When Mormon fundamentalist Tom Green got busted for bigamy, he must have winced to discover that the Utah American Civil Liberties Union was on his side. The ACLU stands for many things Green would no doubt like to see repressed, but a defendant’s attitude has never been the basis of an ACLU position. Still, even for an organization known to take on lost causes, Green’s right to have five spouses and raise 29 children in a common household is a hard sell. Yet Stephen Clark, legal director of the Utah ACLU, insists that his state’s law against plural marriage violates “freedom of religion, expression, and privacy concerning personal family relationships.” He’s right.
If this case hinged on the fact that one of Green’s spouses was 13 when she conceived their first child, the ACLU might have turned its back. But since the major charge against him was bigamy, there’s a libertarian principle involved (which is why the Libertarian Party opposes prohibitions on plural marriage). What’s more, since Mormon fundamentalists like Green believe polygamy hastens salvation—and since that belief was a tenet of the faith until a century ago—marriages like his qualify as acts of faith.
Freedom of religion doesn’t just mean the right to wear a cross or star, bow toward Mecca, or praise the Dalai Lama. It means the right to pursue any religious practice that doesn’t impinge on the compelling interests of the state. Human sacrifice is one place where Clark would draw the line. Incest and sex with children can be shown to cause damage. But we know too little about plural marriage to say that it inevitably results in pain. In the absence of some rational basis, what gives Utah the right to repress this love that dare not speak its name?
The question is far from academic, especially for people whose desires have been similarly suppressed. I’m thinking here of the original Crime Against Nature (as sodomy is still called by courts in the South). Green’s case has a direct bearing on gay rights, if only because the same freedom is involved. That’s why Justice Sandra O’Connor remarked during arguments over the Georgia sodomy statute (which the court upheld) that if we protect homosexual behavior, polygamy might be next. She wasn’t just being homophobic; there really is a connection. The core issue is whether any intimate behavior that doesn’t cause harm should be allowed.
If you say yes, you must consider the possibility that plural marriage, like gay marriage (or any gay relationship), is part of the panoply of choices free people are entitled to make. I’m not surprised that the two largest national gay groups refuse to take a position on this case; it would be a public relations nightmare if they stuck up for Green. But our fates are intertwined in fundamental ways.
Homosexuals were first identified as a pathological type in the same decade that the Mormon Church repudiated polygamy (not long before Utah became a state in 1896). Both actions were attempts to regulate desire in a time of rapid social change. Once homosexuality became an identity rather than just an “appetite,” sodomites could be classified and placed at the bottom of a sexual hierarchy. This standardization of sexuality had its equivalent on the American frontier, where all sorts of unconventional arrangements flourished in the 19th century. Miscegenation was common, and, as some town names in the West—i.e., Sappho, Washington—suggest, only horses were (usually) exempt from human passion. As the territories became states, the de facto freedom that Mark Twain celebrated clashed with the demands of an expansive nation. All sorts of sexual unions were more heavily policed, but polygamy, our most infamous irregularity, became the flash point.
Just as Huck Finn was “civilized” against his will, hardcore Mormons had to be pried from the practice that distinguished them from their neighbors. They did not go Gentile into that monogamous night. Thousands of plural families refused to be parted and were broken up at gunpoint. In her fine history of American marriage customs, Public Vows, Nancy F. Cott quotes one spokeswoman for these nuptial dissenters. Objecting to the notion that “the women of Utah are oppressed and held in bondage,” this polygamist insisted that “Wherever monogamy reigns, adultery, prostitution, free love and foeticide” are the results. Even today, up to 100,000 people are said to practice plural marriage in secret, living much like sodomites.
But let’s get to the heart of this darkness. From the beginning, the case against plural marriage has rested on the conviction that it’s bad for women and children. In the wake of Green’s case, sociologists made the rounds of cable networks with evidence of child abuse, coercion, jealousy, and criminal behavior among a shadowy network of “polygamy cartels.” But other researchers maintain that these problems are no more common in polygamous families than in monogamous ones. Certainly the steadfastness of Green’s wives and the evident well-being of his children make their own statement. Like suspects, relationships should be presumed innocent until proven otherwise. Green’s was not.
The fact that this Mormon mishpuchah is multigenerational complicates the libertarian case. But let’s say that a plural marriage observes the age of consent and doesn’t involve lying to a spouse. Then one might argue against this arrangement on moral or practical grounds, but its champions could counter that adults are competent to choose their way of life. Remember that this principle also applies to polyandry (marriage to several husbands). Imagine a world where people arrange their matrimonial lives in a wide variety of ways. Or, if you really want to see the writ hit the fan, imagine a powerful woman in her fifties with five young grooms. It’s such complexities that make this case so difficult to dismiss.
The most disturbing thing about Utah’s bigamy statute is that it applies to people who aren’t actually wed. If a married man merely cohabits with several women, he’s a bigamist in the eyes of the state. This concept could be applied to all sorts of common-law ménages. If saying you are married makes it so, could gays who have commitment ceremonies be charged with a crime? Convicting Green—and driving his coreligionists underground just in time for the 2002 Olympics—might deflect attention from a whole range of sexual dissidents. But it’s hard to take solace in the suffering of a sacrificial ram.
Maybe I haven’t convinced you that polygamy is kosher. (I haven’t even convinced myself.) But that’s not the point. In a just society, every adult may pursue happiness as he or she sees fit. Grossing people out is not enough to abridge that right, and neither is threatening the sexual order. You have to cause damage before the state can stop you. Yet harm was not an issue in Tom Green’s trial. That’s why everyone who cares about freedom must consider this verdict a warning. There but for the grace of Moroni (the angel that gave us the Book of Mormon) go you and I.
Research: Ben Silverbush