Polygamy in America: Between Society, Law, and Gender

CHAPTER ONE

1.0 Introduction

This paper evaluates how gender, legal, and societal issues inform the polygamy debate in America. Broadly, this paper subdivides into five chapters. The first chapter discusses polygamy in the Mormon society. This chapter evaluates the history of the Mormons and the role of fundamental Mormons in promoting polygamy in America.

The second chapter discusses the changes in societal views about polygamy. Here, this chapter explores the old and new society views about polygamy. This paper explores the judicial views about polygamy in the third chapter. The judicial background of polygamy, contradictions in the application of polygamy laws, and the legal position towards fundamental Mormon polygamous unions comprise the main sections of this chapter.

Lastly, this paper analyzes gender and the conception of culture in the fourth chapter. Comprehensively, in the “conclusion” section, this paper suggests that the unchanged religious and gender concerns surrounding polygamy inform America’s unchanged legal position towards polygamy. In this regard, the government needs to address the gender, religious, and cultural issues surrounding polygamy to find a lasting solution to the polygamy dilemma in America.

1.0 Polygamy and the Mormon Society

“An estimated 30,000 to 50,000 people live a polygamist lifestyle in the US,” (Anderson, 2010, p. 1).[1] The American population practicing polygamy traces its roots to early settlers in North America who married two or more wives. Native Americans and European mountain men are among the first people in America to practice polygamy.

Historical excerpts also show that Scots-Irish men and some Welsh immigrants also practiced polygamy before the 20th century (while others continued to practice the same union after the civil war) (Anderson, 2010, p. 1).[2] Alexandre (2007)[3] also says that some Muslim societies living in America practice polygamy discreetly.

Many societies around the world practice polygamy in great proportions, but the US, perceives this practice to be culturally unacceptable. It is therefore unsurprising that the American legal system does not acknowledge this form of union. The recent arrest and prosecution of Polygamist, Jeff Warren, is an example of the position that America’s legal system has taken towards polygamy (Anderson, 2010).[4]

According to Warren’s supporters, the American law discriminates against polygamists because there is more to polygamy than the law considers. In their defense, their way of life is not any different from other typical American families.

Legally, people have debated polygamy at the highest levels of the US justice system, including the Supreme Court and various state courts. However, no progressive legal support for polygamy has emerged from these debates. In few words, there have been many shocking revelations about polygamy in America and its continuation (within some communities), despite its legal prohibitions. In fact, people think about polygamous isolated communities and the marriage of underage girls (as brides) whenever they think of polygamy in the US.

There are a few isolated calls to stop America’s laws that prohibit polygamy because advocates of polygamy believe it is time that America accepts that people have a right to choose whether to be polygamous, or not (Anderson, 2010).[5] Joe Darger, (the head of a polygamous family in America) recently said that, “For change to be effective, people must be willing to stand for a principle of what is correct, even if that is uncomfortable for society as a whole” (Sawyer, 2012, p. 2).[6]

Supporters of this view explain that polygamous families in America are not different from other American families, and in a country, that supports liberalization, it is barbaric for the state to order how people should live their lives because people should have the right to pursue their versions of the “good life”.

In this respect, Joe Darger adds that, “We are law abiding citizens in every other way. I am in a felonious relationship and that is a decision that we made and we have to explain” (Sawyer, 2012, p. 3).[7]

Polygamy in America raises some very interesting legal dilemmas because unlike other civil or criminal offenses, polygamists practice it informally. Except for the few cases cited above, it has been extremely difficult for law enforcement officers to follow polygamists because state laws do not recognize this marriage.

It is therefore difficult to prove that polygamists are indeed married to multiple partners. Without such real evidence, polygamists are only punishable under the laws of adultery and unlawful cohabitation (Sawyer, 2012).[8] Nonetheless, the government rarely enforces the laws against prohibited cohabitation in America because its enforcement would criminalize other forms of cohabitations, which are socially accepted.

In fact, the mere fact that polygamous relationships resemble other socially sanctioned arrangements poses the question why it the government considers polygamous unions to be unlawful, while other socially sanctioned arrangements (involving unlawful cohabitation) are accepted by the society. In this respect, polygamy is often difficult to prosecute in America.

The 1953 Arizona raid into a polygamous community in Arizona is an example of the difficulties witnessed in practicing polygamy. Except for four people who were confirmed to be strangers (to the community), everybody in the community was imprisoned and the children taken under the custody of the state. Later, a judge termed this raid unlawful and the government returned all the community inhabitants to their initial residences.

Sawyer (2012)[9] estimates that the community now includes about 10,000 inhabitants. The legal and social defenses that are applicable to polygamy creates several dilemmas when comprehending how the state and the society view polygamy.

One argument that has been advanced by proponents of the practice lie in the acceptability of other “illegal unions” like same-sex marriages, while polygamy has remained unlawful for centuries (Sawyer, 2012).[10] Certainly, same sex marriages have been legalized in many American states (California, Iowa, Massachusetts, and New York among others), while polygamy has remained illegal in these states.

In fact, more states in America are considering legalizing same sex marriages (like Washington and Maryland). This inconsistency poses the question regarding how polygamy differs with other socially “unacceptable” practices that the society considered illegal and even unnatural. Recently, America’s president, Barrack Obama, supported same sex marriages. However, there has been minimal political interest in polygamy.

Indeed, despite the continual changes in societal perceptions and attitudes about various unions between men and women, there have been no significant legal changes to the legislative provisions characterizing polygamy.

This thesis seeks to understand why polygamy has always remained at the margin of social advancements in the American society, and as will be seen in the research aims of this chapter, this chapter provides an explanation regarding whether the prohibition of polygamy infringes on individual liberties and freedoms, or not. However, this chapter first indulges into the complications of America’s most known polygamists – the Mormons.

1.2 Mormon History

The history of the Mormon Church traces to the 19th century (when Mormonism started). At its beginning, the Mormon Church started as a small group of followers. Joseph Smith (who many people accredit to be the first prophet of the church) first started the Mormon faith. Sometimes, people know the Mormon Church as the Church of Jesus Christ of Latter-day Saints (Walker, 2001).[11] This faith grew in western New York (where many scholars believe that the church’s founder, Joseph Smith, grew).

When revelations arose that Smith differed with many conventional Christian ideologies, the society persecuted many Mormon followers. This development led them to move to Ohio. Afterwards, historians reported that they moved into Missouri, but subsequent developments saw them move to Illinois (Nauvoo), where they developed a large Mormon establishment.

During the 1800s, there was growing public resentment towards the Mormons (because they practiced polygamy) (Smith, 1903).[12] From this resentment, public outrage saw the assassination of the Church’s founder. This assassination encouraged many Mormons to flee from their homelands into Utah.

The continuing controversy that the Mormon faith has attracted greatly characterizes the history and growth of Mormonism. The controversial teachings that were taught within the Mormon Church (and which contradicted conventional Christian doctrines) define the center of these controversies. The growth of the church traces to a period of the second revival where there was a widespread proliferation of religious faiths – a period that is sometimes known as the second awakening (Walker & Whittaker, 2001).[13]

Some people saw this movement as a revolt against the extremist secular influence in the Christian faith (Walker & Whittaker, 2001).[14] During the second awakening, visions and revelations were intensely characteristic of the religious faith.

In fact, historians say that in 1801, numerous meetings took place (where people exchanged gifts in the form of visions and revelations from God) (Walker & Whittaker, 2001).[15] However, fundamental Christian believers (who understood that visions and revelations ended with the death of the apostles) did not welcome such events.

The restoration movement is an important part of the early Mormon history because two religious fundamentalists named Barton Stone and Alexander Campbell claimed that the restoration of the true Christian faith had to occur by restoring some of the most fundamental teachings of the New Testament (Walker & Whittaker, 2001).[16] In detail, Stone and Campbell believed that the Christian faith split because people were drifting away from the fundamental teachings of the New Testament.

This belief led to the birth of the restoration movement. Within the restoration movement, there was a strong opposition of secularism. The Mormons believed that there should be only one church – the Church of Christ (Walker & Whittaker, 2001).[17] Mormons do not openly distinguish the restoration movement from the Protestant movement but Givens (2007)[18] reports that this movement helped Smith to venture into religious fundamentalism.

Smith’s vision of the Mormon Church centered on restoring the Christian faith, which he thought was fading away after the death of the Apostles. In fact, Bushman & Bushman (2001)[19] explain that at first, Smith the proliferation of many Christian faiths disturbed Smith.

He therefore went into the mountains and prayed to God to show him which Christian faith he should follow. It is from this prayer that God revealed himself to him and told him that he had the choice of joining whichever faith he wanted (Bushman & Bushman, 2001).[20]

When Smith was 17 years, Givens (2007)[21] documents that an angel (named Moroni) revealed himself to Smith and told him that God chose him to translate the Mormon bible (written in the 4th century). Smith wrote this book and hid it in his residence in New York. In 1830, this translation became the Book of the Mormons.

After the publication of the book, Smith received another revelation from John the Baptist who ordained him with the task of restoring the “true” church (Givens, 2007).[22] Many scholars perceive the book of Mormons to be the comprehensive narration of the journey of Middle-East immigrants into America (Givens, 2007).[23]

Most of the literature contained in the book captures events that occurred from 600 B.C to 400 A.D (Bushman & Bushman, 2001).[24]

The book also contains a detailed account of the Nephite journey (a group of Jews who fled Jerusalem into America), and how the people from Babel perished in Central America because of their immoral behaviors (Bushman & Bushman, 2001).[25]

Many Mormon beliefs and practices developed from visions and prophecies (communicated from God to the believers, through the prophets). For example, the Mormon Church adopted polygamy as a revelation from God to Smith. Different sects currently define the Mormon Faith, but the most common faction is the Church of Jesus Christ of Latter Day Saints and the Community of Christ (Bushman & Bushman, 2001).[26]

The Church of Jesus Christ of Latter-day Saints is the biggest sect of the Mormon faith because its membership stretches into millions of believers worldwide. The church’s membership is a presidential system where the first Apostle takes over the church’s leadership (upon the death of a prophet). Currently, Thomas Monson is the sect’s leader (Bushman & Bushman, 2001).[27] Worldwide, people know this church for its humanitarian ventures.

Most of Joseph Smith’s descendants are not in the Church of Jesus Christ of Latter-day Saints. Their presence is more dominant in the Community of Christ Church. However, descendants of Joseph Smith do not lead the church because Stephen Veazy (who has no open relationship with the Joseph Smith’s family) does so (Bushman & Bushman, 2001).[28]

Besides the two sects mentioned above, there are many more denominations of the Mormon Church, which exist today. Most of these churches practice polygamy.

The split of the Mormon Church stemmed from the death of Joseph Smith. Smith’s widow led one faction while Brigham Young (from the Community of Christ Church) led the other (Arrington & Bitton, 1992).[29] The Community of Christ church is the predominant Mormon Church, which settled in Utah (Walker & Whittaker, 2001).[30]

hile in Utah, the Mormon Church grew, but its congregation was often in conflict with the government because they practiced polygamy. This clash occurred when the government passed anti-polygamy laws. Indeed, the US federal government banned the practice in 1862 (Alexandre, 2007).[31]

In the same year, the federal government passed the Morill act, which officially banned polygamy in America. Subsequently, the government passed the Edmunds Act of 1882, and anyone found to be practicing polygamy committed a felony in the same regard (Alexandre, 2007).[32] The Edmunds tracker of 1887 was the strongest legislation that targeted polygamy in America because it unified the federal government’s position on polygamy. Later, debates about polygamy became part of social and legal conversations.

Since many Mormons refused to abandon polygamy, the federal government always clashed with the state of Utah regarding the practice. In the mid twenties, the government conducted many raids in communities that practiced polygamy. The most notable raid was the 1953 Short Creek Raid that happened in Arizona.

Observers perceive this raid as the biggest government raid on polygamists in the US. The government arrested about 400 Mormons in the raid (Walker, 2001).[33] Most of those arrested were parents who lost custody of their children in the process.

Those that did not lose custody of their children had to wait two years before they got their children back. From such raids, the American public changed their societal perception about polygamy. However, some Mormons continue the practice to date. Salt Lake City is now home to many Mormons and many populations of the Mormon faith occupy western parts of the US.

The Mormon population also has a global presence in certain parts of Europe, Asia, and South America (Walker, 2001).[34] Since 1979 (to date), the complete Mormon population is estimated to have grown from four million to six million followers (Walker, 2001).[35]

1.3 Fundamentalist Mormon Polygamy

Fundamental Mormons believe that certain aspects of their religious beliefs need to be upheld always (Givens, 2007).[36] These fundamentalists (mainly) aim to uphold some of the most fundamental religious teachings, which the old Mormon Church practiced in the 19th century. Brigham Young (the earliest president of the Church of Jesus Christ of Latter-day Saints) practiced most of these beliefs and practices.

The main difference between the beliefs and practices of fundamentalist Mormons and other Mormons is their conviction to uphold fundamental teachings and practices (which mainstream Mormons do not respect) (Givens, 2007).[37] The most notable religious practice of fundamental Mormons is polygamy.

Another fundamental principle that Mormon believers uphold is the principle of the united order (which supports specific aspects of communism) (Givens, 2007).[38] However, regarding polygamy, fundamental Mormons believe that the LDS church wrongly abandoned polygamy. They also propose that the LDS church should not have banned polygamy (merely) because the church wanted to resist disapproval from the American society.

Indeed, the LDS church abandoned polygamy in the 1890s when the government and the American society condemned the practice (Gibson, 2010).[39] However, Gibson (2010)[40] reports that this practice continued in certain sections of the Mormon population (especially in Northern Mexico).

The abandonment of polygamy by the LDS was in line with a religious manifesto prohibiting polygamy. However, fundamental Mormons believe that this manifesto was incomparable to the revelations that Joseph Smith had about polygamy. In their view, Smith’s revelation about polygamy (that it was okay to practice polygamy) was more substantial, compared to the manifesto to stop the practice.

Fundamental Mormons believe that God restored polygamy back on earth through the revelations made by Joseph Smith. From the power given to him by God to restore polygamy, Smith had the right to approve all polygamous marriages. Some literatures document that the Mormon Church quickly adopted polygamy after its beginning. Walker (2001)[41] also says that Smith started experimenting with polygamy very early in the history of the Mormon faith (1891).

