NOTES:
BIG LOVE* OR BIG PROBLEM:
SHOULD POLYGAMOUS
RELATIONSHIPS BE A FACTOR IN
DETERMINING CHILD CUSTODY?
Lauren C. Miele**
Abstract: The recent raid of the Yearning for Zion Ranch of the
Fundamental Church of the Latter-day Saints thrust the issue of child
custody in polygamous families into the forefront of the nation’s attention.
The Supreme Court first upheld regulations of polygamous “marriages” in
Reynolds v. United States, stating that the regulation of harmful religious
conduct did not violate the Free Exercise Clause of the First Amendment. It
was not until the recent Supreme Court decision in Lawrence v. Texas that
some believed polygamists may have a valid argument for the legalization of
the practice. This Note examines the issue of polygamy in relation to the best
interests of the child standard and argues that the behaviors generally
associated with this religious practice will almost always be a factor when
determining child custody in these family situations. The Note further argues
that despite polygamists’ initial hopes when the Lawrence decision came
down, it is a narrow holding which courts are reluctant to extend and as a
result the practice will remain illegal and thus continue to be a factor in child
custody determinations.
* The title of this Note borrows the title of a popular HBO television series about a
polygamist family living in Utah. The show “explore[s] the evolving institution of marriage
through this typically atypical family.” HBO.com, Big Love, http://www.hbo.com/biglove
/about/index.html (last visited Dec. 2, 2008).
** Candidate for Juris Doctor, New England School of Law (2009). B.A., English and
Political Science, cum laude, Merrimack College (2006). I would like to thank my family
for their constant love, support, and guidance throughout law school and throughout my life.
105
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INTRODUCTION
In his controversial dissent in Lawrence v. Texas, Justice Scalia wrote
the Texas statute at issue, “undeniably [sought] to further the belief of its
citizens that certain forms of sexual behavior are ‘immoral and
unacceptable,’ the same interest furthered by criminal laws against
fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” 1 He
went on to say: “[The majority’s decision] effectively decrees the end of all
morals legislation. If, as the Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate state interest, none of the abovementioned laws can survive a rational basis review.” 2
With the recent raid of the Yearning for Zion Ranch of the
Fundamentalist Church of Jesus Christ of Latter-day Saints leading to one
of the largest custody disputes in U.S. history, the issue of polygamy was
thrust to the forefront of the nation’s attention. 3 Polygamy is never far from
the public’s attention, however, with shows like HBO’s popular Big Love
and the occasional episode of Law and Order addressing the topic. 4 This
past summer Senator Harry Reid even introduced legislation proposing a
national task force on polygamy as he was concerned over the high levels
of crime in polygamous communities; he cited the sources of his concern to
be the abuse of women and children as well as the increased rates of
financial crimes including welfare fraud, tax evasion, and extortion. 5 His
fear is not an unfounded one as it is estimated that anywhere from twenty
to fifty thousand Americans are current members of Mormon
1. Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (citation
omitted). For further discussion of Lawrence v. Texas, see infra Part I.B.3.a.
2. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting) (emphasis in original).
3. See, e.g., Ralph Blumenthal, Additional Children Removed at Polygamist Ranch in
Texas, N.Y. TIMES, Apr. 6, 2008, at A27, available at 2008 WLNR 6456967; Jennifer
Dobner, Girls Taught to Fear World Polygamists: All Who Leave Face Damnation, CHI.
TRIB., Apr. 12, 2008, at 3, available at 2008 WLNR 6870960; Michelle
Roberts, Polygamous Sect Reaches Deal for Children’s Return: Mormon Group
Wins Order from Texas High Court, BOSTON GLOBE, May 31, 2008, available at
http://www.boston.com/news/nation/articles/2008/05/31/polygamous_sect_reaches_deal_for
_childrens_return/; see infra Part III.C.2.
4. See, e.g., Jennifer Dobner, Sect’s Leader May Hold His Grip: Ties Strong
Inside Polygamist Church, BOSTON GLOBE, Aug. 31, 2006, available at
http://boston.com/news/nation/articles/2006/08/31/sects_leader_may_hold_his_grip/;
Michael Janofsky, Young Brides Stir New Outcry on Utah Polygamy, N.Y. TIMES, Feb. 28,
2003, at A1, available at 2003 WLNR 5218293; Utah Polygamists Allowed to Adopt, N.Y.
TIMES, Mar. 29, 1991, at A10, available at 1991 WLNR 3092049.
5. Gretel C. Kovach, Polygamous Sect to Defend 6 Members in Court and Its Practices
on Capitol Hill, N.Y. TIMES, July 24, 2008, at A22, available at 2008 WLNR 13768471.
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POLYGAMY IN CHILD CUSTODY DISPUTES
107
Fundamentalist groups and believe in polygamy. 6 One estimate places the
number of polygamous homes in Utah alone at fifty thousand. 7
Polygamy has always been regulated by laws in all states within the
United States. 8 The Supreme Court first upheld the constitutionality of
these statutes in Reynolds v. United States, stating that the regulation of
harmful religious conduct did not violate the Free Exercise Clause of the
First Amendment. 9 It was not until the Supreme Court’s decision in
Lawrence v. Texas in 2003 that Mormon Fundamentalists again saw a
possibility for the legalization of polygamy. 10 It does not appear as though
these hopes will be realized, however, as no court has agreed that the
Lawrence holding extends to polygamous marriages. 11 Since polygamy
remains illegal, it follows that courts are still able to consider it as a factor
when determining the best interests of children involved in custody
disputes. 12
This Note will examine whether Justice Scalia’s fears expressed in
Lawrence are well-founded when applied to the best interests of the child
standard 13 in custody disputes where one or both parents are engaged in a
polygamous lifestyle. 14 It will assert that because of the negative impact
upon the children of polygamous households, polygamy will almost always
be a factor when considering the best interests of the child in custody
disputes. 15 This Note will further argue that because the issue here is
religious conduct and not merely religious belief, the government is
6. IRWIN ALTMAN & JOSEPH GINAT, POLYGAMOUS FAMILIES IN CONTEMPORARY
SOCIETY 2 (1996). It should be acknowledged that while other groups practice polygamy,
this Note’s focus is on the Mormon Fundamentalists’ practice of polygamy within the
United States.
7. D. KELLY WEISBERG & SUSAN FRELICH APPLETON, MODERN FAMILY LAW 196 (3d
ed. 2006).
8. See Reynolds v. United States, 98 U.S. 145, 165 (1878); see infra Part I.B.2.a.i.
9. U.S. CONST. amend. I. (“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .”); see Reynolds, 98 U.S. at 166-67.
10. See infra Part III.
11. See infra Part III.
12. See infra Part III.C.
13. See infra Part II.
14. Technically the term to be used here is “polygyny” which is “[t]he condition or
practice of having more than one wife at the same time.” BLACK’S LAW DICTIONARY 1198
(8th ed. 2004). However, this article will use the term “polygamy” to refer to this practice
because it is the term more commonly associated with the practice of having multiple wives,
although it is also applicable to women having multiple husbands. See id. at 1197. It should
also be noted that Fundamental Mormonists prefer the term “plural marriage.” RICHARD N.
OSTLING & JOAN K. OSTLING, MORMON AMERICA: THE POWER AND THE PROMISE 59 (1999).
15. See infra Part III.C.
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justified in regulating polygamous relationships. 16
Part I will give a brief history of Mormon Fundamentalist polygamy
within the United States. 17 Part II will discuss the best interests of the child
standard, courts’ treatment of the best interests of the child standard when
religion is a factor, and give a brief overview of parental rights. 18 Part III
will argue that the holding of Lawrence v. Texas does not apply to
polygamous marriages and therefore polygamy regulations are still
constitutional. 19 Part III will also argue that because of the continuing
illegality of polygamy, the inherent values of polygamous relationships,
and the treatment of the women involved, polygamy will generally have a
negative impact upon the children involved. 20 As a result, polygamy will
almost always be a factor in the determination of parental rights. 21
I. The History of the Mormon Church Within the United States and
Its Treatment of Polygamy
A. The History of the Mormon Church and the Origination of
Polygamy in the United States
Polygamy has a long history, dating back to the time of Solomon,
who had 700 wives and 300 mistresses. 22 In the United States, polygamy is
generally associated with the Mormon religion despite the fact that the
Mormon Church renounced the practice in 1890. 23
According to The Book of Mormon, many ancient prophets wrote the
scriptures within it on gold plates that were later quoted and abridged by
the prophet and historian Mormon. 24 After Mormon had completed the
writing, he presented the plates to his son Moroni, who then added some
writings of his own and subsequently hid the plates. 25
Mormons believe that on September 21, 1823, the resurrected Moroni
appeared to Joseph Smith and later the gold plates were delivered to him. 26
Smith was then able to translate the plates through a divine gift from
16.
