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Experts: Polygamy difficult to prosecute
by Kathleen Thurber
Midland Reporter-Telegram
Experts say polygamy charges difficult to prosecute
By Kathleen Thurber
Staff Writer
Having more than one wife is illegal in the state of Texas.
But according to legal experts, that might not be enough to warrant prosecuting members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado who are believed to practice polygamous spiritual marriages, sometimes with underage girls.
"It would be a very difficult case to prove because you're going to have to prove they lived together as man and wife, not just that they had sex," Midland County District Attorney Teresa Clingman said.
The state continues to grapple with the challenges of caring for 463 children who were removed from the compound to protect them from potential sexual, physical and emotional abuse, according to the Texas Department of Family and Protective Services. The group also includes 31 14- to 17-year-olds who have had children or are pregnant, according to DFPS reports.
The children and parents from the FLDS ranch are being DNA tested in an effort to link families together, according to DFPS officials, and while that could go a long way in providing evidence men fathered several children with different women, that may not be enough to prove they had multiple wives, lawyers said.
Most of the marriages likely never were sanctioned by the state or presented for tax filing purposes, which will make it difficult to prove marriages between one man and several women have occurred, said John Ferguson, a religious liberty attorney and Baptist minister who teaches at Howard Payne University.
Clingman said prosecuting sect members for bigamy -- which is the technical charge for having two spouses in Texas -- would require testimony from those involved in the situation.
Up to this point, DFPS has had difficulty even getting basic information such as last names from many of the women and children.
Religious experts have made conservative estimates that about 25,000 -- many of whom are FLDS members -- currently practice polygamy, said Barry Hankins, professor and director of graduate studies in history at Baylor University, who also researches church-state issues.
And though the practice is illegal in every state, said Harper Estes, president elect of the State Bar of Texas, since these aren't technically legal marriages, the groups often are left alone if they're not practicing child marriages.
Hankins agreed and said if there weren't allegations of sexual abuse to children, the current situation wouldn't be going on even if the state knew polygamy was occurring.
Before the Mormon church declared more than 100 years ago that men should not marry more than one woman, the Supreme Court ruled in two cases that bigamy, having two spouses, and polygamy, having more than one spouse, could not be practiced even if they were inherent to a religion's beliefs.
While the First Amendment does call for a separation of church and state, which not only requires religion be kept out of state proceedings, but also that individuals should be free to practice their religion without interference from the state, the court ruled free exercise could be violated if those practices contradicted U.S. law.
Still, Hankins said, those rulings might have turned out differently today as the cases were brought up to discriminate against the sect's beliefs and not to protect anyone's safety.
"In those cases authorities were going out of their way to harass Mormons," Hankins said. "In this case authorities have gone out of their way to leave them (FLDS members) alone."
If polygamy or bigamy were prosecuted as something separate from the abuse allegations that have come up in this FLDS case, Ferguson said, unrelated issues likely would come up too, as polygamy was outlawed in the past by defining marriage as something reserved for one male and one female. Texas and other state constitutions have clarified this definition of marriage recently in response to attempts for same-sex marriages.
"If it's consenting adults and no one's being harmed, it's not really the state's business," Ferguson said. "The problem is people do have a lot of emotional connection to the idea that traditional marriage is one man and one woman."
But, Ferguson said, while polygamy or bigamy is not likely to be prosecuted everywhere it's occurring, if enough evidence is gathered to eventually charge FLDS members in Eldorado, they probably won't be able to escape on free exercise of religion arguments.
For the time being, as lawyers agreed should be the case, the situation likely will remain focused on the well-being of the children.
The 463 minors all have been moved to group foster homes throughout the state, including the emergency shelter at High Sky Ranch in Midland. Each child has been assigned a DFPS case worker who will focus solely on FLDS cases and work with no more than 15 children, according to DFPS reports. Attorneys still are being assigned to represent each child.
