Friday, August 12, 2011

Speculation Upon The Kody Brown Polygamy Case

**Thanks to Anonymous for guiding me to this article.

Taken from remarks made by a panel at the 2011 Sunstone Symposium. Participants were Kaimi Wenger, asst. professor at Thomas Jefferson Law School; Ben Winslow, multi-media journalist for Fox 13 News; DeWayne Hafen, practicing polygamist from Baja California; Cheryl Bruno, permablogger at FPR. Also remarks made at a meeting of the Apostolic United Brethren in Rocky Ridge, Utah, 8/7/11.

It doesn’t take a law degree to understand the ins and outs of the Kody Brown Polygamy case currently being filed in Utah. But it does take an understanding of a few key points. For example, to how many people do you have to be married to be prosecuted for bigamy in Utah? Did you answer two or more? Nope. It’s zero. Because of cohabitation laws which originated to facilitate conviction of nineteenth-century Mormons, all you have to do is be sleeping with someone who is currently married. You’d better watch out if your girlfriend’s divorce hasn’t gone through yet! Kody Brown, well-known star of the TLC show “Sister Wives” and husband of four seeks decriminalization of polygamy, an action which is being followed with great excitement or trepidation by interested parties throughout the state.

Decriminalization is not the same as legalization of polygamy. Many people are asking how this will affect insurance, health care, and even immigration in the state, but these policies will scarcely be touched.  Decriminalization will not make polygamy legal. But in situations such as child custody disagreements, plural families are unable to present a case in court because they are felons. Plural wives don’t report abuse in many cases, because they can themselves be convicted of a crime.
In order to make polygamy legal, the courts would have to overturn Reynolds v. United States, an 1878 case where it was held that religious duty is not a suitable defense to the charge of bigamy.

Brown v. Herbert does not seek to overturn Reynolds. It simply notes disparate treatment of religious polygamists and asks that private intimate behavior between consenting adults not be subject to prosecution. Because in 2003 the US Supreme Court struck down laws criminalizing sex between gay and lesbian individuals in Lawrence v. Texas, the same logic could apply to anti-polygamy laws.

One more wrinkle in the case is important. Kody Brown has not been charged with a crime. His lawsuit depends upon whether the courts agree to hear his complaint.
I believe that the story of polygamy in the Church has become almost archetypal. Try this: In 3 to 5 sentences, write the LDS position on polygamy, including why the practice was ended. 3 to 5 sentences do not allow for historical nuance, so we get the broad picture. What did you come up with? Was it something like this:

Joseph Smith didn’t want to live polygamy, but he was commanded to do it. Only a small percentage of the Church ever practiced it, and it helped to bring widows and single women across the plains. Because it was no longer legal, the Saints were told to discontinue polygamy, and LDS members in good standing do not live it today. (I would be fascinated to read your 3-5 sentence statement in the comments below, and compare how it concurs or differs from the above.)

It is interesting that the rationale for stopping the practice of polygamy rests almost completely upon the circumstance of its illegality. A close look at Official Declaration 1 shows the political context – the declaration is a response to the Utah commission. Wilford Woodruff declares that inasmuch as laws have been enacted forbidding plural marriage, his intention is to submit to these laws. He advises the Latter-day Saints to refrain as well. There is no other reasoning given for the discontinuance of the Principle.

Early Latter-day prophets Joseph Smith [1], Brigham Young [2], John Taylor [3], Wilford Woodruff [4], Lorenzo Snow [5], and Joseph F. Smith [6] insisted that celestial plural marriage was an eternal principle, necessary for exaltation in the highest degree, and would never be withdrawn. In order to comply with United States law, it was discontinued. Many members believed that one day it would be reinstated. And in fact, temple ordinances continued and still continue to allow for the practice of plural wives in the eternities. Now there is a possibility that polygamy may be decriminalized. How would the Latter-day Saints have to change their story to accommodate this development? What would you add or subtract to your 3-5 sentences to reconcile the prophetic statements below and a change in the law?