17.
18.
19.
20.
21.
22.
23.
24.
See Reynolds v. United States, 98 U.S. 145, 164 (1878).
See infra Part I.
See infra Part II.
See infra Part III.
See infra Part III.C.
See infra Part III.C.
WEISBERG & APPLETON, supra note 7, at 195.
See, e.g., id. at 196.
Introduction to THE BOOK OF MORMON (Joseph Smith trans., The Church of Jesus
Christ of Latter-day Saints 1981) (1830).
25. Id.
26. Id.
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POLYGAMY IN CHILD CUSTODY DISPUTES
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God. 27 These scriptures were intended to be a second testament of Jesus
Christ and are meant to accompany the Bible as God’s word. 28 The
scriptures depict the migration of the Israelites to the Americas and claim
this is where the Mormons became the ancestors of the American Indians;
they also describe the resurrected Christ’s ministry in the New World. 29
On April 6, 1830, Smith and five of his followers instituted the
Church of Jesus Christ of Latter-day Saints 30 in Fayette, New York. 31
Smith’s followers believed he was a prophet and the movement soon
multiplied as thousands of people became willing to follow Smith
anywhere. 32
Although the practice of polygamy became a central belief of the
Mormon Church, it was not mentioned in the first publication of The Book
of Mormon in 1830. 33 Smith did not disclose his “revelation” regarding
polygamy to his followers until 1843. 34 Most historians agree an
unpublished revelation regarding plural marriage existed as early as 1831,
but The Book of Mormon, published in 1830, was distinctly
monogamous. 35 Smith had multiple wives prior to 1843, leading some to
conclude he believed in the practice of polygamy before his 1843
revelation. 36 Some say Smith was aware that his advocacy of polygamous
lifestyles would not be easy for the majority of American society to accept,
and it was only after he was divinely warned that he finally accepted and
promoted plural marriage. 37 By the time of Smith’s assassination in 1844, it
was estimated that Smith had anywhere between twenty-eight and eighty-
27.
28.
29.
30.
Id.
See OSTLING & OSTLING, supra note 14, at 2.
Id.
Hereinafter this article shall refer to the Church of Jesus Christ of Latter-day Saints
by its more common name, the Mormon Church. R. Michael Otto, “Wait ‘til Your Mothers
Get Home”: Assessing the Rights of Custodial and Adoptive Parents, 1991 UTAH L. REV.
881, 881 n.2.
31. MARY BATCHELOR ET AL., VOICES IN HARMONY: CONTEMPORARY WOMEN
CELEBRATE PLURAL MARRIAGE 12 (2d prtg. 2001).
32. OSTLING & OSTLING, supra note 14, at 1-2. Smith was also the first president of the
Mormon Church. Otto, supra note 30, at 887. It is a central belief of the Mormon Church
that God communicates with modern-day prophets. Id. at 881 n.2.
33. OSTLING & OSTLING, supra note 14, at 2.
34. Otto, supra note 30, at 887.
35. ALTMAN & GINAT, supra note 6, at 24-25; see also JOSEPH SMITH ET AL., THE
DOCTRINE AND COVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS §132
(The Church of Jesus Christ of Latter-day Saints 1981) (1830).
36. See BATCHELOR ET AL., supra note 31, at 14.
37. See id.
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four wives. 38 The Mormon Church, however, did not publicly acknowledge
the practice of polygamy as official church doctrine until 1852. 39
B. Legal Treatment of the Practice of Polygamy
Today, polygamy in the United States has both criminal and civil
consequences for polygamous Mormons and non-Mormons alike. 40 Civilly,
there is a limit to an individual’s ability to contract into a second marriage
because it is void if that individual still has a valid first marriage. 41
Criminally, states impose penalties on those who enter into multiple
marriages. 42 Utah goes one step beyond this in its statute and also prohibits
purporting to marry another through cohabitation in a manner similar to
marriage while legally married to another. 43
1. Congressional Regulation of Polygamy
By 1856, polygamy was associated with Mormonism and was
considered to be a national problem. 44 In an attempt to remedy the
situation, Congress enacted the Morrill Anti-Bigamy Act of 1862, which
was the first legal prohibition of “bigamy and adultery.” 45 The Act stated
that any person who had a living spouse and married “any other person,
whether married or single, in a territory of the United States” was guilty of
bigamy. 46 This law was largely unenforced in Utah because many of the
judges and jury members were Mormon. 47 In 1874, Congress again tried to
address the issue of polygamy through the Poland Act, which put
jurisdiction of these matters in the hands of federal appointees and took it
away from local probate courts. 48
At this point in time, the Mormon Church leaders asked George
38. OSTLING & OSTLING, supra note 14, at 58. For further discussion of Smith’s wives
see infra Part III.C.1.
39. ALTMAN & GINAT, supra note 6, at 32.
40. WEISBERG & APPLETON, supra note 7, at 196.
41. See id.
42. Id.
43. UTAH CODE ANN. § 76-7-101(1) (2007) (“A person is guilty of bigamy when,
knowing he has a husband or wife or knowing the other person has a husband or wife, the
person purports to marry another person or cohabits with another person.”); see also
WEISBERG & APPLETON, supra note 7, at 196.
44. See Morrill Anti-Bigamy Act, ch. 126, 12 Stat. 501 (1862) (repealed 1910); see also
OSTLING & OSTLING, supra note 14, at 57.
45. OSTLING & OSTLING, supra note 14, at 70.
46. Morrill Anti-Bigamy Act, ch. 126, 12 Stat. 501 (1862) (repealed 1910).
47. See OSTLING & OSTLING, supra note 14, at 70.
48. Id.
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POLYGAMY IN CHILD CUSTODY DISPUTES
111
Reynolds to volunteer in a test case, which became Reynolds v. United
States. 49 In 1878, the Supreme Court of the United States issued its
decision in Reynolds, which upheld Reynold’s bigamy conviction. 50 The
Court partially based its decision on society’s views of immorality and
what it considered to be the inherent evils of polygamous marriages. 51
After Reynolds, however, it was still difficult to prosecute polygamist
marriages because only the most devoted Mormons were allowed to
witness them, and Utah law prohibited a wife from testifying against her
husband. 52
To remedy the problems with civil prosecution of polygamous
marriages, Congress issued the Edmunds Act in 1882, which made
“unlawful cohabitation” a ground for criminal prosecution. 53 The Edmunds
Act removed the evidentiary obstacles standing in the way of polygamy
convictions. 54 A person could be convicted of bigamy upon proof that he
was living with more than one woman. 55 This could be done without proof
of marriage, which mostly eliminated the problem of the prohibition of
wives testifying against their husbands. 56 A juror could be challenged
based on his or her involvement in polygamy, and polygamists were not
allowed to vote or hold office. 57
Congress then went one step further with the Edmunds-Tucker Act of
1887, which made the spouse of a person charged with bigamy a competent
witness. 58 It allowed for the attachment of a witness 59 without a subpoena
49. Reynolds v. United States, 98 U.S. 145, 167-68 (1878).
50. Id.
51. See id. at 166-67; see also Michael G. Myers, Comment, Polygamist Eye for the
Monogamist Guy: Homosexual Sodomy . . . Gay Marriage . . . Is Polygamy Next?, 42 HOUS.
L. REV. 1451, 1465 (2006).
52. Otto, supra note 30, at 892; see, e.g., Miles v. United States, 103 U.S. 304, 315-16
(1880) (reversing Miles’s bigamy conviction because it was largely based on the testimony
of his second wife).
53. Edmunds Act, ch. 47, 22 Stat. 31 (1882) (repealed 1983); see also OSTLING &
OSTLING, supra note 14, at 71; Otto, supra note 30, at 892-94.
54. Otto, supra note 30, at 893.
55. Id.
56. Id.
57. Id.
58. Edmunds-Tucker Act, ch. 397, 24 Stat. 635 (1887); see also Otto, supra note 30, at
893. The Edmunds-Tucker Act was implicitly repealed upon Utah’s admission into the
Union. Id. at 893 n.60. A competent witness is “[a] witness who is legally qualified to
testify.” BLACK’S LAW DICTIONARY 1633 (8th ed. 2004).
59. To attach is “[t]o become attributed; to adhere.” BLACK’S LAW DICTIONARY 136 (8th
ed. 2004).