Before Smith informed the public about the need to practice polygamy, a decade-wide gap has given many critics the right to question why he started practicing polygamy as a personal “thing” before he encouraged other followers to do the same. Critics paint an interesting scenario where one of Smith’s wives caught him with another woman and in his defense; he used polygamy as a justification for sleeping with multiple women (Walker, 2001).[42]

The credibility of this argument is contentious. The number of women who were married to Smith is unconfirmed, but experts note that he had more than seven wives (Bushman & Bushman, 2001).[43] By 1843, many of the Mormon Church elders were practicing polygamy, but it took nine years for the church to encourage this practice among its followers (Walker, 2001).[44]

It is from this point that Smith and other church elders publicly encouraged the practice. However, Smith had the authority to ordain such marriages. Therefore, polygamous marriages that the prophet did not endorse were invalid. After the death of Joseph Smith, successive prophets gained the power to arrange polygamous marriages.

To begin with, there was widespread protest against polygamy within the Mormon Church, but Joseph Smith convinced his followers that it was acceptable to practice polygamy (since it constituted an important part of their religious faith) (Alexandre, 2007).[45]

The main motivation for their support for polygamy is the Mormon belief that the society should accept polygamy because Smith had a revelation that it was the best way to replenish the earth and continue life (Anderson, 2010).[46] Polygamy was however not the only distinguishing feature for the Mormon Church. This practice started at a time of great social experimentation in the US society (Walker, 2001).[47]

Certain Mormon philosophies like gathering, law of consecration, and blood atonement (where the society considered some sins so evil and only the blood of the sinner could remedy such sins) also started at the same time (Walker, 2001).[48]

Some Mormons still follow some of these practices today. Many of these fundamental religious principles contravened conventional societal beliefs (and that is why the Mormon Church clashed with the American society).

Smith’s death and the criminalization of polygamy by the American government better explains the clash between the Mormon Church and the society. Kincaid (2003)[49] also attaches this argument to the fight between the state of Utah and the US government.

Fundamental Mormons believed that when Utah got its independence, it had the authority to approve marriages within the state (and not the federal government) (Bushman & Bushman, 2001).[50]

However, certain researchers say that the federal government required Utah to introduce an anti-polygamy clause in its state laws to prohibit polygamy (Walker, 2001).[51] The Edmunds act also requires citizens to take an oath not to practice polygamy before they can vote.

The provision within the LDS leadership (that polygamy should be abandoned) is enforced to date and it supports the US government’s commitment to criminalize polygamy (Kincaid, 2003).[52]

It is however reported that even though the LDS leadership does not support polygamy, a few members still believe in the practice (but do not practice it). Today, the LDS church does not forgive polygamy and if a member of the church practices it, the church excommunicates those (Givens, 2007).[53]

The lack of commitment to ordain polygamy in the Mormon Church’s leadership frustrated the few Mormon fundamentalists who strongly believed in the practice. From this frustration, they invoked a 1920 doctrine (introduced by Lorin Woolley) which accepted polygamy (Walker, 2001).[54]

The Woolley doctrine stipulated that the power to endorse polygamous marriages stemmed from religious authorities, which were not part of the Church of Jesus Christ of Latter-day Saints (Walker, 2001).[55]

This doctrine recognized external centers of powers (such as high priests and apostles who were friends of the church) to ordain polygamous marriages. These centers of powers ordained polygamous marriages and gave an opportunity for fundamental Mormons to continue the practice. Now, the state of Utah refrains from prosecuting people practicing polygamy, but it is against people who marry off underage girls (Walker, 2001).[56]

In fact, among the greatest challenge for the acceptance of polygamy in America is the accusation that polygamy allows for the marriage of underage girls to older men. This practice has made polygamy lose favor among Americans because some people see it as sexual slavery and child exploitation (Jacobson, 2011).[57]

It is from such acts that well-known Mormon leaders such as Jeff Warren were imprisoned. The marriage of underage girls has created serious legal ammunition to attack polygamy in America. However, the main base for prosecuting Mormons and their beliefs is only limited to the extent that their practices do not affect other state laws (besides bigamy).

According to recent journalistic investigations into polygamy in America (such as National Geographic’s investigation into polygamy in America), there is still evidence showing that some Mormons believe polygamy is part of their religious right. An excerpt from a journalistic investigation into polygamy in America documented a polygamous woman (from the Mormon faith) saying, “Our whole life’s goal and aim is to make it to the celestial kingdom, and become gods and goddesses in our own right, and have our own children” (Anderson, 2010, p. 2).[58]

Through such beliefs, the sect followers consider polygamy their right for entering the celestial kingdom. The legal obstacles existing in the American justice system only stand to prevent them from attaining their religious goals.

Even with the criminalization of polygamy in America, the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) still practices polygamy. This group practice polygamy as part of their religious right (the way their prophet practiced it in the 19th century).

According to Bozzuti (2004)[59], the number of followers practicing polygamy in the US is about 30,000, but compared to the number of Mormons living in America, this population is only a fragment of the population practicing polygamy.

There is therefore a common perception that Mormons may continue to practice polygamy if there is no meaningful solution to the prevailing issues (legal, gender or otherwise) surrounding the practice (Milton, 2009).[60]

However, Zeitzen (2008)[61] contends that polygamy among the Mormons (in its modern form) faces many social, cultural, economic and political challenges that threaten its future existence. Indeed, even within Mormon population, there is a growing fear that, future Mormons may not continue the practice (Jacobson, 2011).[62]

Today, the biggest fundamental Mormon organization is the Fundamental Church of Jesus Christ of Latter-day Saints. The second biggest fundamental Mormon group is the Apostolic United Brethren, which is mainly located in Northern Mexico and other parts of western America (Givens, 2007).[63]

Other fundamental Mormon groups include the Blackmore Community, Latter-day Church of Christ, the Righteous Branch of the Church of Jesus Christ of Latter-day Saints, True and Loving Church of Jesus Christ of Saints of the last days, Centennial Park Group, Church of Jesus Christ of Latter-day Saints and the Kingdom of God, and the Independent Mormon Fundamentalists (Walker, 2001).[64]

Theoretically, there is no center of power for fundamental Mormons. Most fundamental Mormons practice fundamental religious practices according to their understanding. The fundamental Mormon population lives in disintegrated sects across most western parts of America (and some parts of Canada).

Statistics that have tried to estimate the number of fundamental Mormons in America vary, but the highest estimate of Mormon fundamentalists in America is 60,000 people (Walker, 2001).[65] Analysts also estimate that about half of this population lives in polygamous relationships (Walker, 2001).[66]

CHAPTER TWO

2.0 Changes in Societal Views over Time

Past and present views of polygamy in America influence the legal complexities surrounding plural marriages in America. This chapter focuses on highlighting the differences between the past and present views of polygamy in America by classifying these views into “old” and “new” society’s perception about polygamy. These views also present significant similarities between the old and new societal views about polygamy.

This paper shows that on one hand, the influence of religion, politics, and the conception of American liberties define the old society view about polygamy and on the other hand, comparisons between same-sex marriages and polygamy characterize the new society view about polygamy. Both views however merge through their dependency on religious and gender issues.

Therefore, this chapter shows that religion and gender issues have been pivotal in the understanding of the new and old societal views about polygamy. The main point of departure between both views however stems from the changing perceptions of marital relationships in the American society. These insights emerge through the understanding of the old and new societal views about polygamy

2.1 Old Society View about Polygamy

Polygamy has always been an important issue in America not only because of its legal issues but also because of its social challenges. In the context of this chapter, the “old” society’s view about polygamy is America’s view towards polygamy in the 1800s and 1900s. Since Christianity is the dominant religion in America, religion influenced most arguments surrounding polygamy (Gordon, 2002).[67]

In addition, many American customary laws and philosophical views stemmed from the country’s religious views (from the same religious ideals, Mormons have justified their freedom to practice polygamy).

Unlike other sexual practices (like homosexuality or lesbianism), religion has been the main motivation for the practice of polygamy in America. For example, there is little evidence in Christianity about the legality or acceptability of homosexuality, but there are many examples showing how religious people practiced polygamy.

Several religious scholars have also affirmed this view by drawing the link between polygamy in America and biblical examples of polygamy (Hanegraaff, 2007).[68]

Interestingly, even though America is largely a Christian society (majority Christians are Protestants), religion failed to gain acceptance as a justifiable excuse for polygamy. Some scholars consider America’s negative view towards polygamy as hypocritical because Christianity does not openly condemn polygamy (Hanegraaff, 2007).[69]

The failure of Christianity to accommodate polygamy in the US contradicts the contribution that other religions in the world have had in promoting polygamous marriages. For example, the Islamic faith allows polygamy because it is acceptable for men to marry up to four wives (so long as they are capable of taking care of them).

Islam’s acceptance of polygamy is also globally accepted. Consequently, many Islamic states recognize polygamy as a religious right (in fact, some Muslims in America practice polygamy on this ground) (Bilaal, 2005).[70]

Comparatively, Americans did not respect polygamy as a religious practice, even though some biblical examples sanction it. Consequently, in the 1800s, the conception of polygamy as an immoral act drew its comparisons with adultery. Immorality was associated with polygamy because this union introduced “other women” into a union that should ideally include one woman.

Since the church was the “moral center” of the society, the infiltration of polygamy into the church was condemned, (this is one reason Mormons received a lot of hostility regarding their support for polygamy) (Gordon, 2002).[71]

Undoubtedly, religion shaped the attitudes of many Americans towards polygamy but cultural influences also had a significant impact in the way some American communities viewed polygamy.

The cultural and religious influences of polygamy still spread today but because of the state’s influence in shaping America’s view towards polygamy, culture and religion have had a lesser impact on people’s attitudes and views regarding polygamy. The conflict between culture, religion and the state shifted America’s focus towards polygamy in the mid 19th century (when Mormons publicly declared their support for polygamy).

This public support for polygamy quickly made Mormons “the title of polygamy” in America. Mormons criticized Americans for surrendering to the wishes of the government to dictate their religious practices. This protest made them rebellious to the government (Gordon, 2002).[72]

Culture, religion, and the state however interact at new levels because they define the values, principles, laws, beliefs, and the ethics of the society. For example, historians have investigated the relationship between the state and the church (religion) by stating that both factors share a changing and evolving relationship. Religion also forms part of culture and culture informs governance. This way, albeit culture, religion, and the state may share a conflicting relationship, they still share an interdependent relationship.

Based on the condemnation and killings of polygamous Mormons, in the past, people were less tolerant about religious diversity and polygamy. In fact, Mormons fled several places because of the hostility Americans had towards their religious beliefs and values (and more specifically, their support for polygamy) (Hardy, 1992).[73]

Many Americans believed in the preserve of morality and the sanctity of marriage. Moreover, many religious groups believed that God intended men to have only one woman (as the biblical story of Adam and Eve contend) (Hanegraaff, 2007).[74]

Therefore, people considered it immoral and lustful for men to have more than one wife. Some Americans even believed that polygamous people were spoiling the Christian faith by supporting polygamy.

America’s negative attitudes towards polygamy became a dominant debate in America to the extent that it shaped the political landscape in the 20th century. For example, the 1999 Utah senator, David Zolman, lost his political career by openly condemning the US government for sanctioning the 1950 Arizona raid into polygamous communities (Llewellyn, 2004).[75]

Furthermore, when Abraham Lincoln signed the Morill anti-bigamy law in 1862, he weighed his options against the rebellion in the South and the implications of banning polygamy in America (Zeitzen, 2008).[76] At the time, Americans pushed polygamy to the limits of barbaric acts like slavery (in fact, slavery and polygamy were considered of similar level) (Zeitzen, 2008).[77]

However, the public condemnation of polygamy did not represent the attitudes held by Americans from Utah and Arizona towards polygamy. In fact, when most Americans condemned polygamists in the country, most inhabitants of Arizona and Utah expressed sympathy, apathy, outrage and embarrassment about the government’s open hostility towards polygamists (Hardy, 1992).[78]

These sympathetic views towards polygamy in Utah and Arizona have been a tricky issue for politicians in both states because Mormon leaders controlled a lot of political influence in some of their strong places.

Therefore, before any politician could openly condemn polygamy, they had to see the public perception of their utterances and understand how such influences could affect their political careers. Many politicians were therefore careful not to embarrass the Mormon Church, its leaders or any of its members.

The uniqueness of Utah and Arizona’s view towards polygamy represents the informal manner the state of Utah treated polygamy issues. Evidence of this informal treatment of polygamy exists today. For example, when a politician in Utah or Arizona comes from a family of polygamous parents, it is no “big deal.”

Some researchers have reported that about a third or even half of all Utah and Arizona citizens trace their ancestry to polygamous families (many of such inhabitants are either second, third, or fourth generation of polygamous ancestors) (Hardy, 1992).[79] Some critics say generations of polygamous families consist of up to two-thirds of Utah and Arizona populations (Hardy, 1992).[80]

Some legislators in these states also trace their ancestry to respectable polygamists in America. For example, Utah governor Mike Leavitt (who was confirmed the administrator of the Environmental Protection Agency in 2003) traces his ancestry to plural families in Utah.

The negative attitudes towards polygamy in other parts of America however forced many polygamists in Utah and Arizona to abandon the practice. Nonetheless, the few Mormons who continue the practice prosper in secrecy. Partly, the isolation and secrecy that characterized the practice of polygamy among Mormons is the reason oppression and abuse moved slowly into the faith.

Many people believe that if America accepted polygamy, there would be little or no abuse in the Mormon faith (Hardy, 1992).[81] However, since polygamists practice this form of marriage in secrecy, it is difficult to control this union or even know the extent of abuse in it. Many researchers affirm this view but they cite the fear of revenge and criticism as the main difficulty to the acceptance of polygamy in America (Jacobson, 2011).[82]

Compared to other societies that accept polygamy, Americans were very careful about the socioeconomic implications of accepting polygamy. More specifically, Americans were more wary of the social inequalities that polygamy introduced in the American society.

Researchers have made comparisons between America’s hostility towards polygamy and the high popularity of polygamy in developing countries. They cite differences in economic status as the main motivators for the acceptance of polygamy in developing countries (Jacobson, 2011).[83]

In other words, many women who accept polygamous unions in developing countries have a low socioeconomic status and accept polygamy for the conveniences it offers. Research also shows societies that have few successful men provide the main fertile grounds for the practice of polygamy. In developing countries, such men attract many women because they provide a ladder for women to reach economic prosperity.

Today, in the American society, women are more empowered and do not necessarily need men for economic prosperity. In this context, polygamy had a very little chance of succeeding in the American society. Moreover, many Americans perceive the reliance on men for economic prosperity as a primitive and barbaric culture (Jacobson, 2011).[84]

This condemnation largely informs the negative attitudes that have always characterized gender issues in polygamy. Today and in the past, many gender organizations saw the acceptance of polygamy as a step back from the liberalization of women in the society. Therefore, along with women’s groups, many Americans did not support polygamy because it introduced female subordination and threatened the existence of the conventional marriage structure where a man cohabits with one woman.

