Legal Polygamy vs. Illegal Bigamy?

Old Testament Polygamists:

Abijah (2 Chronicles 13:21)
Abraham (Genesis 16:13; 23:12; 25:1,6)
Ahab (1 Kings 20:3)
Ahasuerus (Esther 1:9; 2:3, 14, 17)
Ashur (1 Chronicles 4:5)
Belshazzar (Daniel 5:2)
Caleb (1 Chronicles 2:1819,46,48)
David (1 Samuel 18:27; 25:4244; 2 Samuel 3:35,1314; 5:13;; 12:78,24; 15:16; 16:2123; 1 Chronicles 14:3)
Elkanah (1 Samuel 1:2)
Esau (Genesis 26:34; 28:9, 36:114)
Ezra (1 Chronicles 4:1718)
Gideon (Judges 8:30)
Jacob (Genesis 29:2328; 30:49)
Jehoiachin (2 Kings 24:15)
Jehoram (2 Chronicles 21:14)
Jerahmeel (1 Chronicles 2:26)
Joash (2 Chronicles 24:3)
Lamech (Genesis 4:19)
Manasseh (1 Chronicles 7:14)
Mered (1 Chronicles 4:1719)
Nahor (Genesis 22:2024)
Rehoboam (2 Chronicles 11:1823)
Saul (1 Samuel 14:50; 2 Samuel 3:7)
Shaharaim (1 Chronicles 8:8)
Simeon (Genesis 46:10; Exodus 6:15)
Solomon (1 Kings 11:3)
Zedekiah (Jeremiah 38:23)

The following men appear to have multiple wives by implication:

Eliphaz (Genesis 36:1112)
Heman (1 Chronicles 25:5)
Hosea (Hosea 1:3; 3:1)
Ibzan (Judges 12:9)
Jair (Judges 10:4)
Shimei (1 Chronicles 4:27)
Ziba (2 Samuel 9:10)

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The broad scope of polygamy questions before the Supreme Courts of various states and the United States revolve around three clauses in the Constitution: the Free Exercise of Religion clause; the Equal Protection clause; and the Due Process clause.

It is unlikely that the long-standing, moral tradition in the United States of one wife and one husband will be overturned anytime soon by any court in the land, especially considering the movement in many states and Congress to pass legislation defining marriage as between one woman and one man in an attempt to curb homosexual demands. Some dissenters, like Utah Supreme Court Justice Durham in the Holm case, and United States Supreme Court Justice Scalia in the Romer case, will continue to speak out as the obvious disparity between polygamists and other minorities continues to widen. It appears obvious, however, that if a proper case involving polygamy came before the Court, the Court would eventually decriminalize polygamy rather than legalize it.

As a practical matter, polygamists continue to walk unmolested in many areas of the country. Interestingly enough, the decriminalization of polygamy would actually lessen its influence on politics. Ideally, anything that cannot be legally discriminated against (gender, race, religious beliefs, sexual orientation, etc.) eventually becomes something that the majority doesn't worry about. It appears that the simplest way to remove polygamy as an issue is to legalize it, which may soon be the case in Canada.

Perhaps the nation's fascination with polygamy would abate if it were nothing more than an esoteric doctrine of one church that occasionally appeared on the news, but this will never be the case so long as Mormons continue to believe in the concept, antagonists continue to oppose it, evil men continue to abuse it, and politicians continue to provide a platform for it.

Intermittent anti-polygamy activity took place during the next fifty years until on August 30, 2006, Warren Jeffs, a non-Mormon polygamist leader who had been on the FBI's "Ten Most Wanted" list, was arrested in Nevada. He was not tried for being a polygamist, however, but was convicted of being an accomplice to rape. The government's new anti-polygamy focus appears to be on child abuse, domestic violence, welfare fraud, and "child polygamy," rather than on polygamy itself.