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when it became clear that a witness would not obey one. 60 All marriages
had to be certified in the territory’s probate court, and all prospective male
voters had to take an oath swearing they were not polygamists and would
not encourage others to practice polygamy. 61 The Act dissolved the
church’s emigration fund that helped Mormons in foreign countries
immigrate to the United States and provided a way for the Government to
gain control of church property. 62 It also required that prospective jurors,
voters, and those wishing to hold public office take an oath of loyalty to
United States laws. 63 As a result, the Mormon Church leaders decided to
abandon the practice of polygamy. 64 On September 25, 1890, the Mormon
Church adopted what is commonly referred to as “The Manifesto,” in
which the Mormon Church formally renounced the practice of polygamy
and pledged to follow the laws of the United States. 65 Then President of the
Mormon Church, Wilford Woodruff, advised Mormons to refrain from the
practice of polygamy. 66 For the majority of the country, polygamy was no
longer an issue after the enactment of “The Manifesto.” 67 The same could
not be said for Utah. 68
Following “The Manifesto,” the number of plural marriages in the
church declined, but they did not end altogether. 69 Some members of the
church viewed “The Manifesto” as merely a result of political pragmatism
and therefore religiously invalid. 70 The church had taught polygamy for
four decades and it was associated with achieving heavenly status, so these
members could not justify the doctrine being discarded so easily. 71 These
groups separated from the main church, called themselves Mormon
Fundamentalists, and continued the practice of polygamy. 72
Mormon Fundamentalists believe that John Taylor, president of the
Mormon Church in 1886, had a religious experience in which Joseph Smith
and Jesus Christ appeared to him and instructed him to continue the
60.
61.
62.
63.
64.
Otto, supra note 30, at 893.
Id. at 893-94.
Myers, supra note 51, at 1464.
Id.
See Jeffrey Michael Hayes, Comment, Polygamy Comes Out of the Closet: The New
Strategy of Polygamy Activists, 3 STAN. J. C.R. & C.L. 99, 103-04 (2007).
65. Id.; Otto, supra note 30, at 895.
66. See Otto, supra note 30, at 895.
67. Id.
68. Id. at 896.
69. See ALTMAN & GINAT, supra note 6, at 37.
70. Hayes, supra note 64, at 104.
71. See ALTMAN & GINAT, supra note 6, at 37.
72. Hayes, supra note 64, at 104.
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POLYGAMY IN CHILD CUSTODY DISPUTES
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practice of polygamy despite pressure not to. 73 Polygamists were gradually
cut off from the Mormon Church, but a small group of fundamentalists kept
the practice going. 74 In 1912, Lorin Woolley made his first public
statement regarding Taylor’s visitation. 75 In 1929, when he was the only
survivor granted special religious authority by Taylor, Woolley published
his statement about Taylor’s visitation and became the leader of the
Mormon Fundamentalists. 76
In 1904, Reed Smoot, a monogamist Mormon, was elected to the
United States Senate, causing already mounting tensions to escalate. 77 His
seat was challenged and the matter was addressed in three years of
hearings, which revealed many Mormons, including two church leaders,
continued to marry multiple wives. 78 Smoot’s seat was eventually
confirmed, but not before the church was forced to issue a second
Manifesto in 1904; it stated that anyone who entered into a polygamous
relationship would be excommunicated from the church. 79 Later, church
leaders who married additional plural wives were removed from their
positions, and some were also excommunicated if they continued to
endorse the practice. 80 Polygamous families that decided to stay together
after the Manifesto were stigmatized, and plural marriages began to
decline. 81
2. The Supreme Court’s Stance on Polygamy
a. The First Amendment and the Free Exercise Clause
i. Reynolds v. United States
The First Amendment to the United States Constitution states:
“Congress shall make no law respecting an establishment of
religion . . . .” 82 The Supreme Court’s first significant decision regarding
exemptions to the Free Exercise Clause was Reynolds v. United States. 83
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
See ALTMAN & GINAT, supra note 6, at 43-44.
Id.
See BATCHELOR ET AL., supra note 31, at 28.
Id.
See id. at 25.
Id.; see also ALTMAN & GINAT, supra note 6, at 37-38.
See ALTMAN & GINAT, supra note 6, at 38.
Id.
See BATCHELOR ET AL., supra note 31, at 25.
U.S. CONST. amend. I.
Reynolds v. United States, 98 U.S. 145, 166-67 (1878); KATHLEEN M. SULLIVAN &
114
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Reynolds v. United States involved George Reynolds, whom Mormon
Church leaders asked to test Congress’s and Utah’s anti-bigamy
legislation. 84 Reynolds was then charged with bigamy, in violation of Utah
law. 85 At trial, Reynolds proved that he was a member of the Mormon
Church and a follower of its doctrines. 86 He had accepted the doctrine of
the church “‘that it was the duty of male members of [the] church,
circumstances permitting, to practice polygamy.’” 87 He also believed that
the practice of polygamy was of divine origin and that failing to practice
would result in his being denied salvation. 88 He also proved he received
permission from recognized church leaders to enter into his second
marriage. 89
The trial court instructed the jury to find Reynolds guilty if he had
“‘deliberately married a second time’” and went on to instruct the jury
about the women and children being the ‘“innocent victims of this
delusion.’” 90 Based upon the trial judge’s instructions, the jury convicted
Reynolds of bigamy. 91 Reynolds then sued out of writ of error, 92
challenging several issues, but the United States Supreme Court chose to
focus on Reynolds’s First Amendment challenge. 93
The issue the Supreme Court considered on appeal was whether one’s
religious beliefs could serve as a justification for committing a criminal
act. 94 Chief Justice Waite explicitly looked at whether this law fell under
the First Amendment’s limitation on Congress’s ability to pass a law
prohibiting the free exercise of religion. 95 The Chief Justice concluded that
the Amendment was meant to prohibit Congress from legislating matters
merely concerning religious opinion, but Congress could regulate the
actions that were in violation of “social duties or subversive of good
GERALD GUNTHER, CONSTITUTIONAL LAW 1521 (15th ed. 2004).
84. Reynolds, 98 U.S. at 146; OSTLING & OSTLING, supra note 14, at 70.
85. Reynolds, 98 U.S. at 146.
86. Id. at 161.
87. Id. (quoting the record).
88. Id.
89. Id.
90. Id. at 150 (quoting the record).
91. See Keith E. Sealing, Polygamists Out of the Closet: Statutory and State
Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free
Exercise Clause, 17 GA. ST. U. L. REV. 691, 710 (2001).
92. A writ of error is “[a] writ issued by an appellate court directing a lower court to
deliver the record in the case for review.” BLACK’S LAW DICTIONARY 1642 (8th ed. 2004).
93. See Reynolds, 98 U.S. at 150-51.
94. See id. at 162.
95. Id.
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POLYGAMY IN CHILD CUSTODY DISPUTES
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order.” 96
The Reynolds Court also noted that polygamy had always been
recognized as a crime in every state, and that courts had the authority to
oversee polygamy violations. 97 The regulation at issue by Congress was
permissible because, while marriage is an important aspect of society and is
a “sacred obligation,” it is also a civil contract regulated by law. 98
Therefore, in the Court’s opinion, the statute at issue was within Congress’s
legislative power. 99
The only issue then remaining for the Court was whether those who
practiced polygamy as part of their religion were exempt from the
statute. 100 If Mormon polygamists were to be exempted from the law, they
would not be found guilty under the statute, while others who were
nonreligious polygamists would still be considered guilty under the
statute. 101 This would create a new element in criminal law, and the Court
was not willing to do this. 102 The Court concluded that while laws could
not interfere with religious beliefs and opinions, it is permissible to regulate
religious actions; 103 therefore, the Court found Congress could regulate
religious practices. 104
Further, the Court held that if actions could be excused based upon
religious beliefs, it would have the effect of making religious doctrines
superior to law; if that were the case, government would exist solely in
name. 105 Because Reynolds was aware that his second marriage was illegal,
it was presumed that he broke the law intentionally. 106
Cantwell v. Connecticut later modified the Reynolds distinction
between religious belief and religious action. 107 It suggested that religious
conduct was not completely beyond the scope of the Free Exercise
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
Id. at 164.
Id. at 165.
Id.
Reynolds, 98 U.S. at 166.
Id.
Id.
See id.
See id.
Id.
See Reynolds, 98 U.S. at 166-67. Chief Justice Waite provided examples of religious
practices, such as human sacrifices and widows burning themselves on their husbands’
funeral piles, that would go unregulated should the Court find an exception here. Id. at 166.
