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Polygamy & State Regulation of Sexual Life

The New Texas Two-Step

by DAVID ROSEN

A war against Texas polygamists is underway. As of mid-April, an estimated 534 people (401 girls and boys as well as 133 women) have been removed from a compound of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) located near Eldorado, TX. This ongoing saga has captured national, even international, media attention.

State moral enforcement authorities, including the local police, Texas Rangers, Family & Protective Services officials and the FBI, flocked to this polygamist outpost with a well-intentioned desire to protect underage girls from sexual exploitation by male elders. Unfortunately, these upstanding citizens, in their zealous pursuit of immoral if not illegal sexual goings-on, might have overplayed their hand and caused more harm then good.

This is the second major confrontation between legal authorities and FLDS members. In the fall of 2006, Warren Jeffs, the sect’s leader, was arrested near Las Vegas on charges of unlawful flight to avoid prosecution. He was wanted in Utah and Arizona for illegal sexual conduct with a minor, conspiracy to commit sexual conduct with a minor and rape as an accomplice. Following a highly publicized trial, Jeffs was convicted last November, given two consecutive sentences of five years to life and is now in prison in Utah.

Shortly after the Texas incident in early April, a spokesman for the Mormon church, Michael Otterson, came out to assure America that the true Church of Jesus Christ of Latter-Day Saints had nothing to do with the Texas polygamy sect. Americans needed this reassurance because many recall that it was only about a century ago that the original true Mormon church both preached and practiced polygamy.

The action against Jeffs and his followers at the Texas compound raises serious questions as to the limits of state power to determine people’s sexual practice and forms of association. Incest and sexual abuse are at the heart of the controversy, as is alternative forms of marriage, especially as practiced by a minority group stigmatized as a religious cult. As a global, 21st century America is fashioned, we will be challenged to determine a humane sexual culture that is both socially acceptable and personally agreeable.

Incest and polygamy, two of the most threatening sexual practices, set the parameters of sexual experience for the 21st century as they did for many, many centuries earlier. These practices raise some of the deepest values of American and Western democracy: private consent and personal association. In the violation of consent and the restriction of association, the limits of personal freedom in a democracy are set.

* * *

The police first raided the FLDS retreat in west Texas on April 3rd in follow-up to a reported call by a troubled 16-years-old girl to a local domestic violence helpline. Tammy Harris, the executive director of the shelter that took the girl’s call, said that the shelter informed the state’s child protective services and local police only after the girl claimed she had given birth at 15-years of age. During the call, the girl allegedly claimed to be the seventh wife of a 50-year-old man named "Dale." "This is a very overwhelming situation," said Harris, who declined to give details of the girl’s calls. "It is something that is new to most of us."

To date, the caller has not been identified. State officials believe she is among the young women already removed from the religious colony; apparently a number of 16-year-olds have the same name, Sarah. However, she has not come forward to either admit having placed the call or having been the victim of statutory rape and giving birth to a child at 15-years.

Texas authorities have an arrest warrant out for Dale Evans Barlow, 50, the girl’s apparent husband and the child’s alleged father. He is reported to be a registered sex offender who, last year, pleaded no contest to conspiracy to have sex with a female minor in Mohave County, AZ. Most peculiar, as reported by the “New York Times,” he insists that, due to his offender status, he has neither left Arizona nor traveled to Texas.

The FLDS compound is known as the “Yearn for Zion” (or YFZ) ranch. It is 1,700-acre spread reportedly purchased clandestinely for $700,000 by a Nevada businessman as a corporate hunting retreat. The previous owners insist that they wouldn’t have sold the property to the FLDS if they knew that it would the home to a polygamist community.

In their repeated raids of the YFZ retreat, the police seized anything that wasn’t nailed down. Computer equipment, family photo albums, letters, school and medical records were removed. As reported by an ever-salacious media, the police also reported finding a limestone shrine or temple in which a bed was placed that they believe was used for ritual sex between male sect members and their apparently underage brides to consecrate a FLDS-sanctioned wedding. According to an MSNBC story, a local informant reported that the temple "contains an area where there is a bed where males over the age of 17 engage in sexual activity with female children under the age of 17."

In addition to the apparent sexual abuse of the 16-year-old that sparked the raid, police and local media report alleged marriages of girls as young as 12- or 13-years to older men. They also report numerous births among teens and that one 16-year-old girl has four children. So far, only two men have been arrested for relatively minor offenses related to the police raids. Leroy Johnson Steed is charged with tampering with physical evidence, a third-degree felony. Levi Barlow Jeffs is charged with interfering with a law enforcement official while conducting a search.

