The following is our op-ed published in this weekend’s Salt Lake Tribune.
On May 15, 1945, fifteen men in suits and ties gathered for a photo opportunity on the steps of the Utah State Prison as they began their indeterminate sentences of up to five years. The supposed crime for which they were being incarcerated was “unlawful cohabitation.”
Put differently, the freedom of fifteen men was severely restricted, with taxpayers footing the bill for their prosecution and incarceration, because the men had strayed outside society’s norm by consensually choosing to love, support, and live with more than one female companion and their subsequent children.
The “unlawful cohabitation” charge was a result of political creativity, allowing prosecutors to successfully punish polygamists using a lower standard of evidence. While in past decades it was near impossible to punish polygamy due to jury nullification, wives being exempt from testifying against their husbands, and the difficulty in proving the existence of a sexual relationship, it became much easier to document and demonstrate mere cohabitation to the courts.
To be sure, Utah has a convoluted and controversial connection to polygamy, and both state and federal law over the past 130 years has been repeatedly amended to find effective ways to extinguish the practice. It hasn’t worked.
There are tens of thousands of individuals—Americans with the same unalienable rights as you and I—who currently live in polygamous families in Utah and other states. The many prosecutions that preceded the 1945 group, the infamous Short Creek raid that followed a few years later, and subsequent cases all illustrate the ultimate ineffectiveness of these laws.
But they are more than just ineffective—they are illegitimate. Whether such consensual unions exist for religious reasons or otherwise, the government lacks the authority to imprison people who so choose to live. Think about it: the government derives its just powers from individuals who comprise it. If your married neighbor decides to invite another adult woman to live with him, and everybody in that relationship agrees, do you have the moral authority to beat, fine, or imprison him? You do not, and therefore cannot empower your government to do it on your behalf.
Like any demographic, there are many religious, cultural, and political differences between varying polygamous groups. The oddities of and abuse within the FLDS faction are well known, yet more mainstream and “normal” polygamists like Kody Brown and Joe Darger stand as examples that defy the common stereotype that polygamists are Amish-like in their appearance and societal seclusion.
And let’s be clear: polygamous marriages are not perfect. There is abuse, domineering patriarchy, and oppressive cultural pressure within some plural marriages. But many monogamous marriages feature exactly the same problems.
In its current incarnation, Utah’s anti-polygamy law makes it a third-degree felony for a married person to “purport to marry” or “cohabit” with another person. Having been investigated and threatened with prosecution by Lehi Police and the Utah County Attorney, polygamist Kody Brown fled Utah with his family and sued the state to challenge this law in federal court. A ruling is expected any day from Judge Waddoups, and many believe that there is a good chance the law will be overturned.
Utah needs to abandon its anachronistic legal crusade against peaceful individuals who practice what many of our ancestors proudly did. To the extent that abuse exists within polygamous communities, then it should be investigated and punished. The best way to discover and stop abuse is to lift the threat of criminal prosecution from consenting adults, thereby encouraging them to stop living in the shadows of society. They, and we, will be better off as a result.