106. Id. at 167.
107. See Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); Reynolds, 98 U.S. at
166-67; SULLIVAN & GUNTHER, supra note 83, at 1522.
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Clause. 108 “[The Free Exercise Clause] embraces two concepts,—freedom
to believe and freedom to act. The first is absolute but, in the nature of
things, the second cannot be.” 109 The Court went on to say that when the
state is regulating religious conduct it cannot “unduly. . .infringe the
protected freedom.” 110 Since Cantwell, the Court has continuously upheld
regulations that have adversely impacted members of certain religions. 111
3. The Fourteenth Amendment: A New Avenue for
Polygamist Rights or Another Dead End?
a. Lawrence v. Texas
After the Supreme Court’s decision upholding Congress’s right to
legislate regarding religious actions in Reynolds v. United States, it
appeared as though Mormon Fundamentalists had run out of options. Over
100 years later, some believed Lawrence v. Texas finally opened a new
avenue of hope for recognition of polygamists’ rights. 112
The Supreme Court’s decision in Lawrence v. Texas is one of the
most recent decisions in a long line of cases involving the right of
privacy. 113 It relied heavily on Planned Parenthood of Southeastern
Pennsylvania v. Casey to overturn its decision in Bowers v. Hardwick. 114
108.
109.
110.
111.
See Cantwell, 310 U.S. at 303-04.
Id.
Id. at 304.
See SULLIVAN & GUNTHER, supra note 83, at 1522; see, e.g., Prince v.
Massachusetts, 321 U.S. 158, 158-59 (1944) (upholding a law which made it illegal for a
minor to sell pamphlets in public places, even if the child was a Jehovah’s Witness and his
faith considered it a religious obligation); Braunfeld v. Brown, 366 U.S. 599, 599 (1961)
(upholding Pennsylvania’s Sunday closing laws against a challenge from Orthodox Jews
who had to close their stores on Saturdays and claimed the law would force them to lose
their businesses). But see Sherbert v. Verner, 374 U.S. 398, 398 (1963) (upholding a
Seventh-day Adventist’s challenge to South Carolina’s state compensation law which
denied her unemployment benefits after she was fired for refusing to work Saturdays).
112. See Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting).
113. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (establishing a right to
privacy within marital relationships); Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding that
the right to privacy extends beyond the marital relationship and is in fact an individual
right); Roe v. Wade, 410 U.S. 113 (1973) (stating that the right to privacy extends to a
woman’s choice to have an abortion under the Due Process Clause of the Fourteenth
Amendment, but this right is subject to limitation by the state); Carey v. Population Servs.
Int’l, 431 U.S. 678 (1977) (applying the right to privacy to minors as well as adults);
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (reaffirming the liberty
protected by the Due Process Clause).
114. See Lawrence, 539 U.S. at 571-74 (discussing Planned Parenthood’s holding that
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Lawrence involved an incident that occurred in Houston, Texas when
police officers went into an apartment responding to a report of a weapons
disturbance. 115 Upon their entrance, the police observed Lawrence and
another male engaging in a sexual act. 116 The two men were then arrested,
charged, and later convicted of being in violation of a Texas law. 117
The petitioners challenged the law based on both Due Process and
Equal Protection grounds, 118 and also claimed the Supreme Court’s
decision in Bowers v. Hardwick should be overturned. 119 Bowers v.
Hardwick had a substantially similar fact pattern to Lawrence. The only
significant difference was that the Georgia statute prohibited sexual
conduct between homosexual and heterosexual couples. 120 The Supreme
Court in Bowers viewed the issue as whether there is a fundamental right to
engage in homosexual conduct and upheld the Georgia law, deciding there
is no such right. 121 The Lawrence Court took a different approach and
viewed the issue as whether individuals possess the right to enter into
private relationships and act accordingly within the privacy of their own
homes. 122
The majority of the Lawrence Court determined that adults may enter
into personal relationships and act accordingly inside the privacy of their
homes and “still retain their dignity as free persons.” 123 Laws regulating
homosexual conduct did not appear on the books prior to the 1970s. 124 The
issue in Lawrence was whether a state could use its power to enforce antihomosexual views on society as a whole through the use of criminal
liberty is controlling, not the moral code); see also Planned Parenthood, 505 U.S. at 851
(“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of
the universe, and of the mystery of human life.”).
115. Lawrence, 539 U.S. at 562. The police’s ability to enter the apartment under the
Fourth Amendment was not challenged. Id. at 563.
116. Id. at 562-63.
117. Id. at 563; see generally TEX. PENAL CODE ANN. § 21.06(a) (Vernon 2003) (“A
person commits an offense if he engages in deviate sexual intercourse with another
individual of the same sex.”).
118. The Fourteenth Amendment states: “[n]or shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
119. Lawrence, 539 U.S. at 564.
120. Lawrence, 539 U.S. at 566; see Bowers v. Hardwick, 478 U.S. 186, 187-88 (1986).
In Bowers v. Hardwick, a police officer entered Hardwick’s residence and observed
Hardwick engaged in sexual conduct with another male. Id.
121. Lawrence, 539 U.S. at 566-67; Bowers, 478 U.S. at 190, 196.
122. See Lawrence, 539 U.S. at 567.
123. Id.
124. Id. at 568-70.
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statutes. 125 The Court determined that “[e]quality of treatment and the due
process right to demand respect for conduct protected by the substantive
guarantee of liberty are linked in important respects . . . .” 126 When
homosexual conduct is made criminal, it follows that homosexuals will be
subjected to discrimination. 127
The Court determined that society’s view of homosexuality as
immoral was not a good enough reason to uphold a law prohibiting the
practice. 128 The decisions heterosexual individuals make regarding their
personal relationships are considered to be a protected liberty interest under
the Due Process Clause. 129 The issue in Lawrence did not involve public
conduct or whether the government had to give formal recognition to
homosexual relationships. 130 Nor did it involve minors or prostitution. 131
Instead, Lawrence involved two consenting adults engaging in typical
homosexual conduct. 132 In Lawrence, the Supreme Court overturned
Bowers and held that the petitioners were “entitled to respect for their
private lives.” 133
While the majority based its analysis on the Due Process Clause of
the Fourteenth Amendment, Justice O’Connor would have preferred to
base the decision on the Equal Protection Clause of the Fourteenth
Amendment. 134 In her concurrence, O’Connor advocated that the Texas
statute treated homosexuals unequally under the law. The Texas statute was
aimed at homosexuals as a class, and therefore an Equal Protection analysis
should apply. 135 If O’Connor’s Equal Protection analysis had been applied,
it would have given the Lawrence decision a broader impact as it would not
merely apply to private conduct, which is the result of the majority’s
holding, but would apply to public conduct as well. 136
125. Id. at 567. In Romer v. Evans, the Supreme Court struck down class-based
legislation directed at homosexuals under the Equal Protection Clause because an
amendment to Colorado’s Constitution denied them protection under the State’s antidiscrimination laws. Id. at 574; Romer v. Evans, 517 U.S. 620, 635-36 (1996).
126. Lawrence, 539 U.S. at 575.
127. Id.
128. Id. at 577. “‘Our obligation is to define the liberty of all, not to mandate our own
moral code.’” Id. at 571 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850
(1992)).
129. See id. at 573-74.
130. Id. at 578.
131. Id.
132. Lawrence, 539 U.S. at 578.
133. Id.
134. Id. at 579 (O’Connor, J., concurring).
135. See id. at 581, 583.
136. See id. at 583.
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Marriages are considered to be a social contract and therefore fall
under the scope of public, not private, conduct. 137 O’Connor’s Equal
Protection analysis could plausibly be extended to polygamous marriages,
giving polygamists a much stronger argument that state regulation should
not apply to their subsequent marriages. 138
II. Determining Child Custody When One of the Parents is a
Practicing Polygamist.
A. The Supreme Court’s Position on Parental Rights.
As a result of the illegality of polygamy, the practice is an issue for
some courts in determining child custody. Determining child custody is
always difficult, but this difficulty is compounded when the court has to
consider a controversial religious practice such as polygamy. 139
The Supreme Court has addressed the issue of parental rights several
times in the last century. 140 This line of cases has helped to define the
relationship between the fundamental rights of parents to raise their
children, including their right to involve their children in their religious
practices, while balancing the state’s interest in protecting children from
harm. 141
1. Meyer v. Nebraska
The issue of parental rights first came to the forefront of the Supreme
Court’s attention in 1923, in the case of Meyer v. Nebraska. 142 In Meyer,
the plaintiff was a teacher who was convicted of violating a Nebraska law
that prohibited teaching a child to read German before passing the eighth
grade. 143 The Court held that under the Due Process Clause of the
Fourteenth Amendment, the parents had a right to employ the plaintiff to
teach their child. 144 The Court went further, stating in order for the state to
137. See Joseph Bozzuti, Note, The Constitutionality of Polygamy Prohibitions After
Lawrence v. Texas: Is Scalia a Punchline or a Prophet?, 43 CATH. LAW. 409, 435 (2004).
