Polygamy In Family Court: A Resource For Judges Dealing With An Unfamiliar Family Structure

• Date: 01 December 2017
• Published date: 01 December 2017
• DOI: http://doi.org/10.1111/jfcj.12100

Polygamy In Family Court: A Resource For

Judges Dealing With An Unfamiliar Family

Structure

By Billy Gage Raley

ABSTRACT

Cases concerning polygamous households can present difficult challenges for

family courts. Though a growing number of Americans practice polygamy, the life-

style still remains shrouded in mystery. Many polygamists are religious (and some-

times racial) minorities that have suffered from discrimination. The most influential

judicial precedents concerning polygamy come from the nineteenth century and are

tinged with religious and racial stereotypes, which can make judges uncomfortable

with citing those decisions. There is a need for reliable, unprejudiced, and up-to-date

information about polygamy that judges can cite while maintaining an image of

objectivity and impartiality. This Article seeks to provide that resource. It provides

information about the evolutionary influences that shape polygamy, how polygamy

is practiced in the modern world, and common problems affecting polygamous

households that judges should be aware of.

Key words: polygamy, spousal relations, stepparents, paternal support, child neglect and abuse.

INTRODUCTION

Though polygamous marriages are not legally-recognized in any state, there are

many Americans who believe polygamy is permissible under a higher law. The U.S. has a

substantial population of fundamentalist Muslims and Mormons who practice polygamy.

1

Billy Gage Raley is an American law professor at Hanyang University School of Law in Seoul, South

Korea. He may be reached at billyraley@hanyang.ac.kr and gageraley@gmail.com

1

See Kirsten Scharnberg & Manya A. Brachear, Polygamy (Utah’s open little secret),CHICAGO TRIB.,

Sept. 24, 2006, http://articles.chicagotribune.com/2006-09-24/news/0609240351_1_warren-jeffs-polyga

mists-utah-man (stating that Utah’s attorney general and other experts estimate there are 40,000 Mormon

polygamists across the Western U.S.); Barbara Bradley Hagerty, Some Muslims in U.S. Quietly Engage in Poly-

gamy, NPR, May 27, 2008, http://www.npr.org/templates/story/story.php?storyId=90857818 (“No one

knows how many Muslims in the U.S. live in polygamous families. But according to academics researching

the issue, estimates range from 50,000 to 100,000 people.”).

Juvenile and Family Court Journal 68, No. 4

©2017 National Council of Juvenile and Family Court Judges

5

Considering that Islam and Mormonism are the two fastest-growing religions in the Uni-

ted States,

2

this number will likely continue to grow in the future.

Despite the surging growth of polygamy in recent years,

3

“[p]ractitioners of plural

marriages tend to live in the shadows.”

4

This is largely due to the fact that “the practice

of polygamy has a long-standing and unsurprising reputation as distasteful”

5

in the Uni-

ted States, starting with the persecution of Mormons in the mid-nineteenth century.

6

Though attitudes towards polygamy have softened somewhat in recent years

7

and crimi-

nal sanctions against polygamy are now largely unenforced,

8

many polygamists still feel

that they are subject to discrimination.

9

Even apart from the practice itself, many polygamists face discrimination due to

their religion and race. In regard to religion, Mormons are still viewed with suspicion by

many Americans,

10

and Muslims are also subject to discrimination.

11

In regard to race/

2

Amelia Thomson-DeVeaux, Study Shows that Mormons Are the Fastest-Growing Religious Group in the

U.S., PRRI, May 2, 2012, http://www.prri.org/spotlight/study-shows-that-mormons-are-the-fastest-grow

ing-religious-group-in-the-u-s/ (stating that, according to the organization’s most recent 10-year survey,

“Mormonism [was] the fastest-growing religious group in the United States” with 2 million new adherents,

and “Muslims came in second, with growth of 1 million adherents”).

3

See, e.g., James Brook, Utah Struggles With a Revival of Polygamy, N.Y. TIMES, Aug. 23, 1998 (stating

that “the number of Utahans living in polygamous families has increased tenfold in the last 50 years”); Bar-

bara Bradley Hagerty, Philly’s Black Muslims Increasingly Turn to Polygamy, NPR, May 28, 2008, http://

www.npr.org/templates/story/story.php?storyId=90886407 (“Several scholars say [polygamy is] growing

among black Muslims in the inner city —and particularly in Philadelphia, which is known for its large

orthodox black Muslim community.”).

4

Tom Gorman, Utah Drags Polygamy Out of Shadows and Into Court, L.A. TIMES, May 16, 2001,

http://articles.latimes.com/2001/may/16/news/mn-64178.

5

Hope Marie Deutsch, Marrying Polygamy into Title VII,16RUTGERS J. L. & RELIGION 145, 146

(2014).

6

“The birth of polygamy in the United States can be traced back to 1830,” the year the Mor-

mon church was established. “Public opposition to the practice quickly formed,” ultimately culminating

in “violent clashes” and the flight of Mormons to “desolate territories” in the west. Deutsch, id. at 147-

48. For a comprehensive review of anti-Mormon initiatives in the nineteenth century, see generally R.

Lex Sears, Punishing the Saints for Their Peculiar Institution: Congress on the Constitutional Dilemmas, 2001

UTAH L. REV. 581 (2001).

7

See, e.g., Frank Newport, Americans Continue to Shift Left on Key Moral Issues,GALLUP, May 26, 2015,

http://www.gallup.com/poll/183413/americans-continue-shift-left-key-moral-issues.aspx (finding that the

percentage of Americans who say that polygamy is “morally acceptable” has increased from 7% in 2001 to

16% in 2015).

8

See, e.g., James Brook, Utah Struggles With a Revival of Polygamy, N.Y. TIMES, Aug. 23, 1998 (stating

that, despite the fact that 40,000 Utahans live in polygamist households, a policy of “‘don’t ask, don’t tell’

means that sheriffs and judges turn a blind eye to polygamy, a felony that has not been prosecuted in almost

half a century”); Andrea Useem, What To Expect When You’re Expecting a Co-Wife,S

LATE, July 24, 2007,

http://www.slate.com/articles/life/faithbased/2007/07/what_to_expect_when_youre_expecting_a_cowife.

html (“American Muslim polygamists are unafraid of prosecution, and they sometimes seem almost puz-

zlingly unconcerned with the illegality of their conjugal life.”).

9

Elisabeth A. Sheff, Children, Stigma, and Polyamorous Families,PSY.TODAY, Oct. 24, 2013, https://

www.psychologytoday.com/blog/the-polyamorists-next-door/201310/children-stigma-and-polyamorous-fa

milies.

10

See, e.g., Rich Barlow, Why We’re Afraid of Mormons: BU-trained scholar says uninformed prejudice

abounds,BUT

ODAY, July 5, 2012, https://www.bu.edu/today/2012/afraid-of-mormons/.

11

See, e.g., PEW RESEARCH CENTER,LOW APPROVAL OF TRUMP’STRANSITION BUT OUTLOOK FOR HIS PRESI-

DENCY IMPROVES 25 (2016), available at http://assets.pewresearch.org/wp-content/uploads/sites/5/2016/12/

08135748/12-08-16-December-political-release.pdf (“A large majority of Americans (82%) say Muslims in

the United States face discrimination –with 57% saying they face ‘a lot’ of discrimination.”).

6 | JUVENILE AND FAMILY COURT JOURNAL