Warren Jeffs, self proclaimed prophet of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), was arrested outside Las Vegas, Nevada, on August 28, 2006. Jeffs had not been charged with polygamy, but rather with two counts of assisted rape due to the alleged forced marriage of a 14-year-old girl to her first cousin. Additional charges were filed against Jeffs in Arizona. In addition to the Utah and Arizona charges, a federal grand jury returned an indictment which charged Jeffs with flight to avoid prosecution. Prior to his arrest, he was placed on the FBI's ten most wanted list, was the subject of the show, "America's Most Wanted," and had a $100,000 reward posted for his capture. After eluding arrest for months, a simple traffic stop in Nevada led to Jeff's capture. He was placed in custody and eventually extradited to St. George, Utah, for trial. After several days of testimony, the jury found Jeffs guilty of two felony charges.

This is an example of how government authorities are presently prosecuting polygamists. Jeffs admits to living in polygamy, but rather than prosecuting him for harem-type polygamy (similar to that found within provinces of tribal Africa and Sheikdom Saudi Arabia), the State chose to pursue the "assisted rape of a minor child" charge.

Non-LDS Polygamy:

There is another group that requires notice here because of its dedication to the decriminalization of polygamy. Its name is TruthBearer.org, or the Organization for Christian Polygamy. This group is not affiliated in any way with the Mormon Church and is not a derivative of any break off from the church. At its website, there is a specific disclaimer that reads:

This is NOT about polyandry or polyamory.
This is NOT about fornication or adultery.
This is NOT about group marriage or wife swapping.
This is NOT about dishonest bigamy or infidelity.
This is NOT about underaged or arranged marriage.
This is NOT about any form of Mormonism.
This is NOT about redefining marriage.

The declared mission of this group is "Bringing Christian Polygamy to the Churches."

TruthBearer.org is a fundamentalist, non-sectarian Christian movement founded by Mark Henkel and is based in Old Orchard Beach, Maine. The group has attempted to convince fundamentalist Christians and the ministers and pastors of fundamentalist Christian churches that polygamy is an acceptable doctrine of the Christian faith.

Just how successful Mr. Henkel will be in his personal crusade for polygamy remains to be seen; however, it is evident from a review of his interviews and articles (which appear on his website, TruthBearer.org) that he has not been subjected to the same intense persecution as those who practice polygamy as a direct result of Joseph Smith's revelation.

Historical [Herodian-type] Governmental Persecution Against Scriptural-Precedent Man-with-Multiple-Women Polygamy

The Morrill Anti-bigamy Act of 1862
The Poland Act of 1874
The Edmunds Act of 1882
The Edmunds-Tucker Act of 1887

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First up is what is known as the Morrill Anti-Bigamy Act - sponsored by Representative Justin Smith Morrill of Vermont. It was introduced to the House of Representatives in the spring of 1860, where it passed. It was sent over to the Senate, but did not make it out before Congress adjourned. With the start of the 36th Congress in 1862, the Southern States were not represented, and this led to an easier passage of the bill; by a vote of 37 to 2, it passed the Senate.

This bill was signed into law on July 1, 1862, by President Abraham Lincoln. Because of the timing of the bill (rebellion of the South causing the Civil War), distance of the Mormons from everyone else (railroads didn't connect in Utah until 1869), and the general attitude of "let sleeping dogs lie," this law was not enforced at all. It was a bill created without teeth, and became a law that was ignored by the Mormons. However, Brigham Young was still concerned when he learned of its passage, so he wanted to know the intentions of President Lincoln (who was later [and perhaps consequentially?] assassinated by John Wilkes Booth) in relation to this bill.

This law was not enforced. No officers were appointed to enforce the law and no funds for enforcement were allotted.

I find it interesting that they used the phrases "State of Deseret" and "spiritual marriage" in the text of the bill itself. That tells me that they did understand, at least a little, what was going on out in the desert. It is a little confusing why they would want to label and punish polygamy as the crime of bigamy because they are two different crimes. Mormons knew they weren't practicing bigamy (a woman becoming or being married to more than one husband simultaneously, and/or a man fraudulently declaring to the government the crime of possessing more than one State-registered wife when only monogamous marriage to one person has been declared under oath by him), they were practicing polygamy where everything was above board.