138. See id.
139. See, e.g., Shepp v. Shepp, 906 A.2d 1165, 1166 (Pa. 2006); Sanderson v. Tryon, 739
P.2d 623, 627 (Utah 1987).
140. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321
U.S. 158 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923).
141. See generally Wisconsin, 406 U.S. 205; Prince, 321 U.S. 158; Pierce, 268 U.S. 510;
Meyer, 262 U.S. 390.
142. Meyer, 262 U.S. 390.
143. Id. at 396-97.
144. Id. at 400.
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intervene, there has to be a legitimate state interest and in this instance
there was not one present. 145
2. Pierce v. Society of Sisters
The Supreme Court next addressed the issue of parental rights in
Pierce v. Society of Sisters. 146 Here, the statute at issue required parents or
guardians to send their children between the ages of eight and sixteen to
public schools, and if they did not comply, it was a misdemeanor
offense. 147 The plaintiff was a private school that was losing income
because of student withdrawal as a direct result of this Oregon law. 148 The
Court held that this law unreasonably interfered with the parents’ liberty
interest in determining their children’s upbringing and education. 149
3. Prince v. Massachusetts
Prince v. Massachusetts was the first time the Supreme Court
addressed the fundamental right to parent a child when the First
Amendment right to free exercise of religion also came into play. 150 In
Prince, the school attendance officer previously warned the defendant
against permitting her children to sell religious pamphlets on public street
corners for five cents each. 151 Subsequently, the children wanted to
accompany their mother while she went out to distribute the pamphlets, and
she relented. 152 The defendant later appealed from her conviction of
violating Massachusetts’ child labor laws through acts she claimed were
the rightful exercise of her religious beliefs. 153 She argued that not only
was her liberty interest at stake, but also her children’s. 154
The Supreme Court stated that decisions concerning custody, care,
and nurture of children are primarily the parent’s because there is a “private
realm of family life which the state cannot enter.” 155 The Court went on to
add, however, that family life is not beyond the scope of regulation because
145.
146.
147.
148.
149.
150.
See id. at 403.
Pierce, 268 U.S. 510.
Id. at 530-31.
See id. at 531-32.
Id. at 534-35.
Prince v. Massachusetts, 321 U.S. 158 (1944). The Free Exercise Clause of the First
Amendment states: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .” U.S. CONST. amend. I.
151. Prince, 321 U.S. at 161-62.
152. Id. at 162.
153. Id. at 159.
154. See id. at 164.
155. Id. at 166.
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“neither rights of religion nor rights of parenthood are beyond
limitation.” 156 It is also true that the state has more authority over children
than it does over adults; therefore, simply because the state cannot regulate
the same form of adult activity does not mean it cannot regulate that
conduct when children are involved. 157 The Court stated that “it does not
follow [that parents] are free, in identical circumstances, to make martyrs
of their children before they have reached the age of full and legal
discretion when they can make that choice for themselves.” 158
Massachusetts determined that this regulation was necessary to accomplish
its legitimate objective of protecting the children from dangerous activities
in streets and public places where they could encounter harm. 159 The Court
concluded that, “with reference to the public proclaiming of religion, upon
the streets and in other similar public places,” the state’s power to “control
the conduct of children reaches beyond the scope of its authority over
adults, as is true in the case of other freedoms, and the rightful boundary of
its power has not been crossed in this case.” 160
4. Wisconsin v. Yoder
In Wisconsin v. Yoder, the Supreme Court again addressed the issue
of parental rights when the right to free exercise of religion was at issue. 161
Wisconsin had a compulsory school attendance statute which required all
parents, including the Yoders, an Amish couple, to send their children to
public or private school until age sixteen. 162 The Yoders objected to this
statute because under their core religious belief, it was unacceptable to
expose their children to “worldly” influences through public schooling after
their children had passed the eighth grade. 163 The Supreme Court found
that sending Amish children to outside schools would endanger the free
exercise of their parents’ religious beliefs. 164 The State argued that its
compelling interest in children’s education overrode parents’ religious
beliefs, but the Court held that Amish children differed from other children
because Amish children, in accordance with ancient tradition, would be
156. Id. at 166. “The right to practice religion freely does not include liberty to expose
the community or the child to communicable disease or the latter to ill health or death.” Id.
at 166-67.
157. See Prince, 321 U.S. at 168.
158. Id. at 170.
159. Id.
160. Id.
161. See Wisconsin v. Yoder, 406 U.S. 205, 207-09 (1972).
162. Id. at 207.
163. See id. at 210-11.
164. Id. at 219.
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employed under the guidance of their parents on the farm. 165
The Court went on to state that here they were not dealing with the
children’s rights, only the parents’. The Court held that it is a higher
standard “when the interests of parenthood are combined with a free
exercise claim of the nature revealed by this record, more than merely a
‘reasonable relation to some purpose within the competency of the State’ is
required to sustain the validity of the State’s requirement under the First
Amendment.” 166
The line of cases discussed above establishes the fundamental right to
parent under the Due Process Clause of the Fourteenth Amendment, but
also makes clear the right to determine the upbringing of one’s children is
not absolute. 167 The State may regulate when it has a legitimate,
compelling interest, but its burden of proof becomes higher when a parent
is claiming a violation of his or her fundamental right to parent under his or
her First Amendment right of free exercise of religion. 168
B. Determining Custody: The “Best Interests of the Child”
Standard and Religion
The fundamental right to parent may become an issue when a parent
is claiming he or she has a right to raise his or her child in a religion society
deems controversial. 169 The current trend in determining child custody is
through use of the “best interests of the child” standard. 170 This standard
aims to be gender-neutral and is discretionary based on a list of factors. 171
These factors are usually statutory and are based on the child’s needs. 172
Factors a court may consider are the child’s age, primary caretaker status,
physical abuse, race, and religion. 173
1. How Much Weight Should Be Given to a Parent’s
Religion?
Judges have traditionally given some weight to parents who attend
church regularly because of the belief that it is a sign of morality and that a
165.
166.
167.
168.
169.
See id. at 221, 228-29.
Id. at 233 (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925)).
See Pierce, 268 U.S. at 534-35; Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).
See Yoder, 406 U.S. at 236; Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).
See, e.g., Shepp v. Shepp, 906 A.2d 1165, 1166-67 (Pa. 2006); Sanderson v. Tryon,
739 P.2d 623, 627 (Utah 1987).
170. See generally WEISBERG & APPLETON, supra note 7, at 729.
171. Id.
172. Id.
173. Id. at 729-32, 736; KENT GREENAWALT, RELIGION AND THE CONSTITUTION 422
(2006).
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life including religion will benefit the child. 174 The more difficult question
is how much weight to give religion. This is especially true when one
parent claims that the other’s religious practices will harm their child
“according to broad cultural standards of healthy development.” 175
The majority of states do not include religion in their statutory factors
to consider in custody determinations. 176 Despite this, many judges do
consider religion when making their decisions regarding the children’s best
interests. 177 Judges may only consider religion in certain circumstances and
may not interfere with one’s religious freedom or preference of one religion
over another. 178 Often, parents of different religions argue their child
should be raised in one faith and not the other. 179 The Establishment Clause
does not allow judges to weigh the merits of one religion over another, but
they may examine the effect a certain religion has on the child’s
development. 180 This is especially true if there is potential harm in
exposing the child to competing religious practices. 181
Judges deal with issues of religion in various ways. One approach
judges may use is to disregard religious issues altogether, but this may not
work out well for the child. 182 Another approach ignores the relationship
between religious practice and the developmental effects on and treatment
of the child, but this in turn may violate the parent’s First Amendment
rights under the Free Exercise Clause. 183 A final and more practical
approach only takes the religious choices into account if there are negative
effects on the child which are likely to be significant. 184 A parent’s
involvement in a religious group may not be a threshold matter, but it could
be an important factor when a judge is making the final decision regarding
child custody. 185
174. GREENAWALT, supra note 173, at 422.
175. Id.
176. See ROBERT H. MNOOKIN & D. KELLY WEISBERG, CHILD, FAMILY, AND STATE:
PROBLEMS AND MATERIALS ON CHILDREN AND THE LAW 563 (5th ed. 2005).
