Thursday, April 24, 2008

In What Sense is Polygamy Currently Illegal?

News stories on the FLDS case refer to them as polygamists but the legal arguments in the case seem to be based on the age of the wives, not their number. This raises an interesting question: In what sense is polygamy itself currently illegal?

The answer, I think, is that in most of the U.S, indeed most of the developed world, it isn't, even where there are laws that say it is. For the most part, restrictions on consensual non-marital sexual relationships between adults either do not exist or are not enforced. The same is true of restrictions on out of wedlock childbirth. So if three or more people want to engage in a long term sexual relationship, they are unlikely to be prosecuted for doing so.

What is illegal is marital fraud–engaging in what claims to be a legal marriage with one person without telling her that you are legally married to another. That, as I understand it, is the real substance of polygamy laws as they are currently enforced. In addition, of course, while a relationship involving more than two people may not be illegal, it also isn't legally marriage. That can matter in contexts such as inheritance, disputes over parental rights, and the like–the sort of contexts where same-sex marriage is still an issue even though same-sex relationships are legal. It also matters in the context of legal restrictions on sex by age, which frequently distinguish between marital and non-marital sex.

All of which seems to imply that the FLDS could legally conduct something close to their current marital practices if they were just a little more careful to conform to the letter, if not the spirit, of the relevant laws. To start with, they would want to locate in a state where the age of consent for marital sex is low--13 or 14--and not marry any girls younger than that age. They would have to refrain from having more than one wife younger than the age of consent for non-marital sex. A man who wanted to marry a second wife below that age would have to first legally divorce his first wife–but as long as she was at that point old enough to consent to non-marital sex he could continue living with her.

So far as I can tell, this would work, legally speaking. The remaining danger, assuming it were done openly, would come from non-legal objections to the practice which might take legal form. Texas raised its age of consent for marital sex from 14 to 16 only a few years ago. For all I know, that may have been a deliberate attempt to either get the FLDS in trouble or drive them out. And even with no legal changes, the law can be used selectively, as I think is happening in the present case, against a sufficiently unpopular minority.

It long ago occurred to me that there would be a simple way to maintain a low profile polygamous relationship in modern day America. Marry wife A, have a child by her. Divorce wife A, marry wife B, continue to live in the same neighborhood as wife A. If wife A is observed to be frequently in the house of husband and wife B–she would presumably want to maintain a legal residence somewhere else–that is easily explained by the desire of both parents to spend time with their child.

Does anyone know of counterexamples to my legal claim? Have there been people prosecuted for polygamy in recent years as a result of living and having sex with two or more people, where all of them were consenting adults?


jimbino said...

I don't think the situation is that complicated. I live in the Socialist City of Austin in the Fascist State of Texas and have long known groups of people who have lived together, either in student apartments or in Mexican or Gringo Wohngemeinshaften. Who has sex with whom in these groups has never, to my knowledge, been a legal issue, except that, nowadays, if you're a man, you will be well advised not to associated in any way, shape or form with any child who could possibly say, "He touched me."

Anonymous said...

Just curious, would it be legal for a US citizen to marry multiple women in a country were such marriages are legal?

What about sex with someone below 18 in a country where it is legal? Whilst in that country? With somebody with that nationality who is in the US?

David Friedman said...

As I understand it, an American citizen could marry multiple wives in, say, Saudi Arabia, but the U.S. would only recognize one of them as his wife when he returned.

In recent years, the U.S. has made some attempts to enforce its sex regulations on U.S. citizens abroad in the context of attacks on sex tourism, I think especially to Thailand.

I'm sure that sex with a foreigner in the U.S. would be covered by the relevant U.S. (state) law.

Anonymous said...

A few notes regarding other countries:

- In Brazil, a serious relationship will automatically be qualified as a legal marriage. For example living together and having sex would create a de jure marriage. In this case, polygamy as described might no be possible.

- In France, one may not marry religiously without first marrying legally (actually the priest is the one condemned). Of course one could marry, divorce, remarry, re-divorce, etc. I am unaware of a law that would require you to religiously divorce if you legally divorce, but without such a law, the first one is useless.

Anonymous said...

I live near Cambridge, MA, and have multiple acquaintances who are active in the "polyamorous" lifestyle.

I've long pointed out the hypocrisy that polygamy laws are only enforced against "crazy redneck" Texans who drive pickup trucks and eat BBQ, and not against "sophisticated" Cantabridgians (and Sommervillians, etc.) who drive Priuses and shop at Whole Foods.

Seth said...

Some places don't like such groups, so they write zoning laws against them (limiting the number of unrelated people who can share a household).

Anonymous said...

In addition to zoning laws the main way that polygamy is caught is in states with common law marriages. I believe that is how they finally caught Tom Green a few years ago. He had many wives, but only the youngest was ever legally married to him. But after 20 years with the first wive, he was common law married to her and married to the youngest wife -- bigamy.

Jonathan said...

See also Wikipedia on the subject.

Anonymous said...