Therefore, many Americans believed that polygamy promoted gender inequality by subordinating the woman (at least, economically). Comparatively, the majority view of marriage promoted the belief that men and women are equal in marital relationships. Feminist groups also promoted this view by suggesting that polygamy promoted gender inequality, thereby threatening the conventional wisdom of marriage where men and women were equal.

Serious domestic challenges like the welfare of children in polygamous families, sex, family size, and the fulfillment of women in polygamous families arose. For example, there was a common perception among Americans that polygamy did not provide the best environment for children to grow because polygamous parents were busy with how the family functions as opposed to the welfare of their children (Gallagher, 2006).[85]

Moreover, there were other concerns centering on the role of polygamy in facilitating a population explosion in the country. Many polygamous families reached large families because a man could have up to 30 children (or even more). Such large families were common in the Mormon community.

In fact, some men in the Mormon Church had more than 20 wives (Gordon, 2002).[86] Americans saw such families to be ridiculous and impractical. More importantly, Americans questioned the capability of polygamous men to provide for their large families. This skepticism also complemented earlier fears about the well-being of children in such families. When the 1953 Arizona raid occurred, the government assigned shelters to children who grew in the polygamous communities.

This action mirrored the society’s concern about the well-being of children in polygamous communities. Recent research has tried to explore the potential effect of polygamous unions on children’s well-being and it affirms positive outcomes and social progression for children brought up in nuclear families (compared to their counterparts in polygamous families) (Gallagher, 2006).[87] Such concerns shaped America’s disapproval of polygamous marriages.

Polygamous unions also introduced new questions regarding the ability of men to share their love among many women (many Americans considered sharing a man’s love among many women to be impractical) (Kilbride, 2012).[88]

For example, it was unclear how a man could share his love among 18 women and still keep them emotionally satisfied. Since most Americans felt dissatisfied with a man’s ability to meet (sufficiently) the emotional needs of women in polygamous marriages, the society considered women as victims of polygamous unions.

Therefore, women always felt short-changed in polygamous unions (this is another reason women’s groups and gender organizations throughout America opposed polygamy). Indeed, many feminist groups suggested that it was impossible for men to provide women with the proper emotional support they needed in marriage, if they lived in a polygamous union. The main argument flouted here was that polygamy brought new competition for material and emotional access because many women had to compete for access to a shared person (husband).

The ability of polygamy to promote incest also informed America’s disapproval of polygamy. Concisely, within the Mormon faith, there were increased reports of incest (where the cousins married cousins, sisters married brothers and even some fathers married their daughters) (Scheb, 2010).[89]

Incidents of children born without fingers, children born with complicated diseases and similar cases also emerged because of increased incidents of incest. Since polygamy accommodated incest, the family unit (in its conventional form) has been under threat from polygamy. From this basis, the society found a rational reason to discourage the practice.

Many social, economic, and political issues inform the “old” society view about polygamy. Most of these issues led to the criminalization of polygamy in America. Due to its impractical nature, polygamy was a violation of American values, Christianity, and the foundations of the family unit (in its natural form).

Similarly, these views led Americans to believe polygamy was barbaric. The negative portrayal of polygamy prevailed through most of the 1800s and 1900s. However, new generations of Americans are starting to develop new perspectives of polygamy.

2.2 New Society View about Polygamy

Many Americans are fascinated with polygamy. Indeed, the notion of one man and many women confuse many people because people do not understand how such a union works. The fascination with polygamy is however old because people have always been fascinated with people’s romantic lives.

Sex is one issue that has easily emerged in many debates about polygamy, but as polygamists say, plural marriages are not really about sex. However, an accurate summary of this fact stipulates that polygamy is not just a matter of sex (Kilbride, 2012).[90]

Modern times have emerged a period of new liberties, social freedoms, and unique human values. These developments stem from the social pillars that define the American society. Polygamy creates complex views to the understanding of core American values, which have existed for decades.

The global perception of the US defines America’s commitment to uphold beliefs in the freedom to practice religion, right to privacy, right to association, and the liberty of an individual to pursue their interpretation of true happiness (Kilbride, 2012).[91]

Today, these freedoms and liberties have informed many people’s beliefs regarding polygamy. However, since polygamy raises serious questions regarding the treatment of women and children, many Americans have pulled back and re-evaluated if the principles of freedoms and liberties demand new limits. Such questions have not only existed in America but also other parts of the world.

Based on a broad analysis of America’s current view about polygamy, it is incorrect to say Americans have made great leaps in changing their perception towards polygamy. In fact, the way politicians and the media respond to polygamy issues only a little different from the way they did so in the 1900s.

However, there is a growing acceptance of polygamy today than in the past. This growing acceptability reflects other changes in societal perspectives regarding homosexuality and same-sex marriages. Indeed, the American society is starting to question the basis for criminalizing polygamy, while many states are slowly embracing same-sex marriages (Kilbride, 2012).[92]

Moreover, same sex marriages threaten the conventional view of marriage, where one man and one woman live together, the same way polygamy does. The basis used to criticize polygamy in the past is therefore quickly vanishing (under the acceptability of other forms of marriages). A common argument that supports gay marriage is the notion that same-sex unions exist regardless of the government’s position towards it.

Referring to this view, some Americans are starting to view the similarities between same-sex marriages and polygamy because polygamous families will also exist regardless of the government’s view about it (Kilbride, 2012).[93] To this extent, some Americans are starting to be less critical about polygamous unions.

The coming of new television shows that focus on polygamy highlights the changing societal perspectives regarding polygamy. Sister Wives and Big Love are some of the television shows that highlight America’s changing view towards polygamy (Bennion, 2012).[94] Such shows have attracted a huge audience (regardless of their focus on polygamy – a taboo subject).

Recently, a pro-polygamy website known as propolygamy.com set August 19 as the new “polygamy day” in America (without widespread condemnation). According to the website, the polygamy day celebrates all forms of polygamous unions without any strong religious affiliation or cultural inclination.

American media have also focused a lot on the Mormon faith whenever they highlight issues about polygamy in America; however, other polygamous groups in America receive little focus.

For example, there is minimal focus on Muslim groups practicing polygamy, although polygamy is illegal in the US (in fact, some reports show that more than 50,000 Muslims live in polygamous families in the US) (Bennion, 2012).[95] This high spread of polygamy in non-Mormon households indicate that there is an underground acceptance of polygamy in America, but because of the fear of revenge and open criticism, such people do not express their support for polygamy.

There are many arguments surrounding the spread of polygamy in the Islamic faith but largely, America has shown little focus on such unions. Polygamists use many ways to trick the law and keep polygamy alive in America. For example, it is common for polygamists (both in the Islamic faith and Mormons) to marry one wife (legally) and cohabit with other women (without the legal recognition of “additional wives”).

The additional unions are similar to conventional marriages, except that they are spiritual unions. Some Muslims also have other wives abroad while others live comfortably with their spouses in America (Bilaal, 2005).[96] The society has ignored these developments, even though the law still criminalizes polygamy. The government has similarly had the same attitude.

In fact, except for the 2008 polygamy raid in Texas, there have not been many concrete efforts to attack polygamy in the American justice and political systems after the 1953 Arizona raid. The judiciary has played an instrumental role in boosting the confidence of polygamous Americans to continue with the practice because recent judicial rulings have tried to safeguard the rights of the citizens to live whichever way they want.

For example, the 2003 ruling involving Lawrence v. Texas stipulated that the state should refrain from interfering with the intimate and private lives of Americans (Rimmerman, 2007).[97] This ruling limited the role of the state in defining the choice of relations and partners among American citizens.

Gay activists have used such rulings to advance for freedoms to choose whatever form of private relationships they want (Rimmerman, 2007).[98]

There is therefore a growing perception among Americans that it is unfair to allow gay marriages and criminalize other unions that the society considers as unconventional. Stated differently, the society views polygamy to be an unconventional union, the same way it considers gay marriages as unconventional. In fact, both unions threaten the existence of conventional marriages where one man and one woman live together in matrimonial union.

Therefore, it is interesting to understand why there are some laws that legalize gay marriages in some states, while there is no state that legalizes polygamy. Moreover, some polygamy activists have questioned the moral authority of the government to prohibit plural marriages that do not have any history of abuse or mistreatment. Ideally, such unions are similar to other unions in America, except that there are many wives involved.

Therefore, polygamy activists have questioned if it is enough for the government to consider polygamists as criminals while their unions do not cause abuse or mistreatment (Rimmerman, 2007).[99] For many Americans, this question is a related issue in the society, but it largely questions the justification of the government to criminalize polygamous relationships.

One would expect that civil right organizations would jump to the defense of polygamous families (as the extension of natural justice – to protect the rights of Americans to live whichever life they choose) but this has not been the case. Instead, many civil right activists have been extremely silent about polygamy because there is a double-standard application of justice.

Some people consider the “hands-off” approach of civil organizations in handling polygamy as a tactful move because the acceptance of polygamy is a threat to the legalization of same-sex marriages and similar unions (Rimmerman, 2007).[100]

Arguments that traditionally attacked polygamy have also lost credibility recently because of the societal change of attitude regarding sex and relationships between men and women. In the past, there was a general argument that polygamy was an attack on conventional marriages, but depending on the recent high rates of divorce in the American society, there is a growing perception that marriage is under attack from other social issues as well (and not necessarily polygamy).

For example, there is a growing perception that polygamy is just like any other type marital relationship (say, between one man and one woman, or gay marriages). The growing acceptability of betrayal and serial marriages in the American society highlights this fact because people are having multiple partners out of marriage and the society does not consider it a “big deal” (Bennion, 2012).[101]

Consequently, the number of children born out of marriage is slowly increasing while many Americans are having up to four or more marriages in their lifetimes. These developments come from a change in the societal values and beliefs about marriage and sexuality (but they have also revisited the justification for attacking polygamy in the society).

Many Americans are now starting to question if it is right for the society to accept marriage betrayal, spouse exchange and children born out-of-marriage while still criminalize polygamy. The growing resentment towards criminalizing people who express the willingness to cohabit with other partners (while those that do not express this willingness receive no punishment) informs this argument.

There is therefore a growing belief that polygamy and same-sex marriages are not very different from each other and both unions may have the same fate. American polls, which explored the attitudes of Americans regarding homosexuality showed a growing sense of acceptance for the practice (Bennion, 2012).[102]

Polygamy is also gaining the same acceptance because recent statistics showed that more Americans are warming to the idea of polygamous marriages (after the legalization of same-sex unions). However, it is important to highlight that there have not been many surveys exploring the attitudes and beliefs of Americans towards polygamous marriages.

Only a few researchers have undertaken such surveys for private organizations. Some of these private surveys have reported that about 22% of American respondents question the legal justification of criminalizing polygamy (owing to the ongoing acceptance of same-sex marriages) (Bennion, 2012).[103] Recent estimates also show that about 18.7% of respondents are uncertain regarding their views towards polygamy.

Apart from the legal justifications for criminalizing polygamy, 18% of the respondents questioned the moral justification for criminalizing polygamy (furthermore, more than 14% of the respondents sampled were uncertain about the moral grounds for criminalizing polygamy) (Bennion, 2012).[104]

Since these statistics only represent a sample of American views towards polygamy, researchers estimate that the same statistics may double the views of millions of Americans across the United States.

However, unlike other western nations, decades of hostility towards polygamy inform America’s slow shift to accept polygamy (changes in societal views towards sexuality and marriage have been the main drivers for change). It is therefore going to take a long time before polygamy receives the same acceptance as same-sex marriages do (in some states), but the growing liberal views in the American society (about marital unions) may support a warmer reception for polygamy in the future.

Comprehensively, this chapter shows that the old and new society view about polygamy provides some interesting insights into the factors that led to America’s failure to accept polygamy. The role of religion and gender stand out as the main influencing factors that informed the society’s failure to accept polygamy.

However, since the dominant American view about polygamy still stems from past religious principles regarding marriage, there is a clear transition between the “old” and “new” societal views about polygamy. Indeed, there are many similarities between the old and new society views about polygamy. However, increased societal liberalization and the growing acceptance that every person should pursue his or her version of the “good life” informs the “new” society view about polygamy.

CHAPTER THREE

3.0 Judicial Views about Polygamy

The discussion of Polygamy in America has caused a great judicial debate regarding its legal status. Now, with the changing societal perceptions regarding same-sex marriages, many people question the illegality of polygamy (Irwi, 2004).[105] This chapter investigates the judicial background informing the illegality of polygamy and the circumstances that led to its prohibition, throughout all 50 states of America.

To achieve this objective, this chapter proposes the contribution of the Utah wars, Morill anti-bigamy laws, Edmund Act, Edmund-tucker act, and Reynold vs. United States case as the main factors characterizing the judicial background of polygamy in America. Furthermore, this chapter shows the legal position of American laws towards polygamy, and the contradiction that these laws have with religious freedoms and individual liberties (Gallagher, 2006, p. 30).[106]

3.1 Judicial Background of Polygamy in America

3.1.1 Utah War of 1857 – 1858

The Utah war was an armed conflict between the Mormon Church and the U.S government. This war lasted one year, and included civilian casualties from both sides of the divide. Even though the war was protracted, it ended through a negotiated agreement between the government and the Mormon Church (Hafen, 1958).[107]

The then president, James Buchanan, started this conflict by sending American troops to Mormon territories to control a rebellion in the state of Utah (against the government’s position to ban polygamy) (Hafen, 1958).[108]

However, the war turned out to be a mistake by the Federal government, because it gave the Mormons a renewed drive to practice polygamy, at least without any judicial interference, or any interference from the Federal government.

This happened because the government was widely criticized for its attack on Utah, especially because they had not properly ascertained accusations that the state was rebelling against the government (Danver, 2011, p. 383).[109]

Observers also criticized Buchanan for failing to notify Utah’s governor about the intention of the Federal government to attack the citizens of Utah. These criticisms prompted the government to leave the Mormons alone. Indeed, as will be seen from the Morill Anti-bigamy law, the Utah wars of 1857 and 1858 gave Utah a renewed judicial will to practice polygamy.

3.1.2 Morill Anti-Bigamy Act

President Abraham Lincoln signed the Morill Anti-bigamy Act after the Utah wars of 1857 and 1858 (Gallagher, 2006).[110] Here, it is critical to note that the Mormon debate, and the willingness of prospective presidents to criminalize polygamy, characterized the American presidential elections of the mid and late 1800s.