177. Id.
178. See id.
179. Id.
180. See U.S. CONST. amend. I; MNOOKIN & WEISBERG, supra note 176, at 563-64; see,
e.g., Ficker v. Ficker, 62 S.W.3d 496, 499 (Mo. 2001); Garrett v. Garrett, 527 N.W.2d 213,
221 (Neb. 1995); Hoedebeck v. Hoedebeck, 948 P.2d 1240, 1242 (Okla. Civ. App. 1997).
181. See MNOOKIN & WEISBERG, supra note 176, at 564.
182. See GREENAWALT, supra note 173, at 425.
183. See id.
184. See id.
185. Id. at 429.
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C. Courts’ Treatment of Polygamy
Courts’ treatment of polygamy in child custody and parental rights
cases has varied over the years. In the 1950s, the Utah Supreme Court
found it was completely acceptable to terminate parental rights based solely
on the fact that the parents were practicing polygamists. 186 Since then, the
general trend is to only weigh the parents’ polygamous lifestyle as one
factor in cases involving parental rights. 187
1. In re State Interest of Black
In re State Interest of Black is a case involving termination of parental
rights to children who were born as a result of an illegal polygamous
marriage. 188 The couple was charged with neglecting their eight
children. 189 The Utah Supreme Court decided to terminate their parental
rights based solely upon the parents’ polygamous relationship. 190 The court
stated that it did not want this illegal and immoral practice to influence the
children because it was generally concerned for the children’s welfare. 191
The court went on to add that: “[t]he practice of polygamy, unlawful
cohabitation and adultery are sufficiently reprehensible, without the
innocent lives of children being seared by their evil influence.” 192
2. Sanderson v. Tryon
In 1987, the Utah Supreme Court again addressed the issue of
parental rights of polygamous parents, this time in a custody dispute. 193
The couple had three children, two of whom were born during their
polygamous relationship, and one of whom was born afterwards. 194 The
mother later unlawfully “remarried” into another polygamous relationship,
while the father abandoned the practice and teaching of polygamy. 195 The
mother received initial custody of the children, but the trial court
subsequently gave custody to the father. 196 In making this decision, the
186. See In re State Interest of Black, 283 P.2d 887, 913 (Utah 1955).
187. See, e.g., In re Adoption of W.A.T., 808 P.2d 1083, 1085-86 (Utah 1991);
Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987).
188. See Black, 283 P.2d at 888.
189. Id. at 889.
190. See id. at 909.
191. See id.
192. Id. at 913.
193. See Sanderson v. Tryon, 739 P.2d 623, 624 (Utah 1987).
194. Id.
195. Id.
196. See id. at 624-25.
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court did not consider the best interests of the children, but instead removed
the children from the mother’s custody based solely on her polygamous
lifestyle. 197
The case ultimately went to the Utah Supreme Court, which
determined the fact that the mother was involved in a polygamous lifestyle
was not in and of itself determinative. 198 The court stated that in
determining child custody, a court must consider the best interests of the
child, the parents’ past conduct, and moral standards. 199 A plurality of the
court went on to hold that “a determination of the children’s best interests
turns on numerous factors, each of which may vary in importance
according to the facts in the particular case.” 200 Therefore, a polygamous
relationship should only be one factor when determining the best interests
of the child. 201
3. Shepp v. Shepp
In 2006, the Supreme Court of Pennsylvania also addressed the issue
of child custody where one of the parents is a practicing polygamist. 202
Here, the court specifically addressed the extent to which courts may limit
parents’ promotion of their religious beliefs to their children when those
beliefs, if acted upon, would constitute illegal conduct. 203 Shortly after the
parties in the case divorced, the Mormon Church excommunicated the
father because he was a Mormon Fundamentalist who believed in the
practice of polygamy. 204 The father also testified before the trial court
stating that he would not be opposed to having multiple wives. 205
The Supreme Court of Pennsylvania concluded that it had the power
to prohibit a parent from promoting religious beliefs to his children if the
religious beliefs result in illegal conduct. 206 The court went on to state,
however, that pursuant to Wisconsin v. Yoder, a court could do this only
when it was first established that promoting this conduct would put the
197.
198.
199.
200.
201.
Id. at 625.
Id.
Sanderson, 739 P.2d at 626.
Id. at 627.
Id. Four years later, the Utah Supreme Court addressed the issue of the right of
polygamous parents to adopt; a plurality of the Court again held that the couple’s polygamy
may be one factor in making the determination of whether they are fit parents, but it is not
determinative. In re Adoption of W.A.T., 808 P.2d 1083, 1085-86 (Utah 1991).
202. Shepp v. Shepp, 906 A.2d 1165, 1166 (Pa. 2006).
203. Id.
204. Id. at 1166.
205. Id. at 1167.
206. Id. at 1174.
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physical health, mental health, or safety of the children at risk. 207 In Shepp,
the court did not find a constitutional basis for the state to intrude on the
father’s speech because none of these risks were present. 208
ANALYSIS
III. Does Lawrence Create a Viable Argument for Polygamists
Seeking Custody?
After the Supreme Court issued its opinion in Lawrence, some
speculated as to whether the holding would also apply to polygamous
marriages, thus rendering polygamy regulations unconstitutional. 209 If the
holding extended to polygamous marriages as well, then courts could no
longer consider polygamous relationships as a factor when determining the
best interests of the child because polygamous marriages would no longer
be considered illegal conduct. Since the Lawrence opinion, some courts
have addressed the issue, leading to the conclusion that this is not a
plausible argument. 210
A. Addressing the Issue of Polygamy Post-Lawrence
In 2006, the Utah Supreme Court addressed the issue of polygamous
rights in State v. Holm after the Supreme Court’s decision in Lawrence v.
Texas. 211 Rodney Holm was a practicing polygamist and in 1986 he
married his first wife, Suzie Stubbs. 212 Subsequently, he married Wendy
Holm and when he was thirty-two he married Suzie’s sixteen-year-old
sister, Ruth. 213 Ruth had two children by the time she was eighteen. 214
Holm was later arrested in Utah and charged with and convicted of bigamy
207. Id.
208. Shepp, 906 A.2d at 1174.
209. Cf. Alyssa Rower, The Legality of Polygamy: Using the Due Process Clause of the
Fourteenth Amendment, 38 FAM. L.Q. 711, 711 (2004) (stating the current nationwide
controversy over the legalization of same-sex marriage also puts the traditional bans against
polygamy into question); James Askew, Note, The Slippery Slope: The Vitality of Reynolds
v. U.S. After Romer and Lawrence, 12 CARDOZO J.L. & GENDER 627, 646-49 (2006)
(arguing after the Supreme Court decisions in Lawrence v. Texas and Romer v. Evans, Utah
must show a rational relationship between a legitimate government interest and polygamy in
order for the state constitution’s anti-polygamy clause to remain valid).
210. See, e.g., State v. Holm, 137 P.3d 726, 742-43 (Utah 2006); State v. Green, 99 P.3d
820, 834 (Utah 2004).
211. Holm, 137 P.3d at 726.
212. Id. at 730.
213. Id.
214. Id.
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and unlawful sexual conduct with a sixteen- or seventeen-year-old. 215
Holm claimed the liberty interest discussed in the holding of
Lawrence was broad and therefore protected his polygamous behavior from
state intervention. 216 He also argued that the “purporting to marry” section
of the Utah statute applied only to legally recognized marriages. 217 The
Utah Supreme Court disagreed, stating it is clear that the “purporting to
marry” section of the statute applies to religious marriages as well. 218
Citing State v. Green, the court also found that the statute did not violate
the Free Exercise Clause because a state may infringe upon a person’s right
to free exercise as long as the law is neutral, affecting everyone equally,
which imposes the burden. 219
The court went on to distinguish Holm from Lawrence. Unlike
Lawrence, Holm involved a minor and also the public institution of
marriage. 220 Marriage includes a third party contractual relationship with
the state, giving the state a substantial interest in it. 221 These relationships
are a fundamental part of society and therefore the state must be able to
regulate them to a certain degree. 222 This is especially important regarding
the practice of polygamy, which “‘often coincides with crimes targeting
women and children. Crimes not unusually attendant to the practice of
polygamy include incest, sexual assault, statutory rape, and failure to pay
child support.’” 223 The court further held that the Lawrence decision is very
narrow, limited to decriminalizing private, intimate acts and nothing more;
and therefore Holm was correctly convicted of both counts. 224
B. The Holding of Lawrence is Inapplicable to the Argument for
Polygamous Marriage and Therefore Will Not Help in the
Polygamous Parents’ Argument for Custody.