Fundamentalist churches are already grappling with the issue. The Apostolic United Brethren (AUB), from which tradition Kody Brown hails, has voiced its disapproval of his lawsuit. In a public sacrament meeting on Sunday, August 7, 2011, Dave Watson of the Priesthood Council warned that “no one has the right to go off half-cocked and take it upon himself to try to decriminalize plural marriage on the coat-tails of legislation passed on gay rights.” The only acceptable way to approach the matter is to reverse the Reynolds decision, Watson insisted. He further stated, “Do I want to see [plural marriage] dragged through the courts and decriminalized as a result of the homosexual movement? I will not stand for it. The ladder is leaning against the wrong wall.”

I very much doubt that LDS leaders will be as forthcoming in discussing their views on pending legislation on polygamy. However, we have seen a stronger and stronger polarization against our polygamous roots in the past few decades. I believe that in order to maintain this stance in the face of coming legislation, the LDS will have to subtly change the story we tell ourselves about our history.
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[1] It is an eternal principle, and was given by way of commandment and not by way of instruction. (Joseph Smith, Contributor 5:259; History of the Church 6:280; TPJS p. 94)
[2] For so God help us, we will never give up that holy law that noble prophets laid down their lives to maintain…The powers of hell will do their utmost to get this people to give up that holy low which God designs to maintain. (Brigham Young, Life of Mosiah Hancock, p. 48)
[3] It is an eternal part of our religion, and we will never relinquish it — We cannot withdraw or renounce it — He has promised to maintain it. (John Taylor, Millennial Star 47:708, 9 Nov 1855)
[4] The Lord will never give a revelation to abandon Plural Marriage. (Wilford Woodruff, Minutes of the Quorum of Twelve Apostles, 12 Dec 1888)
[5] Though I go to prison, God will not change his law of Celestial Marriage. (Lorenzo Snow, History of Utah, Orson F. Whitney, 1879)
[6] Some people have supposed that the doctrine of plural marriage was a sort of superfluity, or non-essential, to the salvation or exaltation of mankind. In other words, some of the Saints have said, and believe, that a man with one wife, sealed to him by the authority of the Priesthood for time and eternity, will receive an exaltation as great and glorious, if he is faithful, as he possibly could with more than one. I want here to enter my solemn protest against this idea, for I know it is false. (Joseph F. Smith, Journal of Discourses, 20:28-31)


Source: http://www.faithpromotingrumor.com/?p=5036)

18 comments:

  1. ""Joseph Smith didn’t want to live polygamy, but he was commanded to do it. Only a small percentage of the Church ever practiced it, and it helped to bring widows and single women across the plains. Because it was no longer legal, the Saints were told to discontinue polygamy, and LDS members in good standing do not live it today.""

    THIS is what the LDS says today??

    Dave Watson of the Priesthood Council warned that “no one has the right to go off half-cocked and take it upon himself to try to decriminalize plural marriage on the coat-tails of legislation passed on gay rights.” The only acceptable way to approach the matter is to reverse the Reynolds decision, Watson insisted. He further stated, “Do I want to see [plural marriage] dragged through the courts and decriminalized as a result of the homosexual movement? I will not stand for it. The ladder is leaning against the wrong wall.”

    So Dave Watson is a high Member of the AUB? I don't think Kody would of had the balls to do it without some type of OK, they are just covering their butts!!!

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  2. I had to read this one twice. If I remember right, something in the comments that were there were saying that there was nothing pointing to JSmith not having sex with underage brides because by all religious tenets they are encouraged to seal the deal asap upon marrying thus Warren was right or okay to do so and ya it was just a weird conversation that ensued.

    ANd yes, that sounds spot on to me, Toast. Just more to indicate Kody is the poster boy or puppet of a bigger entity.

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  3. What I think (chairside seats) is that Kody will be sacrificed, and the AUB just may turn on him, but then again, with Christine, mught be a tad difficult. You KNOW they wanted him to do it.

    But the more I read, the more confused I get. They don't want it legal, just not illegal?
    God, I pray you won't let this through.

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  4. The whole thing gets weirder and weirder, because, as we now see, it's all political. AND, that ensues lies, dodging, reverse runs, you name it.
    Sadly, we'd don't have a show. We have (Robyn's words) a political agenda.

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  5. and.....YOU know who, YES, you told me so, now help me keep up!!!LOL Hope you had a good time this week.

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  6. AUB believe polygamy is a holy principle meant only for the elect of God (them) and should not be practiced by anyone else. Dave Watson is a Council member in AUB - the highest office next to the President. The men on the council are in line for the Presidency, depending on who is senior when the current President (Jenson) dies. Watson has said in the past that AUB would benefit from the gay movement, even though that was galling to them.