Estes recently worked to recruit lawyers to represent the children and said these lawyers will not be involved if criminal prosecutions, such as bigamy charges, do follow.
Whether the children are returned or remain in state custody, Ferguson said, the dynamics of the FLDS Ranch won't revert to what they once were. Historically, he said, when groups feel persecuted, some will become more strident in their beliefs and others, like children who now have been exposed to mainstream culture, will choose to leave.
"In either case the group is certain to change," he said.
Kathleen Thurber can be reached at kthurber@mrt.com.
First amendment cases involving polygamy:
Reynolds v. United States, 1878: The Supreme Court ruled men could not marry more than one woman even if his religion said the practice was necessary because marriage is a civil contract and therefore subject to state and federal laws. Because the Supreme Court said marriage consists of one man and one woman, they ruled Reynolds' right to free exercise could be violated in this case because his religious practices were in contradiction to U.S. law. The court said people are free to believe whatever they wish, but not necessarily free to put all beliefs into practice.
Davis v. Beason, 1890: The Supreme Court ruled requiring citizens to take an oath that they would not break the law, and therefore not practice bigamy, in order to vote was not a violation of the defendant's right to free exercise of religion. The majority opinion said voters must be 21 and cannot be barred based on race or previous servitude, but they can be prevented from voting if they refuse to take an oath to uphold the law and not practice polygamy.
Source: First Amendment Center
By Kathleen Thurber
Staff Writer
Having more than one wife is illegal in the state of Texas.
But according to legal experts, that might not be enough to warrant prosecuting members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado who are believed to practice polygamous spiritual marriages, sometimes with underage girls.
"It would be a very difficult case to prove because you're going to have to prove they lived together as man and wife, not just that they had sex," Midland County District Attorney Teresa Clingman said.
The state continues to grapple with the challenges of caring for 463 children who were removed from the compound to protect them from potential sexual, physical and emotional abuse, according to the Texas Department of Family and Protective Services. The group also includes 31 14- to 17-year-olds who have had children or are pregnant, according to DFPS reports.
The children and parents from the FLDS ranch are being DNA tested in an effort to link families together, according to DFPS officials, and while that could go a long way in providing evidence men fathered several children with different women, that may not be enough to prove they had multiple wives, lawyers said.
Most of the marriages likely never were sanctioned by the state or presented for tax filing purposes, which will make it difficult to prove marriages between one man and several women have occurred, said John Ferguson, a religious liberty attorney and Baptist minister who teaches at Howard Payne University.
Clingman said prosecuting sect members for bigamy -- which is the technical charge for having two spouses in Texas -- would require testimony from those involved in the situation.
Up to this point, DFPS has had difficulty even getting basic information such as last names from many of the women and children.
Religious experts have made conservative estimates that about 25,000 -- many of whom are FLDS members -- currently practice polygamy, said Barry Hankins, professor and director of graduate studies in history at Baylor University, who also researches church-state issues.
And though the practice is illegal in every state, said Harper Estes, president elect of the State Bar of Texas, since these aren't technically legal marriages, the groups often are left alone if they're not practicing child marriages.
Hankins agreed and said if there weren't allegations of sexual abuse to children, the current situation wouldn't be going on even if the state knew polygamy was occurring.
Before the Mormon church declared more than 100 years ago that men should not marry more than one woman, the Supreme Court ruled in two cases that bigamy, having two spouses, and polygamy, having more than one spouse, could not be practiced even if they were inherent to a religion's beliefs.
While the First Amendment does call for a separation of church and state, which not only requires religion be kept out of state proceedings, but also that individuals should be free to practice their religion without interference from the state, the court ruled free exercise could be violated if those practices contradicted U.S. law.
Still, Hankins said, those rulings might have turned out differently today as the cases were brought up to discriminate against the sect's beliefs and not to protect anyone's safety.
"In those cases authorities were going out of their way to harass Mormons," Hankins said. "In this case authorities have gone out of their way to leave them (FLDS members) alone."