As a result of the Supreme Court’s use of the Due Process Clause to
strike down the Texas statute at issue in Lawrence v. Texas, the holding of
the case is narrow because the Clause only applies to the protection of the
liberty interest to engage in consensual, sexual conduct. 225 Therefore,
215.
216.
217.
218.
219.
220.
221.
222.
223.
224.
225.
Id. at 731.
Id. at 742.
Holm, 137 P.3d at 731; see UTAH CODE ANN. § 76-7-101(1) (2007).
Holm, 137 P.3d at 736; see § 76-7-101(1).
Holm, 137 P.3d at 742 (discussing State v. Green, 99 P.3d 820 (Utah 2004)).
Id. at 743.
Id. at 744.
Id.
Id. (quoting Green, 99 P.3d at 830).
See id. at 752.
See Bozzuti, supra note 137, at 434.
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because of the public nature of marriage, the holding does not extend far
enough to guarantee a right to enter into polygamous marriage. 226
Justice Scalia claims that the majority’s decision has left state
marriage regulations on “shaky grounds,” however, there is an important
public-private distinction between marriage and sex. 227 The marital
relationship is more than just the right to engage in sexual conduct with a
partner. 228 Marriage is not only a religious commitment, but it is also a
social contract and the public nature of this relationship helps the state’s
interest in protecting children from being forced into polygamous
relationships. 229
“At the heart of Lawrence was sex; it requires way too many
inferential leaps for Lawrence to speak to marriage. Courts are unlikely to
take such leaps.” 230 It is extremely unlikely polygamists will be able to
make a plausible argument that Lawrence authorizes polygamous marriage;
thus, polygamous parents’ illegal conduct will continue to be an additional
hurdle they will have to overcome in custody disputes. 231
C. Because of its Harmful Impact upon Women and
Children, Polygamy Will Generally Be a Factor in Custody
Disputes.
Since the holding of Lawrence does not affect the constitutionality of
polygamy regulations, polygamy will remain a factor in both parental rights
and child custody cases. While the courts are correct that the practice of
polygamy should not be a determinative factor when applying the best
interests of the child standard, it is also true that this particular religious
practice will generally be harmful to the women and children involved. 232
226. See id.
227. Lawrence v. Texas, 539 U.S. 558, 601 (2003) (Scalia, J., dissenting); Bozzuti, supra
note 138, at 434.
228. Bozzuti, supra note 137, at 434.
229. Id. at 435; see infra Part III.C.1.
230. Bozzuti, supra note 137, at 434. While it is slightly outside the scope of this article,
it should be noted that while the Massachusetts Supreme Judicial Court used Lawrence to
justify the expansion of the right to marry to same sex couples in Goodridge v. Department
of Public Health, the Goodridge case did not involve harmful religious practices—which are
at issue here—and also which the government has the ability to regulate. Reynolds v. United
States, 98 U.S. 145, 164 (1878); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 passim
(Mass. 2003).
231. Cf. Bozzuti, supra note 137, at 434 (arguing that Lawrence v. Texas involved private
conduct and its liberty interest protection does not extend to the public conduct of
polygamous marriage).
232. See Shepp v. Shepp, 906 A.2d 1165, 1168-69 (Pa. 2006); Sanderson v. Tryon, 739
P.2d 623, 627 (Utah 1987). This is not to say that there are not some instances of
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1. The Harmful Effects of Polygamy upon Women and
Children Involved.
Problems with the practice of polygamy have been inherent since
Joseph Smith advocated the practice in the 1840s. Smith’s own first wife,
Emma, did not agree with the practice and most of his marriages took place
without her knowledge. 233 Eventually Emma consented to the marriages,
but quickly regretted it. 234 She then began pressuring Joseph to abandon the
practice. 235 In 1830, Emma’s own cousin accused Smith of “improper
conduct with a woman.” 236 He even approached a twelve-year-old girl,
who became his first plural wife eleven years later; several of Smith’s
wives were also orphans or employees from within his home. 237 Many of
these marriages resulted from his spiritual pressure that plural marriage was
necessary for the salvation of the women. 238
Over 160 years later, polygamy still negatively effects the women and
children involved. 239 The age of consent for marriage varies among
Mormon Fundamentalist groups; 240 some groups believe the age of consent
is eighteen while others believe it is when a girl begins menstruation. 241 In
a few groups, girls as young as thirteen are forced into marriage and this
tends to have a negative psychological impact upon them. 242 The young
girl’s feelings about the marriage are usually disregarded and many times
polygamous families where the children are unharmed or that women in such relationships
are always unhappy. See generally BATCHELOR ET AL., supra note 31, at 14.
233. OSTLING & OSTLING, supra note 14, at 60. In theory, a subsequent marriage could
not take place without the first wife’s approval, but often times this requirement was
ignored, as evident through Smith’s own conduct. Id. at 68.
234. Id. at 68.
235. Id. Emma was so jealous of one of her sister wives that she kicked her out during a
snow storm in 1843. Id. at 64.
236. Id. at 60.
237. Id. at 59-60.
238. Id. For more detailed information about Smith’s plural marriages see id. at 59-69.
239. See Jason D. Berkowitz, Comment, Beneath the Veil of Mormonism: Uncovering the
Truth About Polygamy in the United States and Canada, 38 U. MIAMI INTER-AM. L. REV.
615, 638-39 (2006).
240. Some of the polygamous groups in Utah and Arizona include: the Fundamentalist
Church of Jesus Christ of Latter-day Saints, Bountiful Community (Winston Blackmore),
Centennial Park Group, Church of Christ, The Order, Davis County Cooperative, The Co-op
Society, and the Kingston Group. Utah Attorney General’s Office & Arizona Attorney
General’s Office, The Primer—Helping Victims of Domestic Violence and Child Abuse in
Polygamous Communities, http://attorneygeneral.utah.gov/cmsdocuments/The_Primer.pdf
(last visited Dec. 2, 2008) [hereinafter The Primer].
241. Id. at 25.
242. See Berkowitz, supra note 239, at 638.
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the age difference between the man and woman is twenty years or more. 243
These marriages deprive girls of their childhood and rob them of their
independence. 244
Often, the women involved have a hard time dealing with the fact that
their husbands have other wives. 245 Generally, women are unable to leave
these marriages because they are financially dependent on their husbands
and tend to have many children who also need to be financially supported;
this is combined with the added pressure of Mormon doctrine condemning
women who leave their husbands. 246 These issues are compounded by the
fact that polygamous communities tend to be isolated from the main society
and therefore women may not feel comfortable leaving this environment to
seek help. 247
When a new wife joins a family, the older wives usually have
difficulty accepting the marriage. 248 If a new wife has to live in the same
home as the other wives, the newer wife is often unhappy because she feels
like a visitor and the other wives tend to see her as an intruder. 249 There can
also be feelings of jealousy, abandonment, and betrayal. 250
Sexual abuse is prevalent and rape tends to be covered up, while child
molesters are shielded by religious authorities and law enforcement. 251
Many times the men demand sex from their wives through threats and
coercion. 252 Also, incest is common. 253 One polygamous group, the
Kingston Group, teaches that incest is a preferred way to preserve a pure
bloodline from Christ. 254 A few men of this group have “been convicted of
incest, bigamy, and child abuse, including arranged marriages with
underage girls.” 255
Often children are raised in an environment where young women
243.
244.
245.
246.
247.
248.
249.
250.
251.
252.
253.
254.
See Bozzuti, supra note 137, at 436.
Id.
Id. at 440.
Id.
See id. at 437.
See ALTMAN & GINAT, supra note 6, at 177.
Id. at 178.
Id.
Berkowitz, supra note 239, at 638.
Bozzuti, supra note 137, at 439-40.
Bozzuti, supra note 137, at 437.
Judy Nichols, Wives Suing to Bring End to Abuse Under Polygamy,
THE ARIZ. REPUBLIC, Oct. 15, 2003, available at http://www.rickross.com/reference/
polygamy/polygamy138.html.