Lincoln rose to power on this promise. Indeed, the failure of President Buchanan to introduce a lasting solution to polygamy gave the new president, Abraham Lincoln, the opportunity to find a lasting solution (legally) to polygamy in America. His remedy was the Morill Anti-bigamy Act.

However, since the failure of the Utah wars gave the Mormons a fresh will to fight any attempts (legally) at constraining their religious right to practice polygamy, President Lincoln willingly failed to enforce anti-polygamy laws in Utah (Gallagher, 2006).[111] The lack of law enforcement was a tactical move by Abraham Lincoln to exempt Utah from abiding by anti-polygamy laws, in exchange for Utah’s loyalty to the Federal government during the American civil war.

Consequently, the American commanding officer of the Federal government received instructions to refrain from confronting Mormons regarding their practice of polygamy (even though the Morill law was in force) (Gregory, 2011).[112] From the government’s unwillingness to enforce (fully) anti-polygamy laws, it is easy to see how the Utah war affected subsequent applications of anti-polygamy laws in America.

Nonetheless, Lincoln signed the Morill act into law in 1862 to provide a judicial background for the enforcement of anti-polygamy laws in America. Through the Morill law, the government intended to control the spread of polygamy in the state of Utah. However, the Morrill anti-bigamy law experienced subsequent modifications when the Edmund Act came into force in 1882.

3.1.3 Edmund Act

Edmund act (also known as the Edmund’s anti-polygamy Act) sought to make any acts of polygamy in America a felony against the Federal government (Norgren, 2006).[113] This law also criminalized bigamy and unlawful cohabitation between men and women as a misdemeanor against the laws of America.

This second provision intended to overcome the legal hurdle against the implementation of the Morill act, which experienced challenges from the burden of proving that a polygamous marriage had actually occurred.

Indeed, most polygamous marriages occurred secretively and without any legal document to show its existence. The execution of this law occurred hurriedly as a reaction to the perceived immorality that polygamy introduced to the American society (Norgren, 2006).[114]

The Edmund act not only reinforced the Morill Act, but also introduced firm penalties to anybody found practicing polygamy (when convicted, offenders would lose their right to vote and their right to run for political office).

The main challenge affecting the applicability of this law stemmed from its contradiction with the ex post facto law, which sought to protect the right of polygamists who practiced polygamy before the act came into force (Arrington, 1992).[115]

However, in a Supreme Court ruling in the Murphy vs. Ramsey case of 1885, the court ruled that the law punished polygamists for practicing polygamy after the enforcement of the anti-polygamy law, and not for their practice of polygamy before the applicability of the law. Therefore, the state penalized the continued wrongful cohabitation of polygamous couples after the law came into force (Arrington, 1992).[116]

The government enforced the Edmund Act indiscriminately because it prosecuted people not only for practicing polygamy, but also for subscribing to polygamous beliefs of the Mormon Church. In fact, the enforcement of the Edmund Act was so firm that all elected officers in the state (Utah) left office, so people could check them for their stand on polygamy, before they resumed office. Several prosecutions occurred under the Edmund Act.

In fact, the government estimates that it prosecuted more than 1,300 men under this act (Arrington, 1992).[117] Most victims were polygamous men, because the society perceived women as victims of this practice. However, the government arrested and detained polygamous women who refused to testify against their husbands.

3.1.4 Edmund–Tucker Act

The government introduced the Edmund-Tucker Act in 1887 to respond to a judicial dispute between the Mormon Church and the US federal government (concerning the practice of polygamy within the Mormon Church) (Norgren, 2006).[118] Congressman Tucker and Senator Edmund introduced the act.

Both sponsors proposed that the government should impose a penalty of $500 to $800 on anybody found to be practicing polygamy (Norgren, 2006).[119] Both sponsors also criticized the Mormon Church for fostering polygamy in America as a religious practice.

From this statement, the Edmund-Tucker Act gave the federal government a reason to seize the assets of the LDS church (worth over $50,000) (Arrington, 1992).[120] The government later assigned these assets for use in public schools around Utah. U.S marshals and their deputies implemented this law.

According to the provisions of the Edmund act, prospective voters and public officials had to denounce polygamy. Moreover, the act required prospective voters, jurors, and public officials take an oath against polygamy before they continued their public service duties (Arrington, 1992).[121]

The Edmund-Tucker act also cancelled any laws allowing children born from polygamous unions to inherit property (Arrington, 1992).[122] Finally, the act also required all civil unions to have a certificate, so that the prosecution of polygamous unions eased. This law changed the spousal privilege act to eliminate the protection of polygamous wives from testifying against their husbands.

To improve the enforcement of anti-polygamy laws, the Edmund-Tucker act paved the way for the appointment of federal judges to hear polygamy cases, instead of local judges (who were sympathetic to polygamists). This law led to the abolishment of the office of territorial superintendent (in the education system) to pave the way for a federally funded office that controlled school activities within Mormon strongholds.

This move aimed at having an accurate assessment of the number of Mormon school going children (Norgren, 2006).[123] The government repealed the Edmund-Tucker act in late 1978.

3.1.4.1 Reynold vs. United States

A fundamentalist Mormon (George Reynolds) filed The Reynold vs. United States case in 1878 (Johnson, 1948).[124] Reynold claimed that the state should not prosecute him for practicing bigamy because it was his religious right to marry multiple partners.

He also claimed that the testimony of one of his wife could not be admissible in court because it was under another indictment. The state had earlier arrested him for marrying a second wife, Amelia Jane Scofield, while he was already married to another woman (Mary Ann) (Johnson, 1948).[125]

This case introduced a special argument in the American justice system, because it questioned the government’s commitment to protect the religious rights and freedoms of the American people. The US Supreme Court however, ruled that, Reynold’s religious right was not a defense against the state’s law that criminalized polygamy.

A background of the acknowledgement that the federal government could not introduce a new law that contravened the first amendment informed this ruling. However, the court also said that anti-bigamy laws did not classify under laws that prohibited the first amendment to the American Constitution, or the freedom to exercise religious practices.

The court used a letter from Thomas Jefferson to justify its ruling regarding the existence of a clear distinction between religious beliefs and practices that stem from such beliefs (Johnson, 1948).[126] The Court also ruled that religious beliefs were between man and God; therefore, the court could not intervene in such agreements.

However, actions arising from such beliefs (polygamy) were under the court’s jurisdiction, because it involved the relationship between two or more people. The court therefore believed that it had the jurisdiction over actions, and not the opinions held by religious people (Johnson, 1948). [127]

It should however, be understood that at the time of the ruling, fundamental Mormons believed that the growing trend by the federal government to pass laws prohibiting polygamy was a legal interference against the first amendment to the American Constitution, which gave them the right to practice their religious rights.

Because most Mormons believed so, they freely chose to ignore the Morill anti-bigamy act that criminalized their polygamous practices. Even as the Mormons felt victimized by the state, the government was still exploring ways of strengthening the already existing laws to criminalize bigamy in America.

Therefore, Reynold’s petition was untimely, because the government was strengthening its commitment to criminalize all forms of polygamy. From this background, the court indicted Reynold for bigamy and sentenced him to two years imprisonment, with a fine of $500, as stipulated by the law (Johnson, 1948).[128] This ruling stood as a precedent for the criminalization of polygamy in America.

3.2 Legal Position towards Fundamental Mormon Polygamy

The legal position of the U.S federal government towards polygamy has been unfavorable to Mormons. Since the signing of the Morill Anti-bigamy law, the U.S federal government has been unforgivable in criminalizing polygamy, and all its forms. The subsequent signing of the Edmund Act, and the Edmund-Tucker Act, supported this commitment.

The presence of these laws has put the Mormon faith at crossroads with the government, and the American society, regarding their religious practices and the consequences of not following the law. The Mormons have had a choice to abandon polygamy, or continue with the practice and face the law.

To date, many Mormons have abandoned the practice and aligned their religious practices with mainstream American beliefs regarding marriage (monogamy). However, a cross-section of the Mormon faith still practices polygamy, although in small proportions.

America’s legal position towards polygamy has however not changed. Polygamy is still illegal in the United States and those practicing it, do so illegally. However, it is equally important to note that polygamy has gained a significant level of social acceptance among fundamental Mormons in America. Many factors (including the changing societal perceptions regarding the practice, and the legalization of same sex marriages in some American states, such as, Iowa, Maine, Maryland, and Massachusetts) fuel its acceptance.

Despite the existence of anti-polygamy laws, the states of Utah and Colorado have had a long history of condoning polygamy, so long as it is not public (Danver, 2011).[129] The minimal convictions and commitment by the US government to arrest polygamous partners support the underground acceptance of polygamy within some states of the US.

This minimal government commitment to arrest polygamists stem from the presence of many polygamists in the U.S, who continue the practice without any strong legal consequences. For example, within the two states mentioned above (Utah and Colorado), only two arrests have occurred within the last decade (although thousands of people practice polygamy within the two states) (Danver, 2011).[130]

In fact, the arrests of these two polygamous people only occurred because they openly advocated for polygamy. They therefore seemed a nuisance to the society, and an embarrassment to the state government. If the two polygamists never openly campaigned for polygamy, the government would not have arrested them.

In 2008, the Texas government also raided a fundamentalist Mormon church in the state (Danver, 2011).[131] However, they only did so because they suspected that forceful marriages of underage girls (to older men) occurred within the church. If it was adults practicing polygamy (with no children involved), there would be very little state involvement (despite the illegality of polygamy in America).

The government therefore uses the law selectively (in extreme cases of polygamy, and only when polygamy gives way to social ills, such as, marrying underage girls). Anti-polygamy laws therefore exist because it is politically right to have them (because the majority of Americans still do not fully accept polygamy). Moreover, if the government removes them, there would be a public outcry.

Unlike past decades when the government was very vocal about the practice of polygamy in the Mormon faith, the government has recently taken a back seat in the implementation of anti-polygamy laws.

Instead, only polygamous acts considered highly immoral by the American society (such as the marriage of underage girls) are subject to prosecution. The legal position of the American government towards polygamy in the Mormon Church has therefore stabilized in the recent years, because there have been fewer attacks on polygamists recently.

The government’s position regarding the dominance of polygamy in some Mormon sects has therefore been lukewarm because it only acts when polygamists become ‘too loud’ or engage in forceful marriages (considered unacceptable by the society). Otherwise, the government does not concern itself much with polygamists who foster the practice in secrecy.

In other words, when adults (with no history of child abuse or neglect) practice polygamy, the government rarely gets involved in such unions. This is the reason polygamy has found its way to American media. Now, polygamous shows are part of mainstream American television, such as, HBO’s Big Love and TLC’s Sister Wives.

3.3 Contradictions in the Application Polygamy Laws

3.3.1 Contradiction with Religious Laws

The willingness of Americans to accept diverse views regarding different social issues inform America’s legal and social fabric. This diversity is widely enshrined in America’s basic freedoms and rights. One basic freedom is the freedom of religion because the law grants Americans the right to practice whatever religion they chose, so long as these freedoms do not infringe on the rights of other people. Broadly, proponents of polygamy have advanced the practice as a religious freedom.

According to the First Amendment of the American constitution, the law should protect such a right. The exception to this rule manifests when polygamy infringes on the rights of other people. However, polygamy seldom infringes on other peoples’ right.

Therefore, it is difficult to find the right legal justification why the American law does not protect polygamy as a religious right. So far, anti-polygamy laws in America have taken a social dynamic instead of a legal one. In other words, American laws banning polygamy seem to represent the societal view towards polygamy as opposed to the legal view towards the same.

Therefore, while polygamy remains a religious right, the law fails to protect it as so.

The contradictions in the application of polygamy laws in America stem from its clash with religious doctrines, and the foundations that form the American society (Hitchcock, 2008).[132] Many Americans are Christians. Christianity does not criminalize polygamy the way the American law does. In fact, many polygamous men in the Bible were loyal servants of God.

David and Solomon are just a few examples of polygamous men in the Bible. Spector (2011)[133] says that it is a common religious practice among Christians to pay attention to religious teachings (first) before they pay attention to the ‘laws of man’.

This is the main problem that has faced the government’s will to implement anti-polygamy laws in America (because they face religious opposition from the Mormon Church and the few Christians who believe in Polygamy as a fundamental religious teaching from the Bible’s Old Testament). In fact, this opposition informs the Mormon belief that they hold the religious right to practice polygamy.

Apart from the Christian opposition to the application of anti-polygamy laws, the contradictions between the government’s law and Islamic laws governing polygamy clash too (Hagerty, 2008, p. 1).[134] The conflict between Islamic laws regarding polygamy (and the government’s law regarding the same) has been largely unexplored by many researchers (despite the continued practice of polygamy within the Muslim population living in America).

In fact, there has been minimal government involvement in the practice of polygamy within the Muslim population. Islamic laws allow men to have up to four wives. It is therefore within their religious right to be polygamous. However, the American law criminalizes any form of marriage after a man marries only one woman. This contradiction shows the clash between government laws and Islamic laws, worldwide.

In fact, after reviewing the religious practices surrounding the application of polygamy in America, no other religion restricts the number of women a man may marry (besides Islam). In fact, Judaism and Hinduism also do not restrict the number of wives a man may have. However, there is no agreement regarding the way Muslims practice polygamy. Some cohabit with more than one wife (in the same house), while others cohabit with many wives in different households.

Since many Islamic laws do not seek the legal recognition of their polygamous marriages, it is difficult for the government to prosecute such polygamists. Nonetheless, from the religious freedoms given to Christian, Islamic, Hindu, and other religious groups, there is a sharp contradiction between American anti-polygamy laws and religious laws (Hagerty, 2008).[135]

3.3.2 Protection of Individual Liberties

Another contradiction that undermines the application of the anti-polygamy law is the Supreme Court decision of 2003, in Lawrence vs. Texas (Ihara, 2008, p. 6).[136] Lawrence brought this case to the Supreme Court to question the legality of homosexual relations in Texas. The court ruled that Texas had no authority to dictate the private relationships of its citizens, or the way Americans chose to live their lives.

In this regard, the Supreme Court struck down all sodomy laws in Texas and gave unprecedented freedom to its people to practice whatever private unions they wanted. This ruling also said that the 14th Amendment to the American Constitution protected consensual sexual conduct of American citizens. The government therefore had no right to dictate how its citizens should live their private lives.

