Reprinted with permission from the American Bar Association Section on State & Local Government Law Section publication, “ABA State & Local Law News,” Vol. 31, No. 4, Summer 2008.            Guns bristling, state police swarm a polygamist community, seizing and separating hundreds of children from their mothers, under a cloud of allegations of child abuse – that young girls are being forced to marry older men against their will.  The children are placed into foster care.  Their mothers weep and tell the media that they are being discriminated against because of their religious beliefs.  State law enforcement officials reply that they must do all they can to protect society from a foul conspiracy designed to enslave young women.The date is July 26, 1953.  The place is Short Creek, Arizona.  The subjects of the raid describe themselves as “fundamentalist Mormons,” and the practice the government seeks to eradicate once and for all is polygamy – the marriage between one man and more than one woman.            In the immortal words of Yogi Berra, it appeared to be “déjà vu all over again” when, earlier this year, Texas law enforcement officials stormed the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS)’s YFZ (“Yearning For Zion”) compound in Eldorado, Texas, purportedly checking out a report of child endangerment and sexual abuse arising from that church’s polygamist lifestyle.  Legal scholars and the public await the next chapter in the saga of the strange and uncomfortable religiously-based practice of polygamy in the United States.            In order to understand the legal issues surrounding “the peculiar institution,” as early Mormons described polygamy, it is necessary to have some familiarity with its history in America.            In its 1856 national platform, the Republican Party condemned polygamy as one of the “twin relics of barbarism” – the other being slavery – in reaction to the public acknowledgement of its practice in 1852 by the Church of Jesus Christ of Latter-day Saints (also known as the Mormon Church or, for purposes of this article, the LDS Church – not to be confused with the FLDS Church).  A contentious 40 years followed, after Congress, seeking to quash the religious practice of polygamy in the then-territory of Utah – where the main body of the LDS Church ultimately settled, having been driven out of Illinois in the 1840s after the murder of church founder Joseph Smith – through a series of acts, commencing with the Morrill Anti-Bigamy Law of 1862.  The law, which annulled any act of the Legislative Assembly of the Utah Territory “pertaining to polygamy and spiritual marriage,” was aimed specifically at the Mormons.              In 1879, in Reynolds v. United States, 98 U.S. 145 (1879), the U.S. Supreme Court upheld the Morrill Act, with the declaration that every civil government had the right to determine whether monogamy or polygamy should be the law of the social life under its jurisdiction.  The Court announced its “belief/practice” test, stating that while religious adherents may believe anything they like, they may not act on those beliefs to the degree they violate the law:Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.  Id. at 167. On the heels of Reynolds, Congress passed the Edmunds Act of 1882 and the Edmunds-Tucker Act of 1887, both intended to strengthen the 1862 Morrill Anti-Bigamy Act.  The Edmunds Act disenfranchised polygamists (rendered them ineligible to vote) and declared them unable to hold public office, disqualified any person who believed in the principle of polygamy from jury duty, declared polygamy a felony and defined polygamous living – termed “unlawful cohabitation” – as a misdemeanor.  It also gave public officials the power to deprive Mormons of their civil rights without a trial.  The Edmunds-Tucker Act went further, requiring that wives testify against their husbands, mandating that they be forced to court without a subpoena and depriving women of the franchise.  It also disincorporated the LDS Church and escheated its property to the federal government.Shortly after the Supreme Court upheld the Edmunds-Tucker Act in Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890), the LDS Church announced that its practice of polygamy would cease, and that neither polygamy nor plural marriage would be accepted nor taught among church members.  As a condition of statehood six years later, the Utah constitution provided that while “perfect toleration of religious sentiment is guaranteed,” nonetheless “polygamous or plural marriages are forever prohibited.”  Utah Constitution, Art. III, Sec. 1.  Currently, LDS members anywhere found engaged in the practice are promptly excommunicated.  Nonetheless, despite massive public relations efforts on the part of the Church, polygamy is still often associated in the public mind with the LDS Church, over 100 years since it was officially abandoned.The end of polygamy in the LDS Church was not the end of American polygamy, of course.  