Below is quoted of the first part of the law in its entirety:

The Statutes at Large, Treaties, and Proclamations, of the United States of America From December 5, 1859, to March 3, 1863
Volume XII [12] - reference below, pages 501-502

July 1, 1862
Chapter CXXVI [126] - An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of Territory of Utah.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person having a husband or wife living, who shall marry any other person, whether married or single, in a Territory of the United States, or other place over which the United States have exclusive jurisdiction, shall, except in the cases specified in the proviso section, be adjudged guilty of bigamy, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, and by imprisonment for a term not exceeding five years: Provided, nevertheless, That this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years without being known to such person within that time to be living; nor to any person by reason of any former marriage which shall have been dissolved by the decree of a competent court; nor to any person by reason of any former marriage which shall have been annulled or pronounced void by the sentence or decree of a competent court on the ground of the nullity of the marriage contract.

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About 1,300 LDS men who had practiced plural marriage were jailed by federal officers pursuant to the Edmunds Act (1882), and many women were found "in contempt of court" and jailed for refusing to testify against their husbands.

Bigamy is the [adulterous] crime of a woman marrying and/or being married while a non-divorced spouse from a State-registered prior marriage is living.

Bigamy was recognized as an offense by catholic English ecclesiastical courts, which considered it an affront to the marriage "sacrament." Parliament enacted a statute in 1604 that made bigamy a felony cognizable in the English common law courts. After American independence, the United States adopted anti-bigamy laws, but they received little attention until the nineteenth century in Utah.

The United States government has constitutional power to enact laws governing territories, and under that authority Congress enacted the Morrill Act (1862), making bigamy in a territory a crime punishable by a fine and five years in prison. The statute was upheld in Reynolds v. United States (1879), although the defendant argued that the law violated the First Amendment guarantee of the free exercise of religion.

Few Mormons were prosecuted for bigamy because the government had difficulty obtaining testimony about plural wedding ceremonies. Rather, they were charged with bigamous cohabitation [i.e. fornication], a misdemeanor created by the Edmunds Act (1882). Proving cohabitation was easy enough, and over 1,300 Latter-day Saints were jailed as "cohabs" in the 1880s.

Anti-bigamy legislation also put pressure on the Church by threatening members' civil rights and Church property rights. The Edmunds Act barred persons living in bigamy from jury service, public office, and voting. The Edmunds-Tucker Act (1887) disincorporated both the Church and the Perpetual Emigrating Fund on the ground that they fostered bigamy. Furthermore, it authorized seizure of Church real estate not directly used for religious purposes, and acquired in excess of a $50,000 limitation imposed by the Morrill Act. In the Idaho Territory a test oath adopted in 1885 was used to ban all Mormons (and former Mormons) from voting because of the Church's position on bigamy. 1887 March, Edmunds-Tucker Act passed as a supplement the Edmunds Law, which became law without the signature of President Cleveland.

In 1890 after the U.S. Supreme Court upheld the seizure of Church property under the Edmunds-Tucker Act in The Late Corporation of the Mormon Church v. United States and the Idaho test oath in Davis v. Beason, it became clear that bigamous marriage was leading toward the economic and political destruction of the Church. Congress passed a final federal anti-bigamy provision in 1892, which excluded bigamists from immigration into the United States. This exclusion remains part of the U.S. Immigration and Naturalization Code. Utah, Oklahoma, New Mexico, and Arizona incorporated anti-bigamy provisions into their turn-of-the-century state constitutions as required by Congress for admission to the Union.

During the twentieth century, federal and state governments have prosecuted bigamists under a variety of general statutes. For example, federal officials have filed cases against bigamists charging unlawful use of the mails to proselytize for bigamy and alleging that moving plural husbands across state boundaries violates laws against interstate kidnapping and interstate transportation of persons for immoral purposes. Because of their practice of adulterous-"marriage" relationships, bigamists have also had legal troubles with state laws about adoption, inheritance, and government employment. Changing social attitudes about unconventional personal relationships may undermine the use of legislation in this way.

