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Polygamy On Trial


Tom Green sits in a Provo, Utah, courtroom defending himself against a charge of polygamy because he has five wives and 25 children. At the core of Green’s defense is that part of the First Amendment to the American Constitution that guarantees the "free exercise" of religion — written by our Founders in response to religious persecution that had plagued Europe for centuries, and from which their ancestors had escaped. The case’s importance transcends the question of polygamy’s place in Twenty First Century America.

Green’s prosecution — some say persecution — has its roots in the infamous Nineteenth Century case of Reynolds v. United States. Utah was not yet a state, but merely a territory. Congress had enacted an Anti-polygamy Act in 1862 (Ch. 126, 12 Stat. 501). George Reynolds, a devout Mormon, had discharged his religious duty — under Mormon law not his option, but his duty — by entering into a bigamous marriage. Having thus rendered unto God, Reynolds was indicted, tried, and convicted by Caesar.

Reynolds appealed from the Supreme Court of the Territory of Utah to the Supreme Court of the United States, whose opinion reeks with blatant racism. For example: "Polygamy has always been odious among the Northern and Western Nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people." In this assertion the Court ignored the sad fact that Europeans had hardly been paragons of religious toleration and that their political systems never possessed anything even approaching our First Amendment. Moreover, the Supreme Court was dismissing out-of-hand a practice accepted by every major religion save Christianity.

The federal prosecutors argued that the Free Exercise Clause of the First Amendment protects only "belief," not "conduct" — a specious distinction for at least two reasons. First, textually the constitutional guarantee is of religious "exercise," not belief. Second, a "belief-conduct" dichotomy is indefensible not only because belief and conduct are often inseparable, but because conduct, expression, and exercise are integral to all major religions. Indeed, carried to its logical extreme, a "belief-conduct" dichotomy would permit government to outlaw virtually all religious conduct, including baptisms, sacraments, Bar Mitzvahs, circumcisions, and perhaps even ceremonial weddings.

It was also suggested that anti-polygamy legislation could be justified because of the state’s duty to protect children. The problem with this argument was that no evidence was produced to support the notion that the child of a polygamous marriage is worse off than a child born illegitimate or one with divorced or separated parents. Indeed, there is evidence from other cultures — among them the very African ones disdained by the Reynolds Court — that unlike situations of absentee parents, children of polygamous marriages not only know the identity of their parents but are likely to be reared in a pious, loving atmosphere with a tightly-knit supportive setting.

The Court next raised a rhetorical question: "Suppose that one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?" Although the shallowness of this "argument" is easily revealed — sacrificing one’s self is a purely voluntary act, polygamy is non-coercive, and certainly no one dies — its implication is why the Green case transcends questions of polygamy.

Green and his five wives and 25 children raise a question central to the ongoing battle between the individual and the state, today exemplified by such "personal autonomy" issues as the use of drugs, the possession of guns, and the right to die. The drama unfolding today in that Provo, Utah courtroom raises what is perhaps the central political question of today: Can members of a free society engage in any conduct they wish, until their actions collide with the rights of others — and is it government’s proper role to stand aside until those rights of others are actually violated? Perhaps the Green case will tell us, when higher courts are asked to revisit Reynolds v. United States.