The investigation continues and more details, salacious or other, are likely to be made public. In addition, other raids in other states are likely. Besides Eldorado, TX, Jeffs’ followers have settlements in four other locations: the Hildale, UT-Colorado City, CO area; Mancos, CO; Pringle, SD; and Creston Valley, British Columbia (near the Idaho border). The FLDS has between 6,000 and 12,000 members.

* * *

Arizona’s attorney general, Terry Goddard, a Democrat, is one of the few state officials in the southwest who seems to appreciate the possible unanticipated consequences of the massive intervention at Eldorado. “We’re in uncharted territory,” Goddard said. “The last time something of this scale happened was Short Creek, and connections with the communities broke off for almost 50 years after that. I personally think we will have to redouble our efforts now.”

Today, few remember the 1953 assault on Short Creek. In its day, it was like the FBI’s 1999 assault on the Branch Davidian compound near Waco, TX, where more than 80 people were killed. For some, it has the resonance of the 1992 U.S. marshals’ killing of Randy Weaver in Ruby Ridge, ID.

In the summer of ’53, more than one hundred Arizona state police and National Guard soldiers raided the twin communities of Hildale, UT, and Short Creek, AZ (now Colorado City), over alleged polygamy practices. The settlement consisted of approximately 400 Mormon fundamentalists.

When the authorities arrived, the believers were found singing hymns in the schoolhouse while the children played outside. Everyone was taken into custody, with the exception of six people found not to be fundamentalists. In the end, more than thirty men were charged and 236 children were taken into custody. An estimated 150 children were not returned to their parents for more then two years; some children were never returned.

Mormons, both original and today’s fundamentalists, might well be America’s most persecuted religious movement. Formed out the religious zeal of the second Great Awakening, they combined a belief in divinely-inspired vigor with communitarian values and, among select males, polygamous sexual association.

As was evident while Mitt Romney was a presidential candidate, Mormans run from their past. It is hotly debated as to whether the sect’s founder, Joseph Smith, had one “true” wife, Emma, or thirty-three or forty-eight additional wives. And Brigham Young, who took over church leadership after Smith was assassinated, is reported to have had fifty-five wives and fathered fifty-six children.

The issue of Mormon polygamy became a national issue in 1862 when President Lincoln signed the Morrill Anti-Bigamy Law that made bigamy a federal offense with punishment of up to five years in jail and a $500 fine.

The Mormons formally challenged Morrill in 1874 when George Reynolds, Young’s secretary, volunteered to be charged. They insisted that the federal government had no jurisdiction to regulate marriage and the law violated the church’s First Amendment rights. To no one’s surprise, Reynolds was convicted, received a two year jail sentence and fined $500.

In 1879, Reynold’s case came before the U.S. Supreme Court which upheld his conviction and found Morrill constitutional. This decision formally established the government’s right to regulate marriage and, thus, to prohibit polygamy.

In the late-19th century, pressure over Utah statehood intensified. In 1887, the federal government passed the Edmunds-Tucker act that authorized the dis-incorporation of the church and confiscation of its assets over continuing polygamy practices. The church challenged the law but, in 1890, the Supreme Court ruled the act constitutional and also ruled (in a separate case) that the government could deny Mormons who practiced polygamy the right to vote or hold elected office.

In the midst of these developments (and reflecting the mysterious ways that the gods work), Wilford Woodruff, the church’s president, received a revelation from none other than Jesus Christ to protect the church’s practice of polygamy. However, under mounting pressure, Woodruff had yet another revelation, this one known as the "Great Accommodation" of 1890, which authorized him to suspend plural marriage. With the outlawing of polygamy, the U.S. government accepted the Utah constitution (which also granting women the right to vote) and admitted it into the Union in January 1896.

* * *

The Texas government’s raid of the FLDS compound and the seizure of 400-plus children raises profound issues as to the limits of state authority and personal freedom. It is the largest child-welfare case in U.S. history and will reverberate for many years.

Does the state have the authority, let alone the duty, to protect children from sexual abuse, even if it is only an unconfirmed allegation of abuse? Texas officials, along with most child-welfare advocates, insist that the state has both a moral and a legal obligation to intervene.

However, was the raid nothing more than a preemptive strike against a suspect religious group, like the former Texas governor’s invasion of Iraq over an alleged potential threat? Did they use the call as a pretext to undertake the raid? This remains an open question as neither the alleged victim nor her accused abuser have been identified.