Some LDS church members refused to bend to the Church’s anti-polygamy “manifesto” and were excommunicated or split on their own accord.  These “fundamentalists” went underground, with various communities, “clans,” congregations or churches, each claiming the right of succession to the authority of God with regard to polygamous marriages.  The Eldorado, Texas community of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) had its origins in the border region of Utah and Arizona, where the 1953 raid took place.  Members and leaders of the FLDS moved to Texas around 2004, built a temple and isolated themselves from society. In the wake of the 1953 Short Creek raid, government officials have been reluctant to prosecute polygamists for the mere fact that their lifestyle, based on religious belief, violates the law.  Most legal actions involving polygamists have arisen in the context of child abuse prosecutions (for sexual relations involving underage girls), welfare fraud (where polygamist wives claim entitlement to benefits as single mothers without spousal support) or other common-law criminal violations, such as child abuse – not solely bigamy/polygamy.  For example, FLDS prophet Warren Jeffs was successfully prosecuted in southern Utah in 2007 for being an accessory to rape, arising from his officiating at a marriage of an underage bride to an older male adherent to the faith (who was not, incidentally, prosecuted for rape) – not for being a polygamist.The legal issues surrounding polygamy are legion.  For example, the Utah Chapter of the ACLU adopted a position that polygamy was constitutionally protected religious exercise, and the attorneys general of Utah and Arizona have generally declined to enforce statutes aimed at stopping the practice.  Academics have suggested that 19th century anti-polygamy laws cannot withstand judicial scrutiny under current First Amendment Establishment Clause precedent.  Some suggest that the right of privacy — the foundation for striking down abortion prohibitions and homosexual sodomy laws — should extend to polygamy.  Others have suggested that polygamy prohibitions are outdated, given modern society’s toleration of all sorts of cohabitation arrangements (married, unmarried, homosexual ,etc.), that may or may not implicate state sanction or involvement.Polygamy has been the subject of a number of more recent cases upholding the validity of anti-polygamy laws in the face of constitutional challenges.  In Potter v. Murray City, 585 F.Supp.1126 (D.Utah 1984), for example, a district court upheld the firing of a police officer whose religiously-based polygamy (two wives and five children) violated his sworn duty to uphold the U.S. and Utah Constitutions.  The officer’s employment record was otherwise exemplary.  Noting that Reynolds had never been overturned, the court found that the “compelling state interest found in the maintenance of the system of monogamy upon which its social order is now based” justified the anti-polygamy provisions of the Utah constitution.  The court rejected the officer’s argument that he had a Constitutionalright to privacy in his polygamous lifestyle that precluded his termination.  The court found that Potter’s difficulties did not stem from “privately cohabitating with others,” (which, by implication, may have been protected, although technically illegal), but because his polygamous marital practice “was in its essential nature a public one.”  In short, Potter held himself out to the public as a felon.  “To say under such circumstances that this did not affect his value and performance as a police officer would be unrealistic.” In affirming the decision, the Tenth Circuit noted that despite subsequent clarifications of the free exercise clause of the First Amendment since Reynolds, it was still valid.  Furthermore, Utah’s interest in monogamy had been demonstrated by its having “a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.”  Potter v. Murray City, 760 P.2d 1065 (10th Cir. 1985).  Because “monogamy is inextricably woven into the fabric of our society,” and is “the bedrock upon which our culture is built,” the court stated that it could not extend the constitutional right of privacy so far that it protected polygamous marriage.State v. Green, 99 P.3d 820 (Utah 2004), also upheld Utah’s anti-bigamy statutes, relying on Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) and Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990), to hold they were facially neutral and had only an incidental effect on polygamist religious practice.  The court further recognized a state interest in monogamy and in “preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.”  