Previous court rulings that sought to undermine the liberties and freedoms of Americans were undermined by this ruling because the Supreme Court ruled that they were formulated using a narrow understanding of the liberties and freedoms enjoyed by the American population (Ihara, 2008).[137]

The above ruling was a landmark ruling in America because it symbolized a great milestone in the advancement of individual liberties. Moreover, many activists for gay rights considered the ruling a great milestone in the advancement of gay rights (Gallagher, 2006, p. 27).[138] Since the court made this ruling, Americans have enjoyed unprecedented freedoms in their lifestyle choices and private relationships.

Practically, the Lawrence vs. Texas ruling made it impossible for the state to continue using the criminal code to define the private relationships of American citizens. Indeed, in the past, the American government had extensively used the criminal code to dictate even the most private and intimate relationships of the American people.

From the above developments regarding the protection of American civil liberties and rights, there has been a growing trend of the court to protect private relationships. This development has given new ammunition for polygamists to demand equal protection by the government.

The reluctance to grant polygamous unions the same consideration that same sex marriage does (to legalize, or not?), creates a contradiction in the application of anti-polygamy laws, and the protection of individual liberties. The biggest question that arises in this regard is why the American justice system seems to safeguard selective individual liberties, while criminalizing others.

Naturally, if the courts protect same-sex marriages as legal marital unions (in some states), polygamy should also receive the same treatment because it is also a marital union that consenting adults choose to engage in (Gallagher, 2006, p. 27).[139]

Comprehensively, this paper shows that the inconsistencies in the application of anti-polygamy laws in America are obvious. Most of these inconsistencies were nonexistent during the initial criminalization of polygamy by the American federal government.

However, advancements in the protection of American individual liberties (and the changing societal perceptions regarding private relationships) created these inconsistencies (Gallagher, 2006).[140] Comprehensively, there is a trend within the American judicial system to safeguard most American individual liberties. Unfortunately, this trend protects these liberties selectively because polygamy does not receive this judicial protection.

Irwi (2004)[141] says that the initial attachment of polygamy with same sex marriage is responsible for this neglect because critics of same sex marriages used polygamy as an argument against the legalization of same sex marriages.

Therefore, American civil organizations refrain from justifying the initial fear of its critics that the possible legalization of same sex marriages would lead to the legalization of polygamous unions. In this regard, the law continues to neglect polygamy. All 50 states of America therefore still criminalize the union.

CHAPTER FOUR

4.0 Gender and Conceptions of Culture

Since polygamy redefines marital relationships, it has created many public debates regarding gender equality in America. More specifically, many people link polygamy with serious gender inequalities, particularly concerning the status of women.

Analysts have not only discussed gender inequality in polygamy as a social issue, but also a legal one (Zeitzen, 2008, p. 125).[142] Therefore, American laws governing polygamy also cover gender inequality issues.

For example, the United States (U.S) Supreme Court (and other lower courts) often discussed gender inequality issues during the hearing of polygamy cases. Nonetheless, over the last few decades, there has been little willingness by the American judicial system to re-examine the illegality of polygamy in America, despite the changing public views regarding social unions.

Since the legal debate surrounding polygamy includes gender inequality issues, the unwillingness of the judicial system to re-examine the legal status of polygamy means that gender issues in polygamous relationships remain unaddressed. Therefore, since the judiciary hesitates to readdress the state of polygamy in America, the contentious gender equality issues in polygamy exist.

Since polygamy raises serious gender equality issues, this chapter discusses the issue of gender inside the American society and inside polygamous systems, framing the analysis through the relationships between gender and culture.

Through these analyses, this chapter explores America’s social attitudes regarding gender inequality (in polygamous unions) by showing that the 19th century American government criminalized polygamy not as a tool to empower women, but rather, to protect the majority societal view of morality and weaken the political power of the Mormon Church.

This paper also shows that since the Mormon Church had a growing political influence in some parts of America, the government used the polygamy debate to limit this influence.

This chapter also shows that the need to preserve hegemonic Christian morals informed America’s position towards polygamy. This way, the government was able to support the view of a majority of Americans who refused to support polygamy. To this extent, the influence of the dominant culture prevailed on the minority view regarding polygamy in America.

This chapter comprehensively shows that even though polygamy introduced significant gender inequality issues, other political and social issues, like preserving hegemonic Christian morals and limiting the political power of the Mormon Church, informed its illegalization. To affirm these facts, this chapter explores the influence of culture on gender roles, relationship between polygamy and America’s political order, attitudes towards gender roles in America, and patriarchy in polygamous marriages.

4.1 Gender’s Culture in the American Society

4.1.1 Influence of Culture on Gender Roles

For many centuries, the gender debate has been an important issue, not only in America, but also in other parts of the world. In fact, gender concerns have contributed vastly to the unacceptability of polygamy in America. Nonetheless, while trying to understand how polygamy affects gender rights and equality, it is equally important to analyze the context of gender rights within different cultures.

For example, Volpp (2001)[143] believes that western nations use the failure of third world countries to protect gender rights, with the same apparent zeal of western countries to justify racism against third world people.

She also believes that western countries use this argument to allow western cultures to gloss over the gender oppressions that exist in their countries. Therefore, while many western cultures protect gender rights, to some degree, some people have used their purportedly comparatively stronger commitment to gender equality to justify their superiority over other cultures. However, despite the existence of this comparison, it is still important to highlight the advanced protection of gender rights that some western cultures uphold.

For instance, in America, the cultural diversity of the population supports the protection of liberal views. In fact, the government protects many liberal views that characterize different American cultural dynamics. However, since the American society is somewhat liberal, there are some religious and cultural views that the federal government does not support. The conviction of the Mormon Church to practice polygamy is an example of a religious practice that the government does not protect.

As a result, Volpp (2001)[144] believes it is easy to construct minority women in such communities as victims of their cultures, as opposed to evaluating the role played by the majority in the oppression of minority women.

Cultural diversity has introduced a new debate in the conceptualization of gender roles because how different cultures treat women removes the notion that gender roles were mainly associated with biological sex.

Indeed, many people believe that gender roles are a direct result of biological sex, with women having the least physically straining activities because of their perceived “weak” physical strength (compared to men) (Van Krieken et al., 2010).[145] The various roles of women in different societies, however, have shown that biological sex is not the main determinant of gender roles, or the division of labor between men and women.

For example, some societies connect women with hard labor. Different societies also approach motherhood from different perspectives and therefore, it is difficult to establish a universal acceptance of the way people perceive motherhood. From these variables, the expressive function of women in the society is mainly a function of the convenience of men, as opposed to the way families should function. In other words, men defined most gender roles in the society through social justifications, such as, religion and culture.

They also did so at their convenience, without considering the opinions of women. The society therefore rarely considered gender equality issues in the creation of gender roles. To this extent, some researchers believe that gender roles are mainly a function of the beliefs and values of the society as opposed to the embodiment of male and female roles, as a construct of biological sex.

4.1.2 Role of Culture in illegalizing Polygamy

The movement for the acceptance of Mormon polygamy, which started in the 19th century, greatly shows the impact that cultural attitudes have on the determination of legal views regarding polygamy. This is especially more apparent in America because most of America’s legal views about polygamy stem from the societal views regarding the same.

This has remained so for a very long period because the American legal view towards polygamy is a representation of the view of a majority of Americans towards the practice. The influence of culture on the illegalization of polygamy in America is also more apparent in the government’s action towards polygamy (since the 19th century).

Song (2007)[146] says that the American government has never campaigned against any other social issue as it did polygamy. According to Song (2007)[147], this strong zeal by the American government to criminalize polygamy shows the influence of the dominant culture towards polygamy.

Some people may perceive the zeal at which the American government condemned polygamy as a sign of how liberal democracies manage illiberal attitudes and norms. However, as Song (2007)[148] observes, what may people do not see is how little the government’s quest to criminalize polygamy improved the status of women in the Mormon faith.

Instead, the American quest to stop the spread of polygamy only worked to turn away the attention from the patriarchal norms of the dominant culture in America. Stated differently, the attack on polygamy (by the dominant culture) only worked to protect Christian monogamy (where a man lives with one woman) from criticism.

4.1.3 Polygamy and the Political Order in America

Besides the cultural opposition towards polygamy, Song (2007)[149] believes that the American government was motivated to attack Mormon polygamy by its quest to stop the growth of the political power of the Mormon Church. There was also an agreement that the traditional marriage structure (monogamy) had a close relationship with America’s political order.

Indeed, as Zeitzen (2008)[150] observes, the Christian perception of marriage (which forms the majority view of Americans regarding marriage) views the union as a sacred obligation between men and women.

Therefore, in most western nations, marriage represents a civil contract between the parties involved. Since marriages form the base of different societies, and the government regulates the activities of the society, the government has the duty to regulate marriage through the law. Through such a justification, the society is a product of marriages and similar unions.

Therefore, out of this relationship stems societal responsibilities, agreements, obligations and duties, which traditionally, have benefitted men at the expense of women. Since the government is required to regulate such legal requirements, it is easy to see how polygamous and monogamous marriages occur, and how the government (to a less extent) derives the justification for regulating such unions.

In other words, since the family structure is the basis for societal responsibilities, agreements, and obligations, the government intervenes by regulating the family structure because of the role of the family in creating these legal responsibilities. Indeed, governments govern societal responsibilities, and since the family structure is the root of these responsibilities, the government governs the family structure as well.

4.1.4 Women’s Suffrage

Women’s suffrage defines the right of women to participate in election processes by running for office or voting for their selected candidates. Only until the 19th century, many women in developed countries could not vote.

However, before the American government allowed women to vote, Utah allowed women to vote, as a strategy for men to gain political dominance over political issues. Women’s suffrage in Utah was especially central in the polygamy debate because the political class (mainly polygamous men) wanted to keep the practice by allowing their women to vote (because they hoped their women would support them).

Therefore, Women’s suffrage is especially important in this chapter because it underlies the role of polygamy to empower or weaken women (depending on the understanding of how polygamy treated women). The threat of Mormon polygamy to the conventional Christian perception of monogamous marriages clashed because of the close association of Mormon polygamy with women’s suffrage.

In 1852, the state of Utah introduced a new legislation that made it easy for Mormons to seek divorce from their partners, so long as they could show that their union was no longer peaceful (Song, 2007).[151] To many Americans, the introduction of this law threatened the existence of monogamous marriages because the court easily granted permission to divorce, based on weak grounds.

In fact, the Utah court introduced a new clause in the law that gave it the power to grant divorces, so long as it was convinced to do so. To some legal observers, this clause was very broad and people could easily abuse it by separating from their partners without any strong justification (Song, 2007).[152]

This new legal addition to Utah state laws made it the most permissive state in America. Furthermore, some observers say that Utah’s divorce rate was higher than any other state in America (Song, 2007).[153] Interestingly, unlike common perception, Mormon plural marriages empowered women to determine how long their marriages would last, or when to end a relationship. Men did not enjoy this right (at least as much as women).

In fact, Song (2007)[154] explains that it was more difficult for men to be granted divorce if they were opposed by their wives (compared to women).

Statistics say women started more than 73% of all divorces granted in the state of Utah (Song, 2007).[155] Therefore, some people realized the opportunity for women to start divorce proceedings as their way to leave their disapproval of plural marriages.

In fact, the high divorce rates within polygamous unions showed that polygamy (then) worked more as serial polyandry, rather than polygamy in its conventional form. Unexpectedly, residents in other jurisdictions around Utah took advantage of the easy divorce laws in Utah to separate from their partners. The high rate of divorce peaked in the 1870 period.

The high rate of divorce within Utah created a common reason for anti-polygamy supporters and proponents of inflexible divorce laws to advocate for the reduction of divorce rates in America.

Through this understanding, Peavy (1996)[156] says that polygamy and the easy divorce laws in Utah threatened the base that supported marriage as a respectable institution and a lifetime commitment between the partners involved. Besides the easy polygamy laws adopted in the state of Utah, the Mormon experiment with polygamy created the image that Mormon polygamy was a show of cultural corruption.

In this regard, Song (2007) explains that in 1870, the “Mormon-controlled Utah territorial legislature had unanimously approved the enfranchisement of women, including all female citizens over twenty-one and all the wives, widows or daughters or native born or naturalized men” (p. 151).[157]

Therefore, women in the Mormon community were among the earliest women to vote in America. This empowerment continued until the introduction of the Edmunds Act (a Federal law), which stopped them again. The introduction of the Edmunds Act made it illegal for people to cohabit in illegal unions.

Therefore, even though a man did not have a certificate to prove that he was not married to several women, the Edmund law made it illegal to cohabit with multiple women. This act therefore eliminated the need to have a marriage certificate as proof that a man was polygamous. The introduction of the Edmunds Act stopped the empowerment of women in Utah because women could vote as a way to support their husbands in political processes.

Ordinarily, polygamous men increased their political support base by allowing their families and multiple women to vote. Interestingly, even on matters that questioned the legitimacy of polygamous marriages, women in polygamous unions still voted alongside their husbands (supported polygamy). Therefore, the introduction of the Edmund Act stopped polygamy and the empowerment of women in this regard because women could not vote as a way to protect polygamy, anymore.

Therefore, the willingness of the Mormon Church to embrace women’s suffrage was a tactical move by the Mormon-controlled legislature to guarantee their political domination of receiving support from their wives, in the wake of increased settlement by “gentiles” (Gray, 1976, p. 83).[158] Still in the 1870s, many supporters of women’s suffrage hailed the Mormon support for women’s enfranchisement because it empowered women, even if it is politically.

The belief that the support for women’s suffrage would enable them to have a political voice that would finally free them from male bondage supported this argument. One congressional representative from Indiana, who introduced a similar legislation, hoping that freeing women would lead him or her to liberate from polygamous unions, also shared this view (Song, 2007).[159]

To the fear of some people, the empowerment of Mormon women made them support polygamy, as their husbands did. Therefore, women’s suffrage supported the view of anti-polygamy supporters who believed religious beliefs degraded women in the Mormon faith to exercise independence during voting.

4.2 Gender’s Culture inside Polygamy

4.2.1 Attitudes towards Gender Roles in America

Since the 19th century, the dominant culture in America has considered polygamy as an unacceptable practice. The strongest arguments against polygamy focused on the fact that polygamy undermined the majority view of morality, as explained in Christian doctrines (where a man only has one woman) (Gray, 1976).[160]

The attitude of the American society regarding polygamy has changed over the past few years. This change in societal attitudes stem from the increased awareness regarding individual liberties and freedoms in America. However, regardless of the changes in perception towards polygamy, the American judicial system addresses polygamy the way it did when it first occurred in the 19th century.

For example, most decisions taken by the American judicial system still view polygamy as an odd union that the American society should not accept (Zeitzen, 2008).[161] Similarly, such decisions portray polygamy as a degradation and subjugation of the attributes of the present-day American woman.