In France, one may not marry religiously without first marrying legally (actually the priest is the one condemned). Of course one could marry, divorce, remarry, re-divorce, etc. I am unaware of a law that would require you to religiously divorce if you legally divorce, but without such a law, the first one is useless.

Well, France is a catholic country and the catholic church doesn't recognize divorce. So the second law wouldn't make sense.
Actually, what happens in France is that only the legal marriage, at the city hall, is recognized. What priests perform is some sort of religious confirmation or a blessing of the wedding. And there's no marriage license or any sort of document involved.
Most french people don't do the religious ceremony anyway.

Anonymous said...

Actually, what happens in France is that only the legal marriage, at the city hall, is recognized. What priests perform is some sort of religious confirmation or a blessing of the wedding.

That would imply that a purely religious marriage would be ignored. It's not, it's actively prosecuted.

Chad Van Schoelandt said...

"The Texas lawmaker who represents Eldorado, Representative Harvey Hilderbran, a Republican, said the authorities had been looking for a tool, if not a spark, to combat the particular form of polygamy that arrived here in 2003, when the group’s members came from Utah and Arizona.

"Mr. Hilderbran led the push in 2005 to raise the marriage age in Texas to 16 from 14, a legislative process in which Mr. Shurtleff, the Utah prosecutor, came to testify in support of the change."

- 'Texas Polygamy Raid May Pose Risk', New York Times, April 12, 2008

Given that, I find it likely that your suspicion is correct and the law was changed specifically to target the compound.

montestruc said...

"Given that, I find it likely that your suspicion is correct and the law was changed specifically to target the compound."

I have this feeling that in future constitutions for free governments, one thing should be added, that changes in law made to specifically target ethnic or religious minorities are null and void, and that the legislators who vote for them, are guilty of violation of rights under color of law.

My take anyway.

Headmistress, zookeeper said...

Legislators admit that they passed this law deliberately to forbid the practices of this religious group.

So marriage for 14 year olds was perfectly acceptable to state legislators, just not marriage for 14 y.o. FLDS members.

They also strengthened laws against polygamy, making it a felony, also specifically to target FLDS groups (This is not something we have to guess about- Hilderbran has been very proud of his work to outlaw FLDS religious practices and you can find interviews with him all over the place where he proudly explains that this is what he was doing).

Furthermore, the laws are so draconian that the only person arrested for polygamy so far is not charged with practicing it, but with teaching it.

He's not with the FLDS group, and his trial is in September. His lawyer says the law is badly worded and confusing, and offers two different penalties for precisely the same act.
"Edmonds [legislative director for the Texas District and County Attorney's Association] said some of the confusion in the bill stems from the way it was passed. Hilderbran [Harvey Hilderbran, R-Kerrville, the sponsor of the legislation] initially wrote it as a stand-alone bill that directly targeted the Eldorado sect, which began building a retreat in Schleicher County in 2004.

The original bill included language that would prevent new Texas residents from running for office within a year -- a provision aimed at preventing the sect from taking over local government offices and law enforcement agencies as it did in two neighboring cities, Colorado City, Ariz., and Hilldale, Utah.

Hilderbran's bill was never scheduled for a vote in the House, and with the legislative session coming to a close, he took provisions dealing with polygamy and teenage marriage and inserted them into an overhaul of the Department of Child Protective Services that was pending in the Senate.

Changes to the elections code were not included in the final bill, and fears that the group would dominate Eldorado politics did not come to pass."

From this blogpost

Anonymous said...

On the premise that laws and regulations suit the population they apply to, shouldn't the foreigner's age of consent apply rather than the local one?

montestruc said...

My understanding is that the current US law asserts jurisdiction on sexual activities of US citizens in foreign nations is limited to sex for pay. As in if you as an American citizen go to another nation and have sex with a prostitute under the age of 18 (of either sex) you have broken US law, even if the act was legal in that nation, but you have not broken that law if it was simple consensual sex, so long as the other party was legal by local laws.

Michael Roberts said...

I think polygamy is illegal in the same sense that a lot of things are illegal... it's illegal when someone decides they dislike you sufficiently to get you in trouble.

For example, I have seen kids get arrested for doing the same thing some 60 year olds are doing, one park bench over. The real reason for the arrest, of course, was probably the anarchy symbol on their backpack, or the piercing in their eyebrow, or the tears in thier jeans.

Of course, in this case, polygamy is insufficiently illegal (the community has adjusted to the law) so they're getting them on "child abuse," where they only need one fake call to touch off the removal of all the children from an entire community. Who needs to put someone in jail when you can remove their children and bankrupt them with legal fees? And the approach of using children's aid instead of actual arrests is disgusting, and seems to be pretty widespread.

Unknown said...

When I was at Arizona State University in the late '70"s a classmate wrote a paper about a local polygamous family. The man was a real estate salesman who made enough money to support 4 wives and their families. They lived in a house with separate sleeping areas for the families and a community kitchen and living area and the children went to the local school.

I don't remember many of the details except that one wife had been Catholic before she became part of this family.