The court concluded that the bigamy statutes protected polygamists from incest, sexual assault, statutory rape and failure to pay child support – crimes that the court found were “not unusually attendant to the practice of polygamy.” Critics of Green questioned how the court could determine that the anti-bigamy law had only an incidental effect on polygamist religious practice if one of its purposes was to protect polygamists from the effects of crimes that the court associated with that practice.  They also questioned how anti-polygamy legislation could survive under changing constitutional privacy right norms  – especially as articulated in Lawrence v. Texas, 539 U.S. 558 (2003)(invalidating homosexual sodomy statutes).The court addressed those questions in State v. Holm, 137 P.2d 726 (Utah 2006), wherein FLDS member Rodney Holm was convicted for bigamy and unlawful sexual conduct with a 16-year-old woman – his third (religious) “wife.”  Holm and his third “wife” had undergone a religious ceremony, which both acknowledged did not enjoy state sanction.  Without revisiting Green, the court simply acknowledged that it had already held that Utah’s anti-bigamy statute was a neutral law of general applicability, and further noted that it complied with the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, and the Religious Land Use and Institutionalized Persons Act of 2000, 114 Stat 804.  As to the privacy analysis, the court concluded that the type of fundamental liberty interest recognized in Lawrence simply did not extend to polygamous conduct.  While the intimate acts engaged in by adult homosexuals were private, polygamy, in contrast, “implicates the public institution of marriage … .”  The court went on to state that “the formation of relationships that are marital in nature is of great interest to this State, no matter what the participants in or the observers of that relationship venture to name the union.”  Part of this interest arises from the fact that by the issuance of a marriage license, “the State becomes a third party to the marital contract.”  Thus, the state has a substantial interest in criminalizing an “unlicensed second marriage.”  Accordingly, the court found neither constitutional equal protection concerns nor any infringement of the constitutional right of association in the Utah bigamy statute.In a strong dissent as to the bigamy conviction, Chief Justice Christine Durham  argued that the state’s interest did not extend to those who enter a religious union with a second person but who do not claim to be legally married.  She compared their situation to those of the “commonplace” cohabitation of other unmarried couples – even those in which one of the partners may still be legally married to someone else, but who are not prosecuted for bigamy.  Justice Durham asserted that the only difference among these situations was that religiously-motivated polygamists engaged in a religious ceremony.  Their marital status would be indistinguishable, however.  The imposition of criminal penalties on those who deviate from the state’s accepted (monogamous) social structure for religious reasons did not further any interest in protecting marriage, according to Justice Durham.  To the contrary, she reasoned, marriage was not implicated at all in a relationship in which neither party claimed a state-sanctioned union.Finally, in August, 2007 the Tenth Circuit issued Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007), which involved a facial challenge to Utah’s anti-bigamy statute based on privacy grounds.  In Bronson, the plaintiffs, an already married polygamist, brought suit after having been denied, based on the anti-bigamy statute, an additional marriage license – a situation different from Holm, where no one sought sanction for a second marriage.  The court held that the plaintiff lacked standing to bring the action, since he could not demonstrate any credible “fear of criminal prosecution” in light of published accounts by the Utah Attorney General that he did not intend to prosecute polygamy per se, but rather focus law enforcement efforts on crimes within polygamous communities involving child abuse, domestic violence and fraud.At this point, then, the state of the law as it pertains to polygamy is unsettled.  Although statutes designed to stifle the practice have been upheld consistently since the 1870s, it is clear that polygamy – especially religiously-based polygamy – is not going to go away.  While attorneys general claim the right to enforce polygamy laws, they have been reluctant to do so without the presence of some other factor, such as child endangerment, sexual abuse or welfare fraud.  Meanwhile, the actions of police in tearing children away from their mothers, while elected officials make solemn pronouncements on the evils of a religious organization that abuses and enslaves young females through polygamous practice, leave observers with the haunting feeling that they’ve seen this all before – and will no doubt see it all again.Randall K. Edwards, former chief deputy City Attorney in Reno, Nevada, is currently in private practice in Salt Lake City, Utah.