However, while the American judicial system protects Mormon women against gender inequality in polygamous relationships, proponents of polygamy question the protection of rights for women who do not subscribe to the Mormon polygamous lifestyle (Zeitzen, 2008).[162] This debate comes from the high occurrence of gender violence in the American society (free from polygamous influences) and the existence of gender inequality in the society.

For many reasons, the American justice system has maintained that polygamous unions are illegal. According to March (2011)[163], the judicial system has maintained this position because of four main reasons – the lack of female autonomy, interference with the civil liberties of children, unfairness regarding how men and women choose partners (“marital market”), and the excessive burden of polygamy on the society (existence of large families).

According to March (2011)[164], most of these reasons are not necessarily the judicial reasons for criminalizing polygamy, but rather, the societal view for attacking polygamy.

Through this side, March (2011)[165] also believes that partly, the capability of polygamy to increase gender inequality in the society informs the society’s hesitance to accept polygamy.

From another understanding of the gender issue, Song (2007)[166] says men may also be victims of polygamous unions (in its religious context) because they may not necessarily prefer polygamous unions, but because of their religious obligations to uphold polygamy, they choose to engage in it.

Therefore, according to Song (2007)[167], Mormon men and women may equally be victims of their religious duty to practice polygamy.

From this argument, polygamy not only affects women but also men perceived to be beneficiaries of a polygamous society. Therefore, while polygamy seems to subordinate women, it also significantly opposes the wishes of some men who may not wish to engage in it (as a religious obligation). For example, men living polygamous communities, who did not wish to engage in the practice, had a difficult time avoiding the practice because it was a religious duty to practice polygamy.

Gibson (2010)[168] says Americans have developed a negative attitude towards government raids on polygamous communities in America (like the 2008 polygamy raid in Texas that removed more than 400 children from their families). Some Americans therefore believe that some of these government raids paint a negative picture on the preservation of the rights of women and children.

Some Americans hold this view because they view the government’s commitment to separate children and women from their families as a contravention of the rights of children and women to live together as a family (CBS Interactive, 2009, p. 1).[169] For example, the 2008 raid on the polygamous community in Texas saw the government arrest more than 400 children (mainly young girls).

Observers perceive this raid as the largest in American history (CBS Interactive, 2009, p. 1).[170] Apart from the violation of civil rights, where the children were supposed to stay with their parents, the polygamous raid showed the extent that polygamy in the Mormon Church spreads gender inequality in the society.

4.2.2 Gender Arguments against Polygamy

Some feminists view polygamy as a retrogressive tool that undermines women in the society. Murray (1994)[171] refers to the South African law, which undermines polygamy, as an advancement of the nuclear family where a man, woman, and their children live in one family.

Kuper (1985)[172] explains that this nuclear family structure (as understood today) is a product of the post-modern industrial period where a man, woman, and children live together.

Initially (pre-industrial period) the nuclear family was extended. More than three generations of families lived together as a nuclear family unit (Macionis & Plummer, 2012).[173] The understanding of the modern post-industrial nuclear family is therefore a product of the transition from a traditional pre-industrial nuclear family in a modern post-industrial nuclear family.

Even though some societies contest the post-industrial structure of the nuclear family, the context of the nuclear family in this study relates to the post-industrial nuclear family structure where a family is consisted of one woman, one man, and their children. According to Murray (1994)[174], the South African law supports this family structure. From this basis, the South African law does not support polygamy.

Some women gender activists say that polygamy stops some of the advancements made by women in America (such as, the right to compete for political positions, the rights to vote, and the right to inherit property) (Zeitzen, 2008).[175] For example, some leaders of polygamous unions in the Mormon Church arrange such unions and involve minors, who do not give their full consent to engage in such marriages.

Even though monogamous unions also involve minors, accusations of the involvement of minors in polygamous unions are more widespread because most polygamous unions in America occur as a religious practice and not because of personal consent. Coercion sometimes occurs in such unions.

On the opposite side, there is an existing counterargument, which shows that some women still support polygamy (Milton, 2009).[176] The fact that some women are willingly polygamous informs this argument.

The argument that some violence and mistreatment exist within conventional nuclear families also opposes the view by some gender rights supporters that polygamous marriages are unfair to women. Therefore, proponents of polygamy also argue that conventional nuclear families lead women to much harm, which also exist in polygamous relationships.

For example, Milton (2009)[177] argues that when women in monogamous relationships divorce from their husbands, they often have the “short end of the stick” and therefore, this unfairness promotes gender inequality as well.

The argument here is that monogamous relationships do not necessarily lead to equality, and therefore, people should not perceive polygamous relationships as a gateway to female oppression. Indeed, there are also numerous evidences where polygamous relationships have worked well, and married partners have lived happily together.

4.2.3 Patriarchy in Monogamous and Polygamous Marriages

Concerns over polygamy issues increased when there were many unanswered questions regarding sexual values, family structure and the role played by women in society (the growing concern regarding increased prostitution and increased divorce rates informed these concerns) (Song, 2007).[178] Therefore, there was a greater push among the American public to preserve the Christian monogamous marriages.

From this background, the society realized polygamy to be intolerable. In brief, when the polygamy debate aroused national interest, there was already a predetermined position held by gender right activists who believed polygamy undermined women.

Through the understanding that polygamy threatened the majority view of polygamy, where one man lives with one woman, anti-polygamy movements kept pushing for the criminalization of polygamy under the theme of sexual deviance, thus persuading many Americans to believe that polygamy would finally disadvantage minority populations (mainly children and women) (Song, 2007). This argument created a moral fear around the acceptance of polygamy by the American society.

The association of Mormons with easy divorce and female deprivation made this situation worse because many Americans started to see Mormon polygamy as a threat to monogamous marriages. Indeed, as expressed by Song (2007), the acceptance of polygamy in Christianity challenged the traditional acceptance of monogamy in the same faith.

The law of coverture (where the law presented man and woman as one identity, with the woman’s authority covered by the authority of the husband) was undermined in this regard. To this extent, Zeitzen (2008)[179] sees a close similarity between monogamy and polygamy because both marriage types were patriarchal to women.

Indeed, within monogamous marriages, a husband’s authority includes a woman’s legal status. Comparatively, a husband’s authority (within a polygamous marriage) still controls a woman’s legal status. However, Song (2007)[180] says the belief that monogamous marriages were romantic, to show the woman as the object of focus, saved its image.

Even though a debatable issue, society perceived women in monogamous marriages as having a strong ideology of romantic marital love. This ideology centered on the belief that monogamous marriages offered an opportunity for women to receive plentiful love from their husbands without having to compete for the same love with another woman (again, women are positioned as objects). To this extent, women perceived monogamous unions as more romantic than polygamous unions.

Moreover, the idea that most women in monogamous marriages engage in such unions, freely, attracts many Americans to accept monogamous marriages as the ideal form of relationship between men and women. Furthermore, the metaphor representing monogamous marriages as the union of one flesh (coupled with mutual love) was more acceptable in the society because it provided a more implied version of the patriarchy (where the male is the primary figure of authority) between men and women in monogamous marriages.

Even though there were significant levels of patriarchy between men and women in monogamous relationships, polygamy was an introduction of a different type of patriarchy, where the male authority was more profound (over many women, as opposed to one woman).

Male patriarchy surfaces as a very critical component of the social construction that supported the arguments against polygamy. People understood male patriarchy as a virtue that stems from ancestors who believed that men had the power to oppress, dominate and exploit women (McMahon, 1995).[181] Somewhat, patriarchy may be perceived as a universal practice because many communities around the world practice it in different levels.

However, what comes out from all these forms of variable patriarchy is the significant variation of power and privilege between men and women.

In Saudi Arabia, for example, male patriarchy is among the highest in the world, while some countries, such as, Norway approach gender issues almost on an equal platform (Long, 2005).[182] A majority of Americans therefore perceived polygamy to embody male patriarchy because polygamy did not appear to approach gender roles on an equal basis.

Instead, polygamy raised the man as a superior authority to women by making the women compete for male attention, love, resources and other male attributes, which are essential in marital relationships. This way, polygamy was an oppressive and patriarchal practice.

Consequently, people perceived this type of patriarchy as incomparable to monogamous marriages because even though monogamous marriages may be patriarchal, this type of patriarchy is somewhat acceptable (according to hegemonic Christian views). Therefore, even as Mormons questioned the jurisdiction of the federal government in defining polygamy within the Mormon Church, the court referred to sexual behavior and marriage structures (witnessed in polygamous relationships) as objections to polygamy.

For example, Chief Justice Waite expressed his concern regarding “pure minded” women engaged in polygamous relationships because he feared the religious practice of polygamy within the Mormon Church made women to be “victims of delusion” (Song, 2007).[183] Therefore, the court saw polygamy as the embodiment of the patriarchal principle.

Indeed, when Mormon polygamy compared to the idea of romantic married love (at least in theory), there was a belief that polygamy in the Mormon Church does not give women the consensual will to engage in such unions. As such, it was not different with slavery. Interestingly, anti-polygamy movements in the 19th century, and even today, seldom addressed patriarchal issues for women in monogamous marriages, and those outside marriages.

Besides male patriarchy, some feminists have also advanced the opinion that the family structure, in itself, is a promotion of male patriarchy. This form of patriarchy stems from the need for men to understand their inheritor by controlling women’s sexuality. Through this relationship, Estlund (1997)[184] believes that the family structure is a system that transforms women into economic and sexual properties of their male counterparts.

In fact, not long ago, the earnings of women in Europe formed part of their husbands’ economic property. Despite the tremendous progress made by women in accessing education and work opportunities, men continue to use their authority on women. For example, many women still receive lesser pay than men do. The society also tasks women with the responsibility of child rearing and taking care of the household.

Besides monogamous families being patriarchal, Bennion (2012)[185] believes that the family structure also deprives men of the important experience of enjoying intimacy with their children. Therefore, even though the society perceives polygamous unions to be patriarchal, monogamous unions also exhibit some degree of patriarchy.

Moreover, even though conventional Christian marriage is patriarchal, proponents of polygamy claimed the practice was more patriarchal than the conventional Christian form of marriage (monogamy). Even though polygamy was not the only patriarchal practice in America, a large proportion of the American society treated it with great intolerance because polygamy was an extreme form of patriarchy that did not reflect the democratic ideals of the society.

Nonetheless, after analyzing the wider social and political contexts that birthed the anti-polygamy movement, I see that even though anti-polygamists felt motivated by the commitment to protect the rights and status of women in the Mormon Church, they felt equally motivated by the commitment to preserve monogamous marriages (Gray, 1976).[186]

This is because the society was intolerant to polygamy because it contradicted conventional Christian perspectives of marriage, which supports monogamy.

Comprehensively, this chapter shows that gender norms in the dominant culture influence the legal position of the American government towards polygamy. However, the 19th century society felt less motivated by the will to have more women empowered than their commitment to preserve societal gender norms (and public morals that characterize the dominant culture).

The Christian model of monogamous relationships between men and women therefore prevailed as part of the dominant culture. This was a way for the society to prevent the introduction of profound patriarchal practices from polygamy.

Volpp (2001)[187] however warns against comparing feminism with multiculturalism because this process hides the different factors that shape different cultural practices and the forces that define women’s role in the society (besides culture).

Similarly, cultures, just like gender roles, change. Indeed, culture is a way of life and different societies have changed their ways of life. However, despite the change of cultural practices, female subordination exists (albeit at different levels). Therefore, Volpp (2001)[188] believes that cultures are not entirely to blame for women’s subordination.

Lastly, Volpp (2001)[189] says that comparing feminism to multiculturalism ignores the involvement of women in patriarchal systems, and misrepresents the level of domestic violence in the society. Despite these analytical inconsistencies, different cultures can however not compare with one another anyway (because there are different advantages and disadvantages to every culture). Therefore, what may be applicable in one cultural context may not compare to others.

Nonetheless, after considering the introduction of women’s right to vote in Mormon strongholds, such as, Utah, and the close attachment that polygamous women shared with their husbands (especially concerning the protection of polygamy as a religious right), there was less opposition (from women in the Mormon Church) regarding polygamy.

To many observers, the minimal opposition by Mormon women towards polygamy was a sign of the degradation of women within this faith. However, not everybody holds this opinion because some women in the Mormon Church felt satisfied with the polygamous marriages. Comprehensively, this chapter shows that the dominant culture in America informs the majority opinion regarding polygamy because it seeks to preserve public morals and hegemonic Christian views on marriage.

Chapter Five

5.1 Results

Unchanged religious and gender concerns about polygamy inform America’s unchanged legal position towards polygamy
Hegemonic social conditioning among most Americans inform the lack of attitude change about polygamy in America
Societal attitudes about gender significantly affect America’s attitude about Polygamy
The prohibition of polygamy in America infringes on individual liberties and freedoms of the people who practice polygamy as a religious right

5.2 Conclusion

This paper focused on evaluating the main reasons for the failure of the law to address the polygamy dilemma in America. I paid special attention to explain why the American legal position regarding polygamy remains unchanged for a long time. In this regard, I demonstrated that the changing societal attitudes in America and the influence of culture and religion manifest as important issues in understanding why the polygamy dilemma prevails today.

As I have stated throughout the thesis, the preservation of hegemonic Christian beliefs about marriage, and the fear that polygamy may promote the subordination of women, informs the failure of polygamy to gain acceptance in the American society.

Throughout the paper, the dilemma of polygamy in America broadly takes a religious dimension because most polygamy issues in America concentrate in the Mormon community. Even though several bold attempts by the American government to criminalize polygamy prompted a large section of the faith to abandon the practice, some Mormons still practice polygamy today.

Besides polygamous Mormons, smaller sections of the American society (mostly Muslims) also practice polygamy. Consequently, since polygamy in America is largely a religious question, the distinction between the role of the state and religion broadly defines the polygamy dilemma in America.

Certainly, polygamy laws in America criminalize the practice throughout all states. However, as I have argued, the government introduced these laws in the late 19th and 20th centuries and there have been few or no attempts to review them. The failure to review polygamy laws stem from the unchanged societal concerns about polygamy, which made it difficult for Americans to accept polygamy in the first place.

Such issues include gender concerns and hegemonic religious views about marriage. These issues have remained unchanged throughout the onset of the polygamy debate until now. The law has strived to uphold these dominant societal views about gender balance and the preservation of the conventional marriage structure (where one man lives with one woman) by criminalizing polygamy.