Laws against bigamous marriage and its practitioners were enacted with reforming zeal. Congress and party platforms considered bigamy and southern slavery the "twin relics of barbarism."

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Old Testament Polygamists:

Abijah (2 Chronicles 13:21)
Abraham (Genesis 16:13; 23:12; 25:1,6)
Ahab (1 Kings 20:3)
Ahasuerus (Esther 1:9; 2:3, 14, 17)
Ashur (1 Chronicles 4:5)
Belshazzar (Daniel 5:2)
Caleb (1 Chronicles 2:1819,46,48)
David (1 Samuel 18:27; 25:4244; 2 Samuel 3:35,1314; 5:13;; 12:78,24; 15:16; 16:2123; 1 Chronicles 14:3)
Elkanah (1 Samuel 1:2)
Esau (Genesis 26:34; 28:9, 36:114)
Ezra (1 Chronicles 4:1718)
Gideon (Judges 8:30)
Jacob (Genesis 29:2328; 30:49)
Jehoiachin (2 Kings 24:15)
Jehoram (2 Chronicles 21:14)
Jerahmeel (1 Chronicles 2:26)
Joash (2 Chronicles 24:3)
Lamech (Genesis 4:19)
Manasseh (1 Chronicles 7:14)
Mered (1 Chronicles 4:1719)
Nahor (Genesis 22:2024)
Rehoboam (2 Chronicles 11:1823)
Saul (1 Samuel 14:50; 2 Samuel 3:7)
Shaharaim (1 Chronicles 8:8)
Simeon (Genesis 46:10; Exodus 6:15)
Solomon (1 Kings 11:3)
Zedekiah (Jeremiah 38:23)

The following men appear to have multiple wives by implication:

Eliphaz (Genesis 36:1112)
Heman (1 Chronicles 25:5)
Hosea (Hosea 1:3; 3:1)
Ibzan (Judges 12:9)
Jair (Judges 10:4)
Shimei (1 Chronicles 4:27)
Ziba (2 Samuel 9:10)

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Deuteronomy 17:17 And he shall not multiply wives for himself, lest his heart turn away; nor shall he greatly multiply for himself silver and gold. Deuteronomy 21:15 "If a man has two wives, the one loved and the other disliked, and they have borne him children, both the loved and the disliked, and if the first-born son is hers that is disliked,
Deuteronomy 21:16 then on the day when he assigns his possessions as an inheritance to his sons, he may not treat the son of the loved as the first-born in preference to the son of the disliked, who is the first-born,
Deuteronomy 21:17 but he shall acknowledge the first-born, the son of the disliked, by giving him a double portion of all that he has, for he is the first issue of his strength; the right of the first-born is his."

Ecclesiastes 2:8 I also gathered for myself silver and gold and the treasure of kings and provinces; I got singers, both men and women, and many concubines, man's delight.

Romans 7:3 Accordingly, she will be called an adulteress if she belongs to another man while her husband is alive. But if her husband dies she is free from that law, and if she marries another man she is not an adulteress.

First Corinthians 7:39 A wife is bound to her husband as long as he lives. If the husband dies, she is free to be married to whom she wishes, only in the Lord.
First Corinthians 7:40 But in my judgment she is happier if she remains as she is. And I think that I have the Spirit of God.

First Timothy 3:2 Now a bishop must be above reproach, the husband of one wife, temperate, sensible, dignified, hospitable, an apt teacher,
First Timothy 3:12 Let deacons be the husband of one wife, and let them manage their children and their households well;

First Timothy 5:11 But refuse to enroll younger-women [Gr. ne(o)teras] widows [Gr. ch(e)ras]; for when they grow wanton against Christ they desire to marry,
First Timothy 5:12 and so they incur condemnation for having violated their first pledge.