The following op-ed, written by our president Connor Boyack, was published this week in the Salt Lake Tribune.
What do public lands and polygamy have in common? While both issues have been at the forefront of Utah politics recently, they share a more fundamental common bond that raises important and controversial constitutional questions.
The Utah Legislature has appropriated millions of taxpayer dollars to mount a legal battle in an attempt to wrest control of large swaths of land from the federal government. This effort is primarily based on one central argument: the “Equal Footing Doctrine.” This doctrine holds that new states admitted to the Union must be considered and treated on equal terms as existing states.
Advocates for state control of public land argue that this doctrine has been violated, given the clear fact that eastern states have almost complete control of public land within their borders, whereas a majority of land in western states, like Utah, has not yet been disposed of by the federal government.
While this argument has been central to the Legislature’s quest for land control, it has not yet been applied to an equally historic and significant issue — that of polygamy.
Utah’s Enabling Act, passed by Congress to allow the Utah territory to create a constitution, form a state government, and become a member of the Union, notes that Utah’s admittance would be “on an equal footing with the original States.” And yet, the same act contains a mandatory provision forced upon the state which few other states (those with early Mormon influence, like Utah) were required to include in their constitution: a prohibition on polygamy, or plural marriage.
Utah was somewhat of an outlier in the late 19th century, given how many polygamists were concentrated within the territory’s borders. It makes sense, then, that the supposed solution would be narrowly applied to a handful of states in which the purported problem existed. Yet it seems odd, and hypocritical, to say in the same breath that Utah would be treated equally with all other states while enforcing a specific provision not generally applied to the rest.
That provision was ratified in Utah’s Constitution as Article III: an “irrevocable ordinance” stating that “polygamous or plural marriages are forever prohibited.” Even worse, Utahns apparently cannot change their own Constitution on this matter; the “irrevocable” portion, to be changed, must have “the consent of the United States” — in other words, the federal government’s blessing.
Republicans in the late 1800s despised polygamy and imposed this prohibition as a condition of entry into the Union. Today, Republicans continue to champion and enforce the polygamy ban. The Utah Attorney General’s Office, for example, proposed and lobbied for legislation earlier this year to re-criminalize “religious cohabitation” (unlicensed polygamy, in effect) after a federal judge invalidated that portion of Utah’s law.
Their argument, quite simply, was that re-criminalization was necessary to keep Utah’s statutes in line with the Utah Constitution, which “forever” bans the practice. As they are charged with upholding this document, the attorney general’s staff argued, they must be able to prosecute peaceful polygamists as criminals.
Their efforts were ultimately unsuccessful — the bill, sponsored by Rep. Mike Noel, was “circled,” or paused, an hour before the legislative session ended—but the fight will continue so long as Utah’s Constitution claims that continued criminalization is the necessary approach.
It may be easy for many to look past this issue as unimportant or unworthy of attention — especially since polygamy is a culturally awkward part of Utah’s past that most people would prefer to ignore or forget. I urge caution against this temptation. Just as states should be treated equally in the Union, so too should all Utahns be treated equally, whether Mormon, black, gay, female or polygamous.
Despite that plea, many will still write this issue off, assuming that most or all polygamists are monsters of the Warren Jeffs variety, deserving of whatever punishment they are given. The facts simply do not support this theory; most polygamists are in mutually consenting adult relationships and loving families. They should, like the rest of us, be presumed innocent until proven guilty of anything — not considered felons outright merely because of their voluntary family arrangement.
The government’s constitutionally justified, though heavy-handed approach to tens of thousands of peaceful polygamists in our state must be re-evaluated and reconsidered. Whatever the reason was for a constitutional ban over a century ago, the continued classification of these Utahns as felons should come to an end.