However, the consistency of the law to criminalize polygamy poses significant challenges to the application of the law because of its significant contradictions with other laws. As I have demonstrated in chapter three of this thesis, polygamy laws in America contradict religious laws and the role of the government to protect individual liberties.

Certainly, the government is supposed to protect the rights of different people to practice their religious faiths by ensuring that other people do not infringe on individual liberties. Indeed, since polygamy in America is a religious/legal question, the criminalization of polygamy contradicts the right of people to practice their religious beliefs.

In addition, some religious laws, like the freedom to marry (up to) four wives in Islam, contradict polygamy laws in America, which criminalize all forms of polygamy. The changing societal attitudes about marital unions also create a more interesting scenario in the polygamy debate because the society has been less analytical about the types of marital unions people choose to have.

This laxity has seen many states legalize gay marriages. Albeit polygamy and the acceptance of gay marriages are unequal, it is interesting to see that the American law has been flexible to accommodate the changing attitudes about gay marriages, but rigid in reviewing the legal position of polygamy in America.

In my analysis, there are diverse and sensitive issues surrounding polygamy than the issues surrounding other types of marital unions (such as, gay marriages). For example, the gender debate is a serious issue in polygamous unions, which does not openly apply to other types of marital unions. Moreover, polygamy affects the gender progress that characterizes the American society and the quest for affirmative action.

Indeed, America has come a long way in promoting women empowerment. However, polygamy presents many opportunities for male patriarchy, which are not welcome in a society that strives for gender balance in almost every social, political, and economic aspect of the society. In this regard, polygamy faces stiff opposition in America.

I have however found it important to show the similarities and distinctions between polygamy and conventional marital unions by demonstrating that male patriarchy also exists in the conventional nuclear family structure (where one man marries one woman). However, compared to polygamous unions, there is a lesser degree of male patriarchy in the conventional nuclear family structure.

For instance, the competition for male attention, financial resources, and emotional support is lesser in the nuclear family structure than the polygamous family structure. These dynamics have encouraged many people to accept the conventional nuclear family structure, as opposed to polygamous family structures.

Lastly, it is crucial to highlight that America’s legal position towards polygamy is also a product of social and religious conditioning. For example, I have demonstrated that the idea of romanticism has made it easier to accept conventional marital unions, where one man lives with one woman, as opposed to one man living with multiple women.

This perception has prevailed throughout generations. Similarly, Christianity has promoted the idea of these conventional marital unions. These views have informed America’s culture regarding marital unions.

In my view, the law has only stepped in to protect these views by preserving what most Americans believe is “right”. Therefore, even as the society changes its attitudes about marital unions, it will be difficult to change America’s legal position towards polygamy if Americans still fear that the legalization of polygamy may promote gender subordination and threaten hegemonic Christian views about marital unions (where one man lives with one woman).

5.3 Recommendations

The government needs to address the gender issues surrounding polygamy to find a lasting solution to the polygamy dilemma in America
Hegemonic cultural and religious concerns need to be considered when solving the polygamy dilemma in America
A clear distinction should be made to outline when individual freedoms and liberties can be compromised when applying polygamy laws

Proposal

Polygamy in America: Between Gender, Law, and Society

Statement of the Problem

Generally, polygamy raises the question of gender inequality in the United States of America. Certainly, since this type of marriage is a relation between many women and a man, it suggests inequality between partners involved in this relationship – especially women. The question of inequality in polygamy also extends to the legal system with all its branches. The U.S. legal system has considered these issues, including both the Supreme Court and States’ courts.

Despite changes in gender culture and changes in societal attitudes, which become more liberal in the American society, there is a stability of the legal position towards polygamy. At its beginning, all Mormons practiced polygamy as a religious commitment, but government intervention made the majority of Mormons stop it. At the same time, small populations of Mormons insisted on continuing the practice as a religious right. After government raids against polygamy practitioners in the mid-twentieth century, societal attitudes started to change.

Since then, polygamy has created a big legal dilemma in the US because the law outlines that the government needs to protect religious rights and freedoms. Analysts say polygamy in America is a religious practice of the Mormons. The government’s position on polygamy has however been intolerant of the practice. Moreover, polygamy raises serious gender issues, which have partly informed the societal views towards the practice.

The government’s position to criminalize the practice and its unwillingness to re-examine this position therefore means that gender issues lay unaddressed. The law has not addressed these issues, despite the changing societal attitudes about marital unions in America. Comprehensively, this paper seeks to explore religious accommodation, gender imbalance, and the legal issues surrounding polygamy.

Literature Review

Globally, laws have different interpretations of polygamy, but in America, the law defines polygamy as a plural marriage where a man marries several women at the same time (Alexandre, 2007).[190] In the book, Polygamy: across Cultural Analysis, Zeitzen (2008)[191] explores the various forms and foundations of polygamy.

In the book, Zeitzen (2008)[192] explains that, the two main forms of polygamy are cultural polygamy and religious polygamy. America’s polygamy is of a religious nature because culturally, the American society frowns upon polygamy. Polygamy in Africa is an example of cultural polygamy, which has replicated through generations.

Polygamy was practiced by the Mormon Church, and later, part of this community took up the practice and now continue polygamy in different parts of America (although discreetly). The Church of Jesus Christ of Latter-day Saints was however among the first religious groups to practice polygamy between 1852 and 1890.

In the beginning, there was widespread protest against polygamy in the Mormon Church, but Joseph Smith (the first Mormon prophet) convinced his followers that it was acceptable to practice polygamy since it constituted an important part of their religious faith (Alexandre, 2007).[193] Since many Mormons lived in Utah, the federal government was always in conflict with the state regarding the practice of polygamy.

After this conflict was established, the federal government banned the practice in 1862 (Alexandre, 2007).[194] In the same year, the federal government passed the Morill act, which officially banned polygamy in America.

Subsequently, the government enacted the Edmunds Act of 1882, where the government deemed anyone found to be practicing polygamy to have committed a felony (Alexandre, 2007).[195] The Edmunds tracker of 1887 was however the strongest legislation that targeted the practice of polygamy in America because it consolidated the federal government’s position on polygamy. Later, the debates about polygamy became part of common social and legal conversations.

Even with the criminalization of polygamy in America, the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) still practices polygamy. This group practices polygamy as part of their religious right (the way their prophet practiced it in the 19th century).

According to Bozzuti (2004)[196], the number of followers practicing polygamy in the US is about 30,000, but compared to the number of Mormons living in America, this population is only a fragment of the population practicing polygamy in America.

Polygamy has attracted a lot of public attention over the last few years because it puts the American government and the fundamentalists Mormons in a confrontation. In fact, proponents of polygamy question the justification for the government to formulate a law that bans a religious practice. From the potential conflict that polygamy brings to the state and the church, many scholars have tried to investigate the legal and social issues surrounding the debate.

EGL (1923)[197] is among the first scholars who tried to investigate the potential conflict that polygamy arises between the state and the church. Smith (1903)[198] is another researcher who investigated the potential conflict that the state and the church share regarding polygamy.

His views gravitated towards highlighting the government’s failure to implement polygamy laws (whether they were for, or against the practice) (Smith, 1903).[199] Other researchers have gone a step further and tried to expose the present and past attitudes regarding polygamy in America.

Researchers such as Zeitzen (2008)[200] have held a favorable view of polygamy and suggested that, polygamists may uphold the practice as a religious or traditional commitment (independently of the law).

From the failure to enforce polygamy laws, the public has been skeptical about the government’s commitment to solving the polygamy dilemma. However, based on gender arguments, there is little indication to show that America will allow polygamy.

The Gender Question

For centuries, gender equality has been an important issue not only in the US, but also in other parts of the world. Therefore, part of the reason polygamy has not been accepted in America is because it introduces elements of gender inequality between men and women. Some feminists view polygamy as a retrogressive tool that undermines women in the society.

Murray (1994)[201] says that polygamy undermines the nuclear family (where one man marries one woman) as the “ideal” social unit. Murray (1994)[202] refers to the South African law, which frowns upon polygamy for the advancement of the nuclear family unit as the ideal family structure.

Interestingly, Murray (1994)[203] shows that the South African law favors the western perception of polygamy, but does not give any reasons for doing so. March (2011)[204] also shares a similar view because he contends that polygamy prevents the advancement of the nuclear family as the “ideal” family structure.

A common argument that some feminists propose is the fact that polygamy retrogresses the advancements made by women around the world. Since some polygamous marriages involve female coercion, the feminist groups that propose this view believe they are right to say polygamy promotes gender inequality.

However, there is an existing counterargument, which shows that polygamy is not entirely bad for women (Milton, 2009).[205] This argument stems from the observation that, some women willingly enter into such unions and they do not consider it a bad practice at all.

The violence and mistreatment that exist within conventional nuclear families defeats a proposed argument that there is a lot of violence and mistreatment in polygamous relationships. Proponents of polygamy also argue that conventional nuclear families also expose women to a lot of vulnerability, which exist in polygamous relationships as well. For example, Milton (2009)[206] argues that when women in monogamous relationships divorce from their husbands, they have the “short end of the stick” and therefore, they live a less fulfilling life (compared to their partners).

The argument here is that monogamous relationships do not necessarily lead to equality, and therefore, people should not perceive polygamous relationships to lead exclusively to oppression. Indeed, there are also numerous evidences where polygamous relationships have worked, and couples have lived happily together.

There is therefore a common perception that the Mormon community may continue to practice polygamy if the same challenges they face in their unions also exist in other forms of legal unions (Milton, 2009).[207] However, Zeitzen (2008)[208] contends that polygamy (in its modern form) faces many social-cultural, economic, and political challenges that threaten its future existence. Indeed, even within the Mormon population, there is a growing fear that future Mormons may not continue the practice.

Government’s Position

The government’s position on polygamy has been undeterred for years. However, scholars, such as, Gibson (2010)[209] believe that some of the government’s raids on polygamy ranches dented the image of the government, among the American public.

His argument comes from the contradictions in the government’s implementation of the First Amendment and the subsequent implementation of judicial and executive laws regarding the same law (Gibson, 2010).[210] More so, people who have viewed the government’s actions with contempt express deep reservations about its willingness to protect the citizens’ free exercise clause. Kincaid (2003)[211] shares similar views and criticizes the American constitution for being unwilling to accommodate multiculturalism and diversity in the legal system.

According to Anglo-American writers, the society should not accept polygamy (Gibson, 2010).[212] Their argument centers on the fact that this type of marriage contravenes public policy and hegemonic Christian beliefs on marriage, which propose that marriage should comprise of one man and one woman. However, the biggest criticism leveled against this argument is that the Mormons who practice polygamy are still Christians.

Some observers also argue that even if the Mormons were not Christians, their religious inclination should not be significant when evaluating whether America should accept polygamy, or not. Indeed, the American constitution does not peg the recognition (or non-recognition) of polygamy to an individual, group or their religious affiliation because the main reason for the prohibition of polygamy is its potential conflict with individual liberties and freedoms.

The main problem linked with the continual practice of polygamy in America (especially among the Mormons) is the historical government negotiations with the state of Utah to abandon polygamy in exchange for the recognition of Utah as an independent American state. The Enabling Act, which recognized Utah as an independent state, captured these negotiations (Jacobson, 2011).[213]

In exchange, Utah decided to abandon polygamy, but as later years would show, this conviction only existed on paper. The Mormons continues to practice polygamy against the wishes of the federal government. The main criticism leveled against the government is its failure to acknowledge polygamy as a cultural and religious practice among the Mormons. Therefore, the government’s main weakness was its failure to secure the Mormon’s commitment to abandon the practice.

Modern beliefs and attitudes about sexual behaviors and orientations have greatly contributed to the government’s position regarding polygamy.

Jacobson (2011)[214] says that the changing public perceptions about sexuality and their slow (but gradual) acceptance of individual liberties are bound to change the government’s position regarding polygamy and other social issues (such as same sex marriages). For example, the law differentiates polygamy from other crimes such as human trafficking, prostitution, and illegal sexual acts.

Initially, this was not the case because the law categorized polygamy with other acts such as human trafficking. Therefore, over the years, the judicial interpretation of polygamy as a criminal offense has changed. According to a few scholars, its interpretation is likely to change further as Americans become more accommodating of different socio-cultural views (Jacobson, 2011).[215]

According to Dyer (1997)[216], the growing social acceptance, even if it is informal, of adultery, homosexuality, obscenity and prostitution will make it harder to condemn polygamy. Indeed, people are now starting to look at polygamy as a practice that deserves protection by American laws of freedom and liberty, as opposed to a vice that interrupts social order.

In addition, the push by the society for courts to protect the fundamental rights and freedoms of religious groups would make it easier to accommodate polygamy in America’s judicial system. To solve the dilemma surrounding polygamy, and its social challenges, it is vital for the government to consider the customs and traditions that follow those who practice polygamy today. The ignorance of these social-cultural factors may prevent the realization of a lasting solution to the issue.

The Age Question

Among the greatest challenge for the acceptance of polygamy in America is the accusation that polygamy allows for the marriage of underage girls to older men. This practice has made polygamy lose favor among Americans because some people regard it as sexual slavery and child exploitation (Jacobson, 2011).[217] Indeed, it is from such acts that well-known polygamist, Jeff Warren, was imprisoned.

The marriage of underage girls has created serious legal ammunition to attack polygamy in America. However, the marriage of underage children has often taken a racial dimension. For example, the American public regards the marriage of underage girls as an odd practice, but the society considers the marriage of Mexican underage immigrants to be a primitive culture among immigrants.

This paper will handle three different main subjects. First, this paper incorporates legal arguments regarding polygamy and its application in the American context by exploring the relation between law and society in detail. This paper will also explore the arguments about American liberties and freedoms in this context.

Secondly, this paper includes gender analyses into the research topic by exploring the role of feminism, affirmative action and other gender arguments that help in the understanding of the research topic. Issues like feminism and gender inequality (that polygamy introduces through man-to woman relationships) form an integral part of this argument. Finally, the scope of this paper also includes social arguments and perceptions regarding polygamy.

This social analysis is essential to the understanding of this paper because some scholars consider social attitudes and perceptions regarding polygamy as important indicators for the advancement of social justice in the American society. Briefly, the scope of this paper includes social analysis, legal analyses and gender analyses. Through this three-faced analysis model, the understanding of the research topic is thorough.

Research Questions

What are the reasons behind the failure to handle the polygamy dilemma in American society?
Why has American legal position on polygamy not changed in spite of changes in contemporary American societal attitudes? In what ways does the American legal system serve individual liberties and freedoms?
How could contradictions in the application of the laws lead to family pain and suffering?
How could change in gender culture affect societal attitudes towards polygamy?

