nuanced, thoughtful approach.

Since then, the way the state perceives the issue has also evolved. Last week, my colleague Nate Carlisle, the foremost polygamy beat reporter, wrote that state Sen. Deidre Henderson is working on legislation that could reduce plural marriage to an infraction, on par with a speeding ticket.

It makes sense for a lot of reasons.

First and foremost, the polygamy statute is almost never enforced. The stated policy of the Utah Attorney General’s Office is to only charge the crime when it’s tacked on to other, more egregious offenses, like sex abuse or fraud.

That’s partly because it’s challenging to prove, but also partly because there is a good case to be made that the ban — which so far has withstood legal challenges — rests on some questionable constitutional footing.

In 2006, Utah Supreme Court Justice Christine Durham wrote an insightful dissent in a case challenging the constitutionality of Utah’s bigamy law, arguing that, unless partners enter into legally binding plural marriages, the state doesn’t have an interest in criminalizing their private relations.

In 2013, in the case involving the husband and four wives from the reality TV show “Sister Wives,” U.S. District Judge Clark Waddoups invalidated a portion of Utah’s polygamy statute, calling it “facially unconstitutional.” An appeals court ruled the Browns lacked standing to sue and overturned the ruling without addressing the merits of the case. The Legislature later revised Utah’s bigamy ban.

Since Durham’s dissent and Waddoups’ ruling, the US Supreme Court ruled in the landmark Obergefell case, guaranteeing gay and lesbian couples the right to marry. In oral arguments in that case, Justice Samuel Alito questioned why the same logic to justify same-sex marriage shouldn’t also apply to polygamy and in his dissent, Chief Justice John Roberts argued the logic the majority used to legalize same-sex marriage “would apply with equal force to the claim of a fundamental right to plural marriage.”

The justices, obviously, were using polygamy as a scare tactic to justify limiting the definition of marriage and the reality of applying Obergefell to a plural marriage is more complicated than the justices suggest. But there is some logical continuity to their suggestion.

I’m not arguing the state license and recognize plural marriages the way it does others — just that it shouldn’t threaten those who are “spiritually married” or living a polygamous lifestyle with a felony.

There is no clear, compelling government interest in arguing that, “What two consenting adults do is OK, but what three (or four, or five) do is not” — especially when the arrangement is part of a long-practiced religious belief.

Historically, arguments for the ban have been rooted in the dynamics of traditional polygamous communities — namely that the practice subjugates women and that it fosters child abuse. And there is validity to both.

We know that in fundamentalist communities, child brides are a problem. But children cannot consent to marriage and having sex or arranging for sex with a child remains a serious crime — ask Warren Jeffs, who is serving a life sentence plus 20 years.

If human decency and a potential life sentence don’t deter child abuse, a barely-used criminal ban on plural marriage isn’t going to be more effective.

Whether women in fundamentalist communities are indeed voluntarily consenting to polygamous relationships is a pricklier problem, and always has been. But that is a cultural problem more than a legal one.

We can empower women to make informed decisions — offering education, job skills that foster independence, and resources for people who want to leave closed communities — but at some point, adults get to make adult decisions.

Clamping down on polygamist communities only makes them more insular — just like we’ve seen, for example, amid the harsh rhetoric and crackdowns on undocumented immigration. That makes it harder to investigate the serious crimes that can and do occur, like child abuse, rape, domestic violence and fraud.

You might ask: If all of this is true, why not just wipe polygamy off the books entirely?

Much like polygamous marriages (I presume), it’s complicated.

If you’ve studied Utah history, you know that Utah wasn’t allowed to join the United States unless it adopted a clause in the Utah Constitution stating that “polygamous or plural marriages are forever prohibited.”

Not only that, the ban is “irrevocable without the consent of the United States and the people of this State.” So until Congress acts AND Utahns amend the Constitution, we have to have some law on the books.

That doesn’t mean, however, that we have to make the prohibition onerous, and Henderson’s proposal would go a long way toward respecting choices made by consenting adults and maybe even bring some who have been forced to live in the shadows into the light.