DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage – or any other core concept of domestic relations, for that matter.

Charles Lane, over at the Post Partisan blog of the Washington Post, responds by saying, in effect, “Uh, no.”

During the 1856 presidential campaign, the Republican Party platform had accused the Democrats of countenancing “those twin relics of barbarism–polygamy and slavery” and declared it the “duty of Congress to prohibit” both evils in the territories. Buchanan’s expedition was intended to prove the Republicans wrong. It succeeded only in provoking a few inconsequential clashes between armed Mormons and U.S. soldiers.

Congress subsequently adopted three increasingly harsh criminal bans on bigamy and polygamy in the territories: in 1862, 1882 and 1887. The Supreme Court upheld these laws repeatedly against Mormon challenges alleging, among other things, that they violated religious liberty. The 1887 law, the Edmunds-Tucker Act, abrogated the Mormon Church’s corporate charter and confiscated its property, on the grounds that its leaders encouraged polygamy.

The Supreme Court said that was okay, too. Echoing the majority opinion of the day, the court recoiled in frank horror at a practice the Mormons believed was ordained by God — but which the justices considered a “crime against the laws and abhorrent to the sentiments and feelings of the civilized world.” They compared it to human sacrifice. . . .

So it is a bit misleading to say, as Tauro does, “every [historical] effort to establish a national definition of marriage met failure.” Washington’s triumph over Mormon polygamy, made permanent in a national statute, would seem to qualify as a federal definition of marriage, at least in the sense of what marriage is not.

To be sure, Tauro emphasizes that the states have always had exclusive authority over marriage. Utah was a territory at the time of Washington’s effort to stamp out polygamy, and the constitution gave the federal government paramount authority over territories, including their domestic legislation. (That is why, technically, the anti-polygamy laws aimed at Utah also applied to Arizona, Oklahoma, Alaska and the District of Columbia.) Congress functioned, in effect, as the super-legislature for each territory.

Yet what is noteworthy about the Utah case is that Congress leveraged its power over Utah the territory into power over Utah the state. As a condition of admission to the Union, Utah’s people gave Congress a permanent veto over their marriage laws – a veto that remains on the books to this day. The fact that today’s Mormons are proponents of heterosexual monogamy and opponents of same-sex monogamy, is deeply ironic, but legally irrelevant.

What’s more, Utah is not the only state in which this situation obtains. The language of the Utah Enabling Act was repeated, word-for-word, in the laws that admitted New Mexico, Arizona and Oklahoma as states in the early 20th Century. In short, the federal government has shared authority over the marriage laws of four U.S. states.

Now, I have long been amused by those who state that efforts to allow gay marriage would have no impact on efforts to allow plural marriage. It has always struck me that any successful legal argument allowing gay marriage would have to, of necessity, allow plural marriage — I have yet to see a convincing argument to the contrary, particularly since plural marriage has a much deeper and broader history worldwide (including current active practice, particularly in Islamic and African cultures) than gay marriage does.

If Judge Tauro’s ruling is upheld, it would be interesting to see whether legal challenges to the Federally-mandated Arizona laws might arise from one of the polygamous religious groups therein (Arizona being, in my opinion, the most likely candidate for such an effort). Since Judge Tauro’s ruling does indicate that states can define marriage on their own, such an effort could be quickly ended by a de novo state law banning plural marriage (and for all I know, such a law already exists). But we continue to live in interesting times.  ..bruce..

The Texas Supreme Court has ruled that the children taken from a polygamist sect’s ranch should be returned to their parents, saying child welfare officials overstepped their authority.

The high court on Thursday affirmed a decision by the appellate court last week, saying Child Protective Services failed to show an immediate danger to the children.

The ruling directs a lower-court judge to reverse her decision putting the children into foster case. The appeals court ordered the judge to return the children to the parents soon but it is unclear exactly when that will happen.

While I don’t agree with FLDS doctrine or culture, I do think that it’s pretty clear that TCPS seriously overstepped its authority and profoundly botched this whole issue.

Here’s the actual Texas Supreme Court decision (PDF; hat tip to The Volokh Conspiracy).  ..bruce..

[First post -- made 05/02/08]

I appreciate your efforts to shed light on the mess down in Texas. However, the next time you want to opine on and analyze LDS history, thought, and doctrine, you might try actually asking someone who has a thorough understanding of it and has studied it extensively in the context of both historical and mainstream Christianity.

Latter-day Saints (by which I mean members of the Church of Jesus Christ of Latter-day Saints, 13+ million members worldwide, over 50% of those outside of the United States) are almost universally appalled by the various polygamous offshoots, most of which are quite tiny, insular and parochial in comparison. Note that support for such groups is grounds for denying a temple recommend (required to enter and participate in LDS temple ceremonies) and actual involvement is immediate grounds for excommunication. There is no sympathy, winking, or collusion between the LDS Church and these various tiny denominations; the relationship is frankly far more like that of the Roman Catholic Church and the various Protestant groups that arose during the Reformation, each side considering the other hopelessly apostate.

There is also very little similarity between the cultural and organizational behavior of the LDS Church vs. that found in these offshoots. Far from running around in suits and bonnets, and living in isolated communities, Latter-day Saints tend to be heavily integrated in their communities and cultures wherever they are found. There are over 27,000 LDS congregations worldwide, on every continent except Antarctica — and there may be one down there for all I know. Also note that the LDS Church has provided $750 million [correction: over $1 billion] in humanitarian assistance worldwide [PDF] in the last 22 years, the vast majority of which has gone to people who are not members of the LDS Church. All of this assistance has come either directly out of the pockets of the LDS members themselves or from the production of the LDS Church’s extensive welfare system, which itself is run largely from volunteer labor of LDS members.

Also note that many Evangelical Christians consider us too liberal in our lifestyle and behavior (we’re great fans of music and dancing, and our view towards abortion and related issues, while still conservative, is more liberal than that found in Evangelical — or for that matter, Catholic — circles). Anyone who seriously contends that Latter-day Saints are conformist sheep controlled by the Church hierarchy would be laughed out of the room by anyone who (like me) has actually served in an LDS bishopric. (Here’s Joseph Smith’s own observation: “There has been a great difficulty in getting anything into the heads of this generation. It has been like splitting hemlock knots with a corn-dodger [corn muffin] for a wedge and a pumpkin for a beetle [mallet].”)

As for education and intellect, I’ll cheerfully put up the LDS Church’s record against any other religion . For every Sonia Johnson (and there really have been only a few dozen such excommunications over the past 20 years), there have been scores of excommunications for extreme right-wing behavior and hundreds, if not thousands, of excommunications for involvement and participation in polygamous groups.

In short, trying to make statements or draw conclusions about the LDS Church based on the behavior of the FLDS group down in Texas is about like trying to make statements about Methodist and Baptists churches by the behavior of Jim Jones and the People’s Temple.

Finally, I will cheerfully admit — as will most Latter-day Saints — that the LDS-heavy culture in Utah does get a bit, ah, strange at times. A close friend of mine — who served as an LDS bishop over a mostly-Latino congregation down in El Paso, Texas — put it best, paraphrasing from “Hello, Dolly”: “Mormons are like horse manure. Spread them around, and they make things grow; pile them up in a heap, and they tend to stink.”

[Second post - made 05/05/08]

Most (though not all) modern LDS-derived polygamous churches descended from a group of seven Latter-day Saints (Mormons) who were excommunicated in the 1923-1941 time frame for practicing polygamy (the “Council of Friends”).The diagram at the bottom of this website gives you something of an idea of how most (though not all) of these churches are related. The FLDS Church is the largest of the surviving polygamous churches, most of which are either very tiny or defunct.

Still, the FLDS Chruch has only about 10,000 members total, most of whom were born into the FLDS Church and were never members of the LDS Church. The same is true of most of the other polygamous churches; they occasionally recruit outside people (Latter-day Saints or not), but tend to be largely descended from the original recruits (who were mostly Latter-day Saints) in the early to mid 20th Century. (Note that by contrast, the relatively small city of Parker, CO, where I live, has about 4000 Latter-day Saints in and around it, and there are about 130,000 Latter-day Saints in the entire state of Colorado.)

There are also stark contrasts between how the FLDS Church (and some of the other polygamous churches) practice polygamy vs. how it was practiced among Latter-day Saints up through 1904. For example:

The FLDS practice the “Law of placing,” or assignment of marriages, combined with a high level of control of the membership. This contrasts greatly with the LDS. We have no arranged marriages and the average age for LDS marriages is 23. Throughout LDS history, free agency has been a ruling principle. In 19th century LDS plural marriages women were freely allowed to marry, divorce, and leave the community. My own great-great-grandmother, Elizabeth Clark Crouch, was in a plural marriage, and she divorced her husband and left the community with no ramifications. There was no danger of having her children reassigned to anyone else. It was more difficult for men to obtain a divorce, as it was believed that the men should provide economic and social support since there was no state welfare program and women had limited employment opportunities. Kathryn M. Daynes discusses the economic underpinnings of plural marriage in her book titled “More Wives Than One: Transformation of the Mormon Marriage System, 1840-1910.” . . .

Another difference with the FLDS church is their idea that more wives equals a greater chance of exaltation. While our critics like to claim we believed that, Brigham Young stated quite clearly that not everyone would, or should, practice plural marriage. Several members of church leadership–including apostles–were not polygamists. Some of Brigham’s more controversial statements, when read in context, seem to use plural marriage as an example to focus on the idea of being willing to follow God rather than whether or not you actually practiced plural marriage. If plural marriage were required for heaven, why did some members of the Quorum of the Twelve Apostles, our top leadership group, not practice it?

If you would like to read more about fundamentalist Mormonism, I recommend the book “Modern Polygamy and Mormon Fundamentalism: The Generations after the Manifesto” by Brian C. Hales.

– Scott Gordon, fairlds.org (The FAIR Journal — email sent 5/4/2008)

There are some other stark contrasts as well. In the Utah Territory in the second half of the 19th century, when the practice of polygamy was at its peak, Brigham Young emphasized the need for advanced education for LDS girls and women. On one occasion he stated:

“We wish, in our Sunday and day schools, that they who are inclined to any particular branch of study may have the privilege to study it. As I have often told my sisters in the Female Relief societies, we have sisters here who, if they had the privilege of studying, would make just as good mathematicians or accountants as any man; and we think they ought to have the privilege to study these branches of knowledge that they may develop the powers with which they are endowed. We believe that women are useful, not only to sweep houses, wash dishes, make beds, and raise babies, but that they should stand behind the counter, study law or physic [medicine], or become good book-keepers and be able to do the business in any counting house, and all this to enlarge their sphere of usefulness for the benefit of society at large. In following these things they but answer the design of their creation. These, and many more things of equal utility are incorporated in our religion, and we believe in and try to practice them.” (Journal of Discourses 13:61; address given July 18, 1869)

LDS women (mostly plural wives!) were heavily involved in national and international women’s rights movements and traveled to the Eastern US to participate in and speak at women’s conferences. Only the first page of the just-linked article is available, but it does set forth the basic situation; also see An Advocate for Women: The Public Life of Emmeline B. Wells, 1870-1920 by Carol Cornwall Madsen (BYU Press/Deseret Book, 2006), as well as this transcript from the PBS Special, “The Mormons”. In 1872, LDS women (again, mostly plural wives) started their own intellectual journal, The Women’s Exponent, which was published for over 40 years.

For that matter, women in the Utah Territory were the second (after those in the Wyoming Territory) in the United States to receive the right to vote, in 1870. That right was stripped by Congress in 1887 in the effort to end polygamy and reduce the political influence of the LDS Church, but it was restored — 25 years ahead of the 19th Amendment — when Utah gained statehood in 1895. In fact, the actual language put into the Utah State Constitution was, “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall enjoy equally all civil, political and religious rights and privileges.” (1896 Utah State Constitution, Article IV, Section 1, “Equal political rights”).

In short, it’s hard to imagine a more dramatic contrast between the TV images and news accounts of the (apparently) highly-sheltered, controlled and under-educated girls/women at the FLDS compound in Texas and the broad, active, literate, and — for its era (we are talking about the 1800s) — quite liberated roles and activities of Latter-day Saint women in the Rocky Mountains during the last half of the 19th Century. ..bruce..