255. The Primer, supra note 240, at 21.
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POLYGAMY IN CHILD CUSTODY DISPUTES
131
have limited rights. 256 Some argue that the young boys involved are also
harmed because they are being groomed into predators. 257 In many cases,
fathers are frequently absent and mothers may have a difficult time
providing sufficient child care. 258 There is also a problem of inadequate
child support. 259 Many children are taught to fear state care, and this is
particularly an issue in situations involving domestic violence. 260 Often,
even if children are abused, they believe that their situation is better than
being in foster care. 261 Additionally, many children are taught to lie in
order to protect their families. 262 These children generally have a negative
opinion of public school and some parents do not allow their children to
attend school past the eighth grade. 263
Severe poverty is another issue that is associated with polygamist
communities. 264 Colorado City, famous for its Mormon Fundamentalist
population, is one of the poorest cities in America because most of the men
do not earn enough money to support their families. 265 Thirty-three percent
of the town’s residents receive food stamps, compared to the state average
of just below five percent. 266 For every dollar the residents pay in taxes,
they receive about eight dollars in federal assistance. 267
Further, as a result of husbands only “spiritually” and not legally
marrying their subsequent wives, polygamy is one of the hardest crimes to
track and prosecute. 268 Plural wives are able to claim they are single on
welfare forms and understate their income on tax forms. 269 It is estimated
that the Rulan Clan in Colorado City receives more than six million dollars
256. See Bozzuti, supra note 137, at 440.
257. See In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *2 (Tex. App. May 22,
2008).
258. The Primer, supra note 240, at 25.
259. See Bozzuti, supra note 137, at 440.
260. The Primer, supra note 240, at 26.
261. See id.
262. Id. at 42.
263. Id. at 27.
264. Berkowitz, supra note 239, at 637-38.
265. See id.
266. Berkowitz, supra note 239, at 638; see Rower, supra note 209, at 717.
267. Berkowitz, supra note 239, at 638. Such a practice is sometimes referred to as
“bleeding the beast,” which is some fundamentalists’ rationale for accepting and abusing
financial assistance from the government. See The Primer, supra note 240, at 7.
268. See Rower, supra note 209, at 717.
269. Richard A. Vazquez, Comment, The Practice of Polygamy: Legitimate Free
Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern
Constitutional Jurisprudence, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 225, 244-45 (2001).
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per year in public assistance. 270
2. Courts Must Consider the Negative Impacts and
Illegal Nature of Polygamy When Determining Child
Custody.
While it is true that a parent’s religion should never be the
determinative factor when deciding child custody disputes, the behavior
typical of polygamous lifestyles requires extra judicial time and
consideration. 271 A prime example of this is the recent custody proceedings
as a result of the raid of the Yearning for Zion Ranch in Texas on April 3,
2008. 272
Texas officials were informed of a call received by Child and Family
Services from a female whom they believed to be a sixteen-year-old girl
living on the ranch. 273 The female claimed that she was taken to the ranch
three years earlier and was forced to become the seventh wife of a fortynine-year-old man. She also claimed that he forced her to have sex with
him and beat her. 274 Based on this call, state officials entered the ranch and
determined there was a “widespread pattern” of abuse and that all children
were in danger. 275 In total, 468 children were seized from the ranch,
leading to “one of the largest custody disputes in United States history.” 276
Initially, in a mass hearing, Judge Barbara Walther ordered that all
children from the ranch be held in state custody. 277 Subsequently, the Texas
Supreme Court ruled that the “removal of the children was not
warranted” 278 because the district court had less extreme protective options
available short of removing the children. 279 The court then upheld the
appellate court’s ruling that the district court abused its discretion in
270. Rower, supra note 209, at 717.
271. See supra Part II.C.
272. See Ralph Blumenthal, 52 Girls Are Taken from Polygamist Sect’s Ranch in Texas,
N.Y. TIMES, Apr. 5, 2008, at A11, available at 2008 WLNR 6409633.
273. See Gretel C. Kovach, Court Files Detail Claims of Sect’s ‘Pattern’ of Abuse, N.Y.
TIMES, Apr. 9, 2008, at A15, available at 2008 WLNR 6605741.
274. Id.
275. Id.
276. Kirk Johnson & Gretel C. Kovach, Sect’s Children Returned to Parents, but Inquiry
Continues, N.Y. TIMES, June 3, 2008, at A14, available at 2008 WLNR 10446705; Ralph
Blumenthal, Court Says Texas Illegally Seized Sect’s Children, N.Y. TIMES, May 23, 2008,
at A1, available at 2008 WLNR 9767934.
277. Kirk Johnson & John Dougherty, Sect’s Children to Stay in State Custody for Now,
N.Y. TIMES, Apr. 19, 2008, at A11, available at 2008 WLNR 7317373.
278. In re Tex. Dep’t of Family & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008).
279. See id.
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POLYGAMY IN CHILD CUSTODY DISPUTES
133
deciding to hold the children in state custody. 280
The problem with the district court’s decision is not that it considered
polygamy as a factor in determining whether the state should retain custody
of the children, but that it accepted the danger of harm to each child based
on the culture of polygamy alone. As discussed above, the belief in
polygamy in itself is not enough for the state to retain custody of
children—there must be additional harmful conduct. 281 Additionally,
according to Texas statute, in order for a child to be taken into state custody
this early in the court process, there must be a danger to the child’s
“physical health or safety[,]” which was not demonstrated here. 282
Should the court go back to consider the danger to the children with
more direct evidence, it is likely that a great number of those children will
be removed. This is true because of the environment present in many
polygamous families. 283 The treatment of women within these groups is
abhorrent and before placing children in the custody of their polygamous
parent, the court should consider that parent’s conduct and actions. 284
Unlike Wisconsin v. Yoder, where the Amish parents had a legitimate
reason for not wanting their children exposed to worldly values through
high school attendance, here, the parents’ religious practices could have
serious psychological implications for their children. 285 There is also the
additional risk of harm, because if domestic violence is taking place, it is
even more difficult for the women and children involved to extricate
themselves from the situation. 286
Polygamous relationships are analogous to that in Prince v.
Massachusetts where the mother’s actions in support of her religious
beliefs caused her to break Massachusetts’ child labor laws. 287 Like Prince
and unlike Yoder, there is the additional issue of illegal conduct. 288 By
disregarding the law through their polygamous lifestyles, parents are
teaching their children that it is acceptable to ignore the law whenever they
280. Id.; In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *4 (Tex. App. May 22,
2008).
281. See supra Part I.B.2.a.i.
282. In re Steed, 2008 WL 2132014 at *3 (emphasis in original); TEX. FAM. CODE ANN. §
262.201(b)(1) (Vernon 2008); Ralph Blumenthal, Court Says Texas Illegally Seized Sect’s
Children, N.Y. TIMES, May 23, 2008, at A1, available at 2008 WLNR 9767934.
283. See supra text accompanying notes 240-70.
284. See supra text accompanying notes 249-55.
285. See Wisconsin v. Yoder, 406 U.S. 205, 221-22, 228-29 (1972).
286. See supra text accompanying notes 260-63.
287. See Prince v. Massachusetts, 321 U.S. 158, 169-70 (1944).
288. See id. at 170; Yoder, 406 U.S. at 221-22, 228-29.
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disagree with it. 289 If the parents are involved in incestuous relationships or
welfare fraud, the parents are further reinforcing the belief that it is
acceptable to break the law whenever desirable. 290 This is unacceptable and
these considerations along with the potential psychological and physical
impact these practices could have on the children, especially young girls,
are factors judges should spend a substantial amount of time considering
when determining the best interests of the child. Judges should also look
for any warning signs of harmful practices when determining the best
interests of the children involved in custody disputes. 291
CONCLUSION
Although at first it seemed to some that Lawrence v. Texas created a
new, plausible argument for the legalization of polygamy, it is now clear
that Lawrence is a very narrow holding, limited to private, consensual
conduct. 292 If polygamy was legalized, it would have helped polygamous
parents in their argument for child custody. 293 As it stands, however, in
addition to the harmful physical and psychological impact on the children
involved, it is also a concern that polygamy remains an illegal practice. 294
Therefore, when determining child custody, courts, like the district court in
Texas, will be able to consider the fact that a parent is encouraging his or
her child to engage in polygamy. This is because he or she is advocating for
his or her child’s participation in illegal conduct. 295 Disregard for the law,
whether based on religious beliefs or not, is unacceptable and cannot be
tolerated. This is especially true when this conduct is likely to cause harm
to those involved. 296
Therefore, although the religious belief in polygamy cannot be the
sole basis for determining child custody through the best interests of the
child standard, the behaviors that accompany this belief should always be
considered and given heavy weight by the judge. 297
289.
2008).
290.
291.
292.
293.
294.
295.
296.
297.
See In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *2 (Tex. App. May 22,
See supra text accompanying notes 232-55, 269-70.
See supra text accompanying notes 180-81.
See supra Part III.B.
See supra Part III.
See supra Part III.C.2.
See supra Part III.C.2.
See supra Part III.C.1.
See supra Part III.C.2.