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  7. FreeAndClear
    Tell us,
    Wouldn't Kody have to have the ok to do this?
    Doesn't it seem he's throwing him under the bus?

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  8. Here's an article by a Christian female attorney who actually litigates, unlike law professors (like Turley) who just debate legal concepts in their ivory towers. We litigators don't have a lot of respect for the law professors who are too good to get themselves dirty in the trenches, I mean, courthouses. There is an old saying: "Those who can't do, teach."

    Anyway, she goes even further than me. After reading the suit, she not only thinks that they are trying to legalize polygamy, but much more.

    http://www.christianlawjournal.com/blog/lawsuit-filed-utah-legalize-forms-polygamy-including-group-marriages

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  9. You know, I think that is exactly what the AUB is doing: distancing AND throwing Kody under the bus. If I were advising the head of the AUB, I would tell him now is definitely not the time to push for making polygamy legal. Today, when people think of polygamy, they remember the sex-crazed face of Warren Jeffs with his underaged brides, not the cuddley face of Kody Brown and his relatively over the hill harem. And Kody and Warren share a love of 1)impregnating multiple females 2)riding Harley Davidson motorcycles 3) believing in a fundamentalist religion that requires polygamy in order to reach the highest level in heaven.

    Kody Brown is being used, and he's either too dumb to realize it or blinded by the short term money and infamy.

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  10. Hard to say exactly what is happening with Kody and AUB authorities, I do know that they did not want him to put his family on TV, because they didn't want to draw attention to AUB, but Kody went ahead anyway . I think the lure of the money was too much to resist, plus Christine has a definite agenda to "prettify" the face of polygamy and soften up public opinion with a view to decriminalization and ultimately legalization. The majority of members would be thrilled if polygamy was legalized, and I certainly don't think the big wigs would complain either.

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  11. "Joseph Smith didn’t want to live polygamy, but he was commanded to do it." Falsity #1. JS probably didn't want to live polygamy, but was caught by Emma. He would have preferred to keep it on the "down-low," but when Emma found out, he had to make a it a decree from God that she couldn't refute. See D&C 132 about that one. Pay special attention to verse 52 where "God" specifically addresses "mine handmaid, Emma Smith."
    "Only a small percentage of the Church ever practiced it," this part is true. "And it helped to bring widows and single women across the plains." Falsehood #2. Ok, to be fair, it's not completely false. Those women would have been single and, or widows without the polygamy part, but they could have been just as well taken care of, or not made the journey without the polygamy. This was simply not the original intent of the practice. JS did not know he would need to trek across the US into what we now call Utah when he wrote the "new and everlasting covenant."
    "Because it was no longer legal, the Saints were told to discontinue polygamy, and LDS members in good standing do not live it today." This part is true. The only reason the church disavowed polygamy is because of the law. By the way, it is important to note that it was a condition that this be constitutionally illegal for the Senate to grant statehood. Utah would never have become a state unless this law took effect.
    The history of LDS polygamy, in 3-5 sentences:
    J.S. was caught having extra-marital affairs by his wife. He conjured up a revelation by God to decree that plural marriages were essential to exaltation. To be granted statehood, the territory of Utah outlawed polygamy. Wilford Woodruff penned "Official Declaration- 1" in 1890, stating his intention to follow the law, and that all members should do the same.

    Current members (in good standing, of course) translate the verbiage in D&C 132 (Doctrine and Covenants, Section 132) to mean sealing in the temple because it is an eternal marriage, not just for this life. They ignore the part about plural marriage because of the Official Declaration. And most today swear that the concept of polygamy is abhorrent to them.

    That's their story, and they're sticking to it.

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  12. They simply cant keep their lies straight. Wasn't it crazy for Kody to file this now? I think he thought he'd be arrested, and when he wasn't did it anyway.....

