A recently introduced bill to de-criminalize polygamy in Utah passed out of a state senate committee with a favorable recommendation following a unanimous vote. That vote came despite testimony at a public hearing from survivors of abuse in polygamous families, and organizations like the Sound Choices Coalition that are dedicated to helping women trapped in, or escaping polygamous marriages.
Polygamy has never been legal in the state of Utah, and it is currently considered a felony carrying a 5-year prison sentence. The new bill, S.B. 102, would re-classify polygamy as an “infraction,” and reduce the penalty to a fine and community service, somewhere below the level of a traffic offense.
What on earth is going on in Utah?
A little history is necessary here. The private practice of polygamy was instituted in the 1830s by Mormon leader Joseph Smith and continued under Brigham Young, who led Mormon settlers to what today is the state of Utah in the late 1840s. Utah became an official “territory” of the United States in 1850. Although its Mormon residents sought statehood, the federal government made it clear that the territory would be denied statehood unless the practice of polygamy was made illegal. In fact, Utah is one of only a few states that were required to put a prohibition of polygamy into its state constitution. Article III of Utah’s constitution states in part, “Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.”
With that, Utah was admitted as a state in 1896.
Fast forward one hundred and seventeen years. Utah’s criminal statutes on polygamy came under increasing legal attack. Polygamists had long since ceased “official” marriages with more than one woman; they simply “cohabitated” with other women along with their legally recognized wife. The laws of Utah struggled to address this “loophole” in the polygamy law by considering cohabitation with multiple partners to be the same thing as polygamy. Ultimately, the sexual revolution proved to be the downfall of Utah’s work-around.
In 2013, a U.S. federal judge ruled in Brown v. Buhman (which involved the polygamous family featured in the TLC series, Sister Wives) that the portions of Utah’s anti-polygamy laws which prohibit multiple cohabitation were unconstitutional, but also allowed Utah to maintain its ban on multiple marriage licenses.
Utah’s problem was simply that it didn’t prosecute all unmarried persons who “cohabited,” just families they identified as “polygamists.” Cohabitation had become so accepted and ubiquitous in society that prosecuting it became unthinkable. That created an equal protection issue under the 14th Amendment, since the state was treating similarly situated persons—cohabitees and polygamists—differently. Utah was faced with a choice: prosecute all cohabiting persons, or drop the cohabiting portion of the polygamy statute, the latter of which had already proved to be a failure at stopping the practice.
S.B. 102 continues to include a definition of polygamy that covers both situations the state prohibited all along: either two or more official marriages involving the same person, or a marriage plus cohabitation with another. The penalties ratchet up if any of the marriages or cohabitations are coerced or abuse is involved.
So why does this bill lower the penalty but still keep the definition that was struck down by the federal courts? The bill’s sponsor, Senator Deidre Henderson said, “We need to stop marginalizing a whole group of people in our state. We’re at the point now we have a human rights crisis in our state, and we can’t look the other way.” The “crisis” she’s referring to is fraud and sexual abuse. The bill, in her mind, is designed to avoid prosecution of consenting adults while allowing prosecutors to go after perpetrators of crimes against women.
It could also be considered one more sign that biblical concepts of marriage and families are considered antiquated and unworthy to be defended. As sexual mores changed and cohabitation increased across the culture, it was inevitable that Utah could no longer defend marriage as it once did.
So it has stopped trying.