If polygamy or bigamy were prosecuted as something separate from the abuse allegations that have come up in this FLDS case, Ferguson said, unrelated issues likely would come up too, as polygamy was outlawed in the past by defining marriage as something reserved for one male and one female. Texas and other state constitutions have clarified this definition of marriage recently in response to attempts for same-sex marriages.
"If it's consenting adults and no one's being harmed, it's not really the state's business," Ferguson said. "The problem is people do have a lot of emotional connection to the idea that traditional marriage is one man and one woman."
But, Ferguson said, while polygamy or bigamy is not likely to be prosecuted everywhere it's occurring, if enough evidence is gathered to eventually charge FLDS members in Eldorado, they probably won't be able to escape on free exercise of religion arguments.
For the time being, as lawyers agreed should be the case, the situation likely will remain focused on the well-being of the children.
The 463 minors all have been moved to group foster homes throughout the state, including the emergency shelter at High Sky Ranch in Midland. Each child has been assigned a DFPS case worker who will focus solely on FLDS cases and work with no more than 15 children, according to DFPS reports. Attorneys still are being assigned to represent each child.
Estes recently worked to recruit lawyers to represent the children and said these lawyers will not be involved if criminal prosecutions, such as bigamy charges, do follow.
Whether the children are returned or remain in state custody, Ferguson said, the dynamics of the FLDS Ranch won't revert to what they once were. Historically, he said, when groups feel persecuted, some will become more strident in their beliefs and others, like children who now have been exposed to mainstream culture, will choose to leave.
"In either case the group is certain to change," he said.
Kathleen Thurber can be reached at kthurber@mrt.com.
First amendment cases involving polygamy:
Reynolds v. United States, 1878: The Supreme Court ruled men could not marry more than one woman even if his religion said the practice was necessary because marriage is a civil contract and therefore subject to state and federal laws. Because the Supreme Court said marriage consists of one man and one woman, they ruled Reynolds' right to free exercise could be violated in this case because his religious practices were in contradiction to U.S. law. The court said people are free to believe whatever they wish, but not necessarily free to put all beliefs into practice.
Davis v. Beason, 1890: The Supreme Court ruled requiring citizens to take an oath that they would not break the law, and therefore not practice bigamy, in order to vote was not a violation of the defendant's right to free exercise of religion. The majority opinion said voters must be 21 and cannot be barred based on race or previous servitude, but they can be prevented from voting if they refuse to take an oath to uphold the law and not practice polygamy.
Source: First Amendment Center
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The following are comments from the readers. In no way do they represent the view of mywesttexas.com.
JM wrote on May 1, 2008 9:57 AM:
" I am concerened for all these children, however I cannot help but find it funny that we have all these laws on Marriage and yet if you just look around you, you will find many young men with several children by several woman whom he was never legaly married. Start at the welfare office where you will find mothers with many children by many different men that she was never married to. Take a look at your next family reunion at all the unmarried young people with kids out there out of wedlock. It goes on everywhere, everyday and we write about these people in our newspaper. Ha "
midlander wrote on May 1, 2008 1:30 PM:
" Having many children with many different partners is apparently caused my one of two factors: your religion or your lack of religion. "
CC wrote on May 1, 2008 2:11 PM:
" JM you should have kept that comment to yourself, having children out of wedlock and having numerous numbers of wives is a totally different thing, when you go to your family reunion see how many women in the same family have children by the same man...thats the difference "
Armando wrote on May 3, 2008 6:01 PM:
" What about our basic freedoms, one which is to be free from the State just coming in to our homes and grabbing our children based on a pure lie. I don't live in Texas nor am I a Mormon or a member of this FLDS. But I do support living in a free country. Thus far, these state buracrats have spent an awful lot of taxpayer money and have thus far come up with nothing but "allegations". Not one single proven fact. When will they at least give the infants back to their Moms?? "
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Fillup wrote on May 1, 2008 8:42 AM: