U.S. District Judge Clark Waddoups

U.S. District Judge Clark Waddoups Fair use

A federal judge’s decision declaring part of Utah’s anti-polygamy law unconstitutional doesn’t just let the state’s polygamists come out of the shadows. It sharply criticizes the LDS Church for embracing the very world-view that led to the persecution of Mormons in the 19th century.

The ruling by Judge Clark Waddoups takes aim at Utah’s 1973 polygamy law for singling out for criminal prosecution those who, out of religious conviction, cohabit with and act as though they are married to more than one spouse without seeking or claiming a civil marriage contract.

Plaintiffs argue that the criminalization of religious cohabitation in Utah through the Statute subjects a targeted group — fundamentalist Mormons who still believe practicing polygamy to be a central tenet of the religion established by Joseph Smith and continued by Brigham Young — to “the moral dictates of the LDS Church” as legislated into criminal law on this issue. (Pls.’ Mem. Supp. Mot. Summ. J. 56 [Dkt. No. 50].) This claim seems historically well-founded.

Relying on recent studies of 19th-century Mormonism, Waddoups interprets hostility to the faith according to the late Edward Said’s concept of Orientalism — the dismissal of alien others as barbarous people beyond the pale of Northern European civilization. This categorization of the Mormons was enshrined in the Supreme Court’s 1878 Reynolds decision, which refused to permit them a Free Exercise right to practice polygamy.

The court notes that 133 years after Reynolds, non-Mormon counsel for Plaintiffs have vigorously advanced arguments in favor of the right of religious polygamists to practice polygamy (through private “spiritual” marriages not licensed or otherwise sanctioned by the state, a relationship to which the court will refer as “religious cohabitation”) that would have perhaps delighted Mormon Apostles and polygamy apologists throughout the period from 1852 to approximately 1904.

What seems to aggrieve the judge most is that the LDS establishment, acting through huge Mormon majorities in the Utah state legislature, wholeheartedly embraced its former persecutors’ Orientalist perspective in criminalizing those who simply want to live out what had been a central principle of their own faith: “With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator in the saga of religious polygamy in Utah and America).”

Waddoups bases his legal analysis on a strong dissenting opinion written by Christine Durham, the chief justice of the Utah  Supreme Court, in a polygamy case seven years ago. The targeting of a particular group for disfavor on religious grounds means that the state polygamy statute is not a neutral, generally applicable law, and thus can be challenged as a violation of the Free Exercise Clause — where, according to the judge, it fails the application of “strict scrutiny”:

Encouraging adulterous cohabitation over religious cohabitation that resembles marriage in all but State recognition seems counterproductive to the goal of strengthening or protecting the institution of marriage. The court thus cannot believe that this approach constitutes a narrowly tailored means of advancing the compelling state interest of protecting the institution of marriage.

Ergo, that part of the statute is unconstitutional.

Perhaps not incidentally, Waddoups was himself born and bred into the LDS Church. He grew up in heavily Mormon Southern Idaho, where in 1964 he received a diploma for completing three years of seminary study. He went on to get his bachelor’s degree at BYU and his law degree at the University of Utah, after which he practiced law until he was appointed to the federal bench by President George W. Bush in 2008. In January of 2011, he presided over the first session of Utah State Senate, administering the oath of office to all members, including his nephew Michael Waddoups, who was chosen president of the body.

“The proper outcome of this issue has weighed heavily on the court for many months as it has examined, analyzed, and re-analyzed the numerous legal, practical, moral, and ethical considerations and implications of today’s ruling,” he writes near the beginning of the 91-page ruling. It will be interesting to see how heavily the ruling will weigh on the LDS establishment in years to come.

Categories: Beliefs

Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

19 Comments

  1. CarrotCakeMan

    Where are the anti-gays, since this article debunks the lies they are telling about this case and their false comparisons to loving, committed same gender American couples and our fight to be able to protect our spouses through legal marriage?

  2. The LDS Church is not a political party, political organization or political movement. It has declared itself neutral and has practiced that neutrality ever since. Same-gender marriage is a political issue, however it is also a moral issue too, which the LDS Church will continue to oppose even in the face of political opposition. Because of marriage has now been redefined by the Supreme Court this ruling is the natural progression of that decision.

    If marriage is defined by two consenting adults, regardless of gender, genetics or previous definitions of traditional marriage then it is just the next logical step. Why not three or four or fifty consenting adults co-habituating? They are all consenting adults.

    Nothing about the decision sticks anything to the LDS Church since it is not the governing body of Utah. For over 100 years the Church has kept its promise to ban polygamy to the United States government. It is now that same authority that is now changed the definition of marriage.

    Will polygamy continued to be outlawed not just in Utah, but the rest of the country now that marriage has been redefined? There are already many examples of co-habitation outside of Utah or polyandry or other associations beyond traditional marriage seeking to be decriminalized.

    Will the LDS Church fight just as hard for traditional marriage against polygamy as it has against same-gender marriage? Yes. It is the redefinition of marriage by the federal government that has caused this mess, not the LDS Church which fought to stop this exact “slippy slope” we are now on to its ultimate conclusion.

    So if polygamy is once again legal as same-gender marriage is becoming will the LDS Church continue the practice if the deal for statehood for Utah is over? No. Why?

    There is no guarantee it won’t. However with marriage redefined the blame or politics of the current state of marriage does not rest on the LDS Church, it rests in the courts and government of the state and federal government. They will make polygamy legal as same-gender marriage.

    • The Utah anti-cohabitation law existed only due to the fiat of the LDS. It gave their antipathy to public displays of polygamy color of law. Plural marriage licenses were already illegal and still are.

      The slippery slope argument has always been full of crap. Gay marriage has been legal in several states and countries for years, yet its opponents talk of it in theoretical possible issues in a dishonest fashion. Frankly if they had an honest argument they could have pointed to something actually happening in such places as examples. But they can’t.

      Frankly it had nothing to do with “redefining marriage” Utah doesn’t even have civil unions or recognized couples cohabitating for any kind of state benefits. The law itself was a major overreach into territory the law had no business getting involved in. I will make this clear since there is a ton of misrepresentation as to what happened: ONLY ONE MARRIAGE WAS RECOGNIZED UNDER THE LAW. Polygamy was not made legal here. Only the law about living like a polygamous couple. You are either completely misinformed, didn’t read the article or being willfully dishonest here to deliver your screed.

      Your whole argument rests on ignoring the material differences between gay marriage and plural marriage and its effects on the laws. Marriage equality has zero impact on existing laws concerning marriage. They are written as gender neutral to begin with. Polygamy recognized under the law wreaks holy havoc on existing laws concerning property rights, financial default obligations, child custody, divorce, parental rights, tax laws and estate laws.

      The LDS got a black eye in attacking marriage equality and it is par for the course for a church with a checkered history with regards to civil liberties issues.

    • Hey LDS you now have no excuse you have the internet. It is more easy than ever to see you have been following a false profit from Joseph to Monson. I also was a mormon and there is so much info out if you seek it. If god translated the Book Of Mormon Directly to JS not only word for word but letter to letter. Then why hundreds of changes in the BOM was the all knowing perfect God wrong? Or is it a man made religion That changes with the secular world?

      For behold, I reveal unto you a new and an everlasting covenant; and if ye abide not that covenant, then are ye damned; for no one can reject this covenant and be permitted to enter into my glory — excerpted from D&C 132

      How can you revere Joseph Smith as a prophet and follow his words as scripture yet at the same time refute this one particular revelation?

      Wouldn’t this be the same as only following 9 out of the 10 Commandments?

      How is it that a current prophet (or any after Smith – Woodruff for example here) is able to negate this revelation?

      The mormon church is very political. Here in Utah they are always in the news about political issues.They are the largest private land owners here and are very wealthy. But I am very confident they will collapse simpley because there is no archaeological ,paleontology or herbology that is talked about in the Book Of Moron

    • What nonsense. Waddoups mentions NOTHING about same sex marriage in his decision. Claims by religious fanatics (such as yourself?) that the legalization of same sex marriage would slide down the slippery slope to justify polygamy are bunk. There is no evidence of that, especially not in this decision by Waddoups.

      Pay attention in school next time, would you?

  3. First God says you will go to hell if you don’t support polygamy, then He says you will be excommunicated if you do support polygamy…what’s He going to say now?

    http://downtownministries.blogspot.com/

  4. “sticks it to LDS Church” seemed about right to me as well in reading the opinion. Besides the “delighted” phrase you quoted above, there was the rather tangential discussion of Joseph Smith’s polyandrous sealings in a footnote. Not terribly germane to the case but rather interesting to see in a ruling.

  5. Will all due respect to John Turner and Mark Silk, I think that you’re misreading the opinion. I don’t think that it was meant as a barb at the LDS Church today so much as an attempt to signal to skeptical readers that the Court has done its homework, is aware of all the historical history, and isn’t trying to offer some whitewashed Mormon apologetic. This is especially important because the Court is trying to discredit Reynolds with a narrative that positions nineteenth century Mormons as victims of religious and quasi-racial persecution. Rhetorically the Court can only play the Mormons-were-victims-card if it can also show that it isn’t acting as a Mormon apologist. Hence, the gratuitous level of historical detail. While the Church did support anti-polygamy laws in the twentieth century this was mainly because they were scared to death of reopening the kind of attacks they saw in the 1880s or during the Smoot Hearings. However, it’s worth remembering that until 1945 the president of the Mormon Church was a polygamist, hardly a person convinced of the moral evils of plural marriage. The Mormon hierarchy today is quite aggressive about pushing for expansive readings of the free exercise clause and they are sophisticated enough to understand perfectly well that such a push undermines the basis for anti-polygamy laws. I don’t think that undermining those laws is their goal, but I simply don’t think that they feel any particular proprietary interest in those laws. As for Silk’s speculations about how this ruling will “weigh on the LDS establishment in years to come,” I strongly suspect that the answer is “Not at all.”

    • You’ve provided sound analysis, thoughtful commentary, and historical context to a discussion that is almost always angry, ignorant, and loud. It’s much appreciated. It’s also, unfortunately, a little like adding fresh broccoli florets to a Quarter Pounder Value Meal, a healthy bit that’s sure to be ignored midst all the empty calories.

  6. Dave,
    The polygamy situation for Mormons is much like the Gentile situation was to the early Jewish Christians. Not until Peter had his “sheet” vision did he even wonder about the Jewish law which prohibited a Jew from associating with a Gentile. Peter at first refused to eat any of the unclean food presented to him by the Lord in the sheet that descended from heaven. But the Lord admonished him by saying, “What God hath cleansed, that call not thou common [or unclean].” Even though the vision was presented three times, Peter still had to wonder what it all meant until he was told by the Spirit to go meet with a certain group of Gentiles. Peter’s first words to them were, “Ye know how that it is an unlawful thing for a man that is a Jew to keep company, or come unto one of another nation; but God hath shewed me that I should not call any man common or unclean.”
    It is God that decides what is “common and unclean”–not man.

  7. I’m curious. If indeed polygamy becomes a legal reality rather than just “religious cohabitation” (just love that euphemism), in our postmodern culture which seeks to be fair to both genders, one woman will most certainly have the right to cohabit with 4 men? We certainly cannot have a double standard in the LDS church, Islam, etc.!!!

    • Maximilian Damacion Wilson

      InforJC, outside of Utah women already had that right. If polyandry is uncommon, you can’t blame it legal factors. It must be socioeconomic or psychological factors, or something else.

  8. Waddoups ignores many important considerations. It was not the choice of the LDS Church to criminalize polygamy in Utah. It was mandated by the federal government as a condition for gaining statehood.

    The fact of the matter is that there is an unfair double standard. Marcy Hamilton has on multiple occasions attacked Utah for failing to prosecute all polygamists and claims this is some sort of toleration of religious evil, while she ignores that in her own city of New York, the city will not even proactively go after polygamists when the second wife is a 15-year-old marrying a 35-year-old.

    Utah is not the only state to have criminalized unlawful cohabitation. It is not the state that has pushed such prosecution the most. The Short Creek raid of the early 1950s, the largest scale anti-polygamy attack before YFZ, was clearly motivated by anti-polygamy zeal and was carried out by the government of Arizona, which has never been heavily influenced by the LDS Church.

    Lastly, I can show case after case where people claim the LDS Church showed do more against polygamy, is failing to fight polygamy, and on and on and on. There is no way to win.

    The fact of the matter is the LDS Church has not since well before 1940 called on the State legislature of Utah to criminalize polygamy nor has it called on its members to urge criminal sanctions against polygamy.

    • Yes, John, there is “no way to win” — when your Church founder, Joseph Smith, and a number of his successors engaged in deception and outright LIES to cover their illegal polygamy for years!

      What a tangled web LDS Church leaders weave when they attempt to deceive.

Leave a Reply

Your email address will not be published. Required fields are marked *

Comments with many links may be automatically held for moderation.