In January, a lawsuit was filed in federal court to overturn Utah's 113-year-old ban on polygamy. The action, which was prompted by the Supreme Court's decision to strike down Texas' anti-sodomy law last year, comes as no surprise. Conservative Justice Antonin Scalia warned in his dissenting opinion in Lawrence vs. Texas that "if, as the court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws [against fornication, bigamy, adultery, adult incest, bestiality and obscenity] can survive rational-basis review." Utah polygamist Tom Green -- who is appealing his convictions on bigamy on the ground that, like the men in Texas, what he does in his own home is no one else's business -- could not have agreed more.
But before we slide down the slippery slope of this kind of reasoning, we should consider an important distinction about polygamy -- its treatment of children.
The American West is dotted with polygamous communities, most of them "fundamentalist" Mormon sects, in rebellion against the church's renunciation of polygamy more than 100 years ago. Polygamy's negative effects on children in these communities are well documented and truly shocking. We know from firsthand accounts and court cases that child rape, incest, physical abuse, sexual abuse and child marriage are often realities.
To keep girls ignorant of the fact that these activities are wrong and illegal, intellectual and physical isolation is necessary. Children are rarely given an education past elementary school, and if girls run away, they are pursued and often beaten if they are caught.
Dorothy Allred Solomon's story is hardly unique. Solomon, whose autobiography, "Predators, Prey, and Other Kinfolk," was published last year, was the "only daughter of my father's fourth plural wife, twenty-eighth of forty-eight children." She describes growing up in an environment in which personal identity was erased and where violent behavior was often ignored.
A few months ago, Allen Rex Harrod, the self-proclaimed prophet of a California polygamous community, was arrested on 97 counts of child molestation. Three adults and one child have accused him of abuses spanning a quarter of a century. One of his wives is accused of observing and photographing some of these acts.
Just a few weeks ago, Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Colorado City, Utah (a man reported to have 60 wives), expelled 20 church members and "reassigned" their wives and children to others. According to the Utah attorney general, there was a power struggle in the community and some of those who were expelled provided evidence to the police of child abuse, incest, sexual assault, racketeering and welfare fraud. Three 16-year-old girls have fled the community since the expulsion, two of them claiming they were about to be forced into marriages with much older men.
Law enforcement, citing a lack of resources, generally doesn't target "adult consensual bigamy" despite flagrant violation of polygamy laws. Instead, it waits for victims of its associated crimes to surface. But, as David Leavitt, the prosecutor in the Green case, explains, "these societies are so secretive and the women are so controlled and manipulated from birth that you almost never see victims [coming forward]." Vicky Prunty, the head of a Salt Lake City support group, Tapestry Against Polygamy, which helps youngsters and women escape polygamous situations, agrees. Trying to stop these crimes without prosecuting polygamy, Prunty says, is "like clipping the leaves without ever getting to the roots."
What is it about polygamy that makes the roots so deep and destructive? Some suggest that the economics of one man trying to provide for so many families inevitably leads to poverty and crime. (Welfare fraud is rampant in polygamous communities, with as much as 50% of the population relying on public assistance.) Others say the jealousy generated by plural marriages corrodes families and individuals. Or that the dissolution of individual identity in such communities simply leads to a lack of respect for other human beings.
Whatever the case, polygamy is not an activity whose effects are restricted to the bedroom and consenting adults, as the plaintiffs in Lawrence vs. Texas argued about sodomy. Rather it seems to corrupt civil society as a whole, destroying education, individual rights and the rule of law -- in other words the foundations of democratic governance. Just as with slavery, to which polygamy was compared in the presidential election of 1856, even a single instance can fundamentally alter a society.
But the federal judge in the lawsuit now pending doesn't need recourse to such abstract arguments in order to rule against legalizing polygamy. The documented harm done to children in polygamous communities should be enough to ensure that the suit does not succeed. In 1944, the Supreme Court, in Prince vs. Massachusetts, a case about Jehovah's Witnesses and child labor laws, concluded that "parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children." Unfortunately in polygamous communities, one necessarily entails the other.