State authorities seem to have not anticipated the full consequences of their actions. An increasing number of the FLDS mothers removed from the compound have begun to bitterly complain about how they were treated by state authorities. They insist that they were deceived to turn over their children, claiming that the authorities initially assured them that they would interview the kids briefly and return them. They say the police acted like goons, forcefully separating them from taking care of the children, even infants.

More than 350 lawyers from across Texas (and most apparently working pro bono) have come forward to represent the kids (as guardian ad litem) and the interest of the families. The presiding judge, District Judge Barbara Walther, will determine which kids go home and which cases go to trial, which kids will go to foster homes and group homes, live with relatives or be returned to their parents at the Eldorado compound. This process will likely drag out, like Short Creek a half-century ago, for years.

Also under consideration is the state’s age of consent law for young girls, particularly the appropriate age to engage in sex with an adult; Texas has a “Romeo and Juliet” provision for teen-age sex. Underage sex, by extension, also involves the appropriate age at which a girl can decide to have a child.

The Texas consent law has a good deal of wiggle room as to its meaning with regard to FLDS marriage practices. The state law reads as follows:

Sec. 21.11. INDECENCY WITH A CHILD.

(a) A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex …

The critical words are “not the person’s spouse.”

Making matters worse, Texas marriage laws are equally slippery. It permits adolescents 16-years and older to marry with written parental permission or an order from a state district court authorizing the marriage. Within such a tightly knit and devoted community (some say brain washed) as the FLDS, consent by both a teenage girl and her parent would not be a surprise but could well be suspect.

While not the formal subject of the raid, polygamy or plural marriage remains the dark shadow over the Texas proceedings. Can consenting adults (i.e., individuals over the age of consent) agree to live in polygamous marriages? And can their marriages be recognized by the state to secure the attendant legal and financial benefits? These are the same questions raised by gay and lesbians over same-sex marriage.

Surprising to many, there is a small but distinct polygamy-rights movement in the U.S, a movement separate and distinct from the FLDS. It also should be noted that, in addition to the FLDS, there are other fundamentalist Mormons who do not support polygamy. [see principalvoices.org]

Non-FLDS polygamists seem to fall into two broad categories, religious and secular. Christian polygamy represents a conservative, evangelical tendency. It claims to draw inspiration from the Bible and have followers from different denominations. [see christianpolygamy.info]

More secular polygamists are represented by the National Polygamy Advocate (NPA). They look to the Supreme Court’s 2003 “Lawrence” decision as the basis for plural marriage. As the Court ruled, individuals have “… the full right to engage in private [sexual] conduct without government intervention.” Mark Henkel, NPA’s spokesperson, argues that "’polygamy rights’ is the next civil rights battle."

According to some estimates, there are 37,000 men, women and children living in polygamous associations from Canada to Mexico. Some even promote a "Polygamy Day," August 19th. HBO played upon popular fascination with more mainstream polygamy in its series, "Big Love," that chronicled the lives of a polygamist and his three wives in suburbia.

For those more secular advocates of polygamy, consent among the participating adults is the defining principle of association. They oppose adult sex with children and teens, insisting that adolescent girls (even if over the age of consent or with parental consent) are not really capable of making an informed decision given the adult male’s emotional and (often) material authority and power. [see polygamy.com, pro-polygamy.com and truthbearer.com]

Their objection, like many in Texas, is over the inherent deception at the root of FLDS plural marriage. There is a growing sense that the adolescent girls, these child brides and mothers, are truly not capable of making an informed decision as to their marital and child-bearing status. There is a belief among state officials and others, but not yet proven, that these girls have been coerced into marriage.

Many are concerned that the FLDS, like David Koresh’s Branch Dividians and Jim Jones’ Peoples Temple, manipulate the girls into a form of self-inflicted marital slavery. And this marriage is, in effect, but another form of rape: Not only is the girl physically assaulted, violated, but becomes complicit in her own oppression.

Unfortunately, Texas officials overplayed their hand in their sweeping, massive intervention in the FLDS compound. In an effort to “free” the young people and mothers from an apparent threat, whether real or anticipated, they generated an equally compelling fear which might well turn the girls not only against the state’s best intentions, but their own true self-interests. Like Short Creek, the Eldorado raid will leave a bitter taste in many for years to come, furthering isolating and stigmatizing the very people who need help the most. DAVID ROSEN can be reached at drosen@ix.netcom.com.