The research aims

To investigate the underlying reasons why the laws prohibiting polygamy have been unchanged for centuries
To evaluate the reasons for the lack of attitude change about polygamy, in spite of the changes in contemporary American societal attitudes
To establish whether the prohibition of polygamy in the American legal system infringes on individual liberties and freedom
To find out whether the contradictions in application of polygamy laws causes family pain and suffering
To establish whether societal changes in attitude about gender affects their attitude about polygamy

Research Hypothesis

There is a linkage between applications of the polygamy laws and the rise in family trauma in the polygamist community in the United States. This study seeks to understand this relation in terms of law application and its contradictions to the family system among polygamist Mormons.

Government inconsistencies in the application of the polygamy laws create family traumas. It means that there is an insufficient understanding of the gender inequalities issues surrounding polygamy. Similarly, the links between judicial attitudes, legal decisions, and societal attitudes mean that there are potential gains in understanding polygamy in America. Moreover, more awareness of American individual positions in both society and family may lead to change in the American laws regarding polygamy.

Research Methodology

This study shall be based upon Discourse Analysis Methodology, which Foucault (1981) defines as, “a system of meaning constituted by dominant social systems and committed to their perpetuation” (p. 52).[218] He also defines discourse as “the medium which produces reality … [and] domains of objects and rituals of truth” (Foucault, 1979, p. 124).[219]

This will tell us how people talk about, describe, and represent issues, groups, or practices (in relation to power). It describes the language of dominance in the life of man. Thus, this methodology gathers and analyzes information about Fundamentalist Mormons’ plural marriage in the United States, gender issues in this relationship, court decisions, and societal attitudes, which interpret this issue.

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Hanegraaff, H. (2007). The Bible Answer Book. New York: Thomas Nelson Inc.

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Hitchcock, J. (2008). The Supreme Court and Religion in American Life. Princeton: Princeton University Press.

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Macionis, J.J. & Plummer, K. (2012). Sociology: A Global Introduction. Harlow: Pearson.

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Relations in Eighteenth-Century Chinese Fiction. Duke: Duke University Press.

Milton, D. (2009). Polygamy and Monogamy. New York: Born Again Publishing Inc.

Norgren, J. (2006). American Cultural Pluralism and Law. New York: Greenwood Publishing Group.

Peavy, L. (1996). Pioneer Women: The Lives of Women on the Frontier. Oklahoma: University of Oklahoma Press.

Rimmerman, C. (2007). The Politics of Same-Sex Marriage. Chicago: University of Chicago Press.

Scheb, J. (2010). Criminal Law and Procedure. New York: Cengage Learning.

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Websites

Anderson, S. (2010). Polygamy in America, Retrieved from
http://www.pri.org/stories/politics-society/polygamy-in-america1873.html

CBS Interactive. (2009). 400 Children Taken From Polygamist Sect. Retrieved from
http://www.cbsnews.com/2100-201_162-3997424.html

Hagerty, B. (2008). Some Muslims in U.S. Quietly Engage in Polygamy. Retrieved from http://www.npr.org/templates/story/story.php?storyId=90857818

Sawyer, D. (2012). Modern Polygamist Family: Why They’re Risking Jail. Retrieved from
http://abcnews.go.com/US/modern-polygamist-family-risking-jail/story?id=14956226#.UESiVHpqB70

Spector, J. (2011). Seeming Contradictions: Polygamy (Plural Marriage). Retrieved from http://www.wheatandtares.org/2011/08/05/seeming-contradictions-polygamy-plural-marriage/

Scott, Anderson. (2010). Polygamy in America. Retrieved from http://www.pri.org/stories/politics-society/polygamy-in-america1873.html ^
Anderson, 2010. ^
Ibid. ^
Ibid. ^
Ibid. ^
Diane, Sawyer. (2012). Modern Polygamist Family: Why They’re Risking Jail. Retrieved from http://abcnews.go.com/US/modern-polygamist-family-risking-jail/story?id=14956226#.UESiVHpqB70 ^
Sawyer, 2012, p. 3. ^
Ibid. ^
Ibid. ^
Ibid. ^
Ronald, Walker. (2001). Mormon History. Chicago: University of Illinois Press. ^
Joseph, Smith. (1903). Polygamy in the United States: Has it Political Significance? The North American Review, 176(556), 450-458. ^
Ronald, Walker. & David, Whittaker. (2001). Mormon History. Chicago: University of Illinois Press. ^
Walker & Whittaker, 2001. ^
Ibid. ^
Ibid. ^
Ibid. ^
Terryl, Givens. (2007). People of Paradox: A History of Mormon Culture. Oxford: Oxford University Press. ^
Claudia, Bushman. & Richard, Bushman. (2001). Building the Kingdom: A History of Mormons in America. Oxford: Oxford University Press. ^
Bushman & Bushman, 2001. ^
Givens, 2007. ^
Ibid. ^
Ibid. ^
Bushman & Bushman, 2001. ^
Ibid. ^
Ibid. ^
Ibid. ^
Ibid. ^
Leonard, Arrington. & Davis, Bitton. (1992). The Mormon Experience: A HISTORY OF THE LATTER-DAY SAINTS. Illinois: University of Illinois Press. ^
Walker & Whittaker, 2001. ^
Michele, Alexandre. (2007). Lessons from Islamic Polygamy: A Case for Expanding the American Concept of Surviving Spouse So As to Include De Facto Polygamous Spouses. Washington & Lee University School of Law Scholarly Commons, 64(8), 1461-1481. ^
Alexandre, 2007. ^
Walker, 2001. ^
Ibid. ^
Ibid. ^
Givens, 2007. ^
Ibid. ^
Ibid. ^
Michele, Gibson. (2010). However Satisfied Man Might Be: Sexual Abuse inFundamentalist Latter Day Saints Communities. The Journal of American Culture, 33(4), 280-293. ^
Gibson, 2010 ^
Walker, 2001. ^
Ibid. ^
Bushman & Bushman, 2001. ^
Walker, 2001. ^
Alexandre, 2007. ^
Anderson, 2010. ^
Walker, 2001. ^
Ibid. ^
John, Kincaid. (2003). Extinguishing the Twin Relics of Barbaric Multiculturalism-Slavery and Polygamy- From American Federalism. Oxford Journals, 33(1), 75-92. ^
Bushman & Bushman, 2001. ^
Walker, 2001. ^
Kincaid, 2003. ^
Givens, 2007. ^
Walker, 2001. ^
Ibid. ^
Ibid. ^
Cardell, Jacobson. (2011). Modern Polygamy in the United States: Historical, Cultural, and Legal Issues. Oxford: Oxford University Press. ^
Anderson, 2010, p. 2. ^
Joseph, Bozzuti. (2004). The Constitutionality of Polygamy Prohibitions After Lawrence V. Texas: Is Scalia a Punchline or Prophet? The Catholic Lawyer, 43(409), 409-442. ^
Don, Milton. (2009). Polygamy and Monogamy. New York: Born Again Publishing Inc. ^
Miriam, Zeitzen. (2008). Polygamy: Across Cultural Analysis. New York: Berg. ^
Jacobson, 2011. ^
Givens, 2007. ^
Walker, 2001. ^
Ibid. ^
Ibid. ^
Sarah, Gordon. (2002). The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. North Carolina: University of North Carolina Press. ^
Hank, Hanegraaff. (2007). The Bible Answer Book. New York: Thomas Nelson Inc. ^
Hanegraaff, 2007. ^
Ameenah, Bilaal. (2005). Polygamy in Islam. Riyadh: Islamic Books. ^
Gordon, 2002. ^
Ibid. ^
Carmon, Hardy. (1992). Solemn Covenant: The Mormon Polygamous Passage. Illinois: University of Illinois Press. ^
Hanegraaff, 2007. ^
John, Llewellyn. (2004). Polygamy under Attack: From Tom Green to Brian David Mitchell. New York: Agreka Books. ^
Zeitzen, 2008. ^
Ibid. ^
Hardy, 1992. ^
Ibid. ^
Ibid. ^
Ibid. ^
Jacobson, 2011. ^
Ibid. ^
Ibid. ^
Eugene, Gallagher. (2006). Introduction to New and Alternative Religions in America. New York: Greenwood Publishing Group. ^
Gordon, 2002. ^
Gallagher, 2006. ^
Philip, Kilbride. (2012). Plural Marriage for Our Times: A Reinvented Option? NewYork: ABC-CLIO. ^
John, Scheb. (2010). Criminal Law and Procedure. New York: Cengage Learning. ^
Kilbride, 2012. ^
Ibid. ^
Ibid. ^
Ibid. ^
Janet, Bennion. (2012). Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism. New York: UPNE. ^
Bennion, 2012. ^
Bilaal, 2005. ^
Craig, Rimmerman. (2007). The Politics of Same-Sex Marriage. Chicago: University of Chicago Press. ^
Rimmerman, 2007. ^
Ibid. ^
Ibid. ^
Bennion, 2012 ^
Ibid. ^
Ibid. ^
Ibid. ^
Michael, Irwin. (2004). Women and Gender in the American West: Jensen-Miller Prize Essays from the Coalition for Western Women’s History. New York: UNM Press. ^
Gallagher, 2006, p. 30. ^
Leroy, Hafen. (1958). Mormon Resistance: A Documentary Account of the Utah Expedition, 1857-1858. New York: U of Nebraska Press. ^
Hafen, 1958. ^
Steven, Danver. (2011). Revolts, Protests, Demonstrations, and Rebellions in American History: An Encyclopedia. New York: ABC-CLIO. ^
Gallagher, 2006. ^
Ibid. ^
John, Gregory. (2011). SkinHead Girl: Based on a True Story. New York: Author House. ^
Jill, Norgren. (2006). American Cultural Pluralism and Law. New York: Greenwood Publishing Group. ^
Norgren, 2006. ^
Leornard, Arrington. (1992). The Mormon Experience: A History of the Latter-Day Saints. Chicago: University of Illinois Press. ^
Arrington, 1992. ^
Ibid. ^
Norgren, 2006 ^
Ibid. ^
Arrington, 1992. ^
Ibid. ^
Ibid. ^
Norgren, 2006. ^
Alvin, Johnson. (1948). Separation of Church and State in the United States. Minnesota: U of Minnesota Press. ^
Johnson, 1948. ^
Ibid. ^
Ibid. ^
Ibid. ^
Danver, 2011. ^
Ibid. ^
Ibid. ^
James, Hitchcock. (2008). The Supreme Court and Religion in American Life. Princeton: Princeton University Press. ^
Jeff, Spector. (2011). Seeming Contradictions: Polygamy (Plural Marriage). Retrieved from http://www.wheatandtares.org/2011/08/05/seeming-contradictions-polygamy-plural-marriage/ ^
Barbara, Hagerty. (2008). Some Muslims in U.S. Quietly Engage in Polygamy. Retrieved from http://www.npr.org/templates/story/story.php?storyId=90857818 ^
Hagerty, 2008. ^
Toni, Ihara. (2008). Living Together: A Legal Guide for Unmarried Couples. New York: Nolo. ^
Ihara, 2008. ^
Gallagher, 2006, p. 27. ^
Ibid. ^
Ibid. ^
Irwi, 2004. ^
Zeitzen, 2008, p. 125. ^
Leti, Volpp. (2001). Feminism and Multiculturalism. Columbia Law Review, 101(5), 1181-1218. ^
Volpp, 2001. ^
Robert, Van Krieken, R., Habibis, D., Smith, P., Hutchins, B., Martin, G. & Maton, K. (2010). Sociology (4th ed). Pearson, Australia: French’s Forest. ^
Sarah, Song. (2007). Justice, Gender, and the Politics of Multiculturalism. Cambridge: Cambridge University Press. ^
Song, 2007. ^
Ibid. ^
Ibid. ^
Zeitzen, 2008. ^
Song, 2007. ^
Ibid. ^
Ibid. ^
Ibid. ^
Ibid. ^
Linda, Peavy. (1996). Pioneer Women: The Lives of Women on the Frontier. Oklahoma: University of Oklahoma Press. ^
Song, 2007. ^
Dorothy, Gray. (1976). Women of the West. Nebraska: U of Nebraska Press. ^
Song, 2007. ^
Gray, 1976. ^
Zeitzen, 2008. ^
Ibid. ^
Andrew, March. (2011). Is There a Right to Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification. Journal of Moral Philosophy, 8(2), 246-272. ^
March, 2011. ^
Ibid. ^
Song, 2007. ^
Ibid. ^
Gibson, 2010. ^
CBS Interactive. (2009). 400 Children Taken From Polygamist Sect. Retrieved from http://www.cbsnews.com/2100-201_162-3997424.html ^
CBS Interactive, 2009, p. 1. ^
Christina, Murray. (1994). Legal Eye: Is Polygamy Wrong. Agenda Feminist Media, 22, 37-41. ^
Adam, Kuper, A. (1985). The Social Science Encyclopedia. London: Taylor & Francis. ^
John, Macionis, & Ken, Plummer. (2012). Sociology: A Global Introduction. Harlow: Pearson. ^
Murray, 1994. ^
Zeitzen, 2008. ^
Milton, 2009. ^
Ibid. ^
Song, 2007. ^
Zeitzen, 2008. ^
Song, 2007. ^
Keith, McMahon. (1995). Misers, Shrews, and Polygamists: Sexuality and Male-Female Relations in Eighteenth-Century Chinese Fiction. Duke: Duke University Press. ^
David, Long. (2005). Culture And Customs Of Saudi Arabia. London: Greenwood Publishing Group. ^
Song, 2007. ^
David, Estlund. (1997). Sex, Preference, and Family: Essays on Law and Nature. Oxford: Oxford University Press. ^
Bennion (2012 ^
Gray, 1976. ^
Volpp, 2001. ^
Ibid. ^
Ibid. ^
Alexandre, 2007. ^
Zeitzen, 2008. ^
Ibid. ^
Alexandre, 2007 ^
Ibid. ^
Ibid. ^
Bozzuti, 2004. ^
EGL, 1923. ^
Smith, 1903. ^
Ibid. ^
Zeitzen, 2008. ^
Murray, 1994. ^
Ibid. ^
Ibid. ^
March, 2011. ^
Milton, 2009. ^
Ibid. ^
Ibid. ^
Zeitzen, 2008. ^
Gibson, 2010. ^
Ibid. ^
Kincaid, 2003. ^
Gibson, 2010. ^
Jacobson, 2011. ^
Ibid. ^
Ibid. ^
Dyer, 1997. ^
Jacobson, 2011. ^
Foucault, 1981. ^
Foucault, 1979, p. 124. ^