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  13. Polygamy and Polandry have NEVER been legal in the United States. Joseph Smith, at a minimum, used his position as a religious leader to first commit adultery, then secondly, to make it a requirement for women and underage girls to marry him, otherwise God would kill him while they lost their future spirtual exhaltation for not doing what he demanded. The church's D&C:132 was written by a man desperate to excuse and continue his predatory behavior, while forcing his wife and other woman to accept his criminal actions as prophet and leader of this church. It goes against every rational and logical thought to believe that an all knowing and powerful god would give a commandment (plural marriage) to follow that was against the law, then take that commandment away when that law was prosecuted by government officials and persecuted by citizens justifiably upset that their daughters and wives were being accosted by men who claimed "God told me to do it, so I must continuted to do it" Plural marriage destroyed a lot of people and ultimately led to mobs persecuting mormons and forcing them to flee to Utah where they could practice plural marriage in relative saftey.

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  14. "It goes against every rational and logical thought to believe that an all knowing and powerful god would give a commandment (plural marriage) to follow that was against the law"

    Excellent comment

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  15. Great post Laura!

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  16. Bad Timing, don't you guys think? Or was it made this way to have something to blame it on?

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  17. I support Cody and all the Sister Wives. This goes to show that they are standing up for their religious beliefs. We all need to step back in this country called America, what is the big deal about this life style. It is against the law of God for gays and lesbians to marry each other, knowingly that they are committing the most ultimate sin by same sex marriages our federal government and state to state local political icons such as governors, etc support that life style. They are not condoning to marry children nor do they push this life style on their children. My own cousin she is a married lesbian to another lesbian here in west Virginia. I support her decisions.

    Our Government is just afraid of true honest change. This country was supposed to be all about freedom of religion, freedom to choose how we want live no matter what. Polygamy has been around since the beginning of time. If you stop to think about. IF you research you will find that this had been going on since Sodom and Gomorrah. You about the story of Lot and his wife and daughters. Look at Noah he had more than one wife. Look Moss's, Abraham his wife was unable to conceive a child so he took on another wife name Rachael to conceive a child for him to bare his legacy or seed. There are so many in the bible not just Joseph Smith Jr. or Joseph Smith. It had been going on since the beginning of God and his creation we are whom God created..

    What Cody and the Sister Wives are doing is not weird nor stupid. To the Brown family you are not a stereotype in my books including more Americans feel the way I do I am sure of that.

    Metaphorically speaking the bible does state go through out the land and multiply and be prosperous, God did not lay down in his words anything specifically. Just go multiply and be prosperous.

    People in America in the political world or world of politics love nothing more but to destroy a family and the beliefs that he or she may have. Why should they worry it is not like you do not pay your fair share of taxes to Uncle Sam. They should allow you to continue the life style that you have created a safe heaven for you family and the children you have.

    Not for one minute when TLC started this story on the Brown Family did myself or my family think that you was in the wrong.

    At least Cody is not out their catching something that AJAX wont wash off.

    At Least with sister wives Meri knows who's bed he is in and knows and loves the women that are in their lives.

    America you know this is a better way that diseases wont spread like they do in this country and other countries.

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  18. Anonymous 11:24:

    Yes, society in the old testament practised polygamy and condemned homosexuality. They also condoned the keeping of slaves, (as long as they were from a different nation), stoning people for various offences and allowing fathers to sell their daughters into slavery. That was in the BRONZE AGE and the bible was written by people living in those societies with those views. Since then we have had the enlightenment, have made many discoveries about how the universe and our bodies work and the world has come to the general conclusion that is everyone has a right to liberty, freedom, the persuit of happiness. Of course, this liberty may include consenting adults living in plural marriage, as long as it doesn't harm anyone. However, people are not stupid and I think one of the reasons for this blog and the criticism of Kody and co. is that people sense that there is more to the story that they're not telling the world. Yes, maybe it's none of our business, but they chose to go on national (international) TV and so people are watching and are curious. It's season 3 and they have yet to broach the topic of their faith and why polygamy is commanded. hey have yet to answer how the math is supposed to work when you have a ratio of 1:1 men to women. Most of us know the answer, but we are fascinated (I am, at least) by the way they skirt the issue and gloss over the real religious reason. And people are curious as to how they were making money until now, and how they are making money NOW, because these are hard times for just regular families, so how does a family of 5 adults of which only 2 and a half were working (Meri didn't earn much) and 16 children live????? Since the obvious answer seems to be off welfare, well, sure people are going to be critical! Yes, there are lots of people living on welfare who could actually go out and get a job, but the Browns have put themselves out there as the cheerleaders of this way of life, so they should be ready to answer hard questions.

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