Polygamy and the Law

Authorities in Texas say they are looking for a teenager whose complaint led to the removal of women and children from a polygamist compound. The girl claims she had a baby at 15 and is married to a 50-year-old man. Video by AP
Marci Hamilton
Law Professor and Author, 'Justice Denied' and 'God vs. the Gavel'
Tuesday, April 8, 2008; 2:00 PM

Texas authorities investigating allegations of abuse and the forced marriage of young teenagers to much older men have taken more than 400 children into custody from a remote ranch owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints. authorities said Monday.

The court-ordered sweep of the 1,700-acre property near Eldorado, Tex., nearly 200 miles northwest of San Antonio, continued into the night Monday, four days into a raid described as the largest single child-welfare operation in state history.

Marci Hamilton, a leading church/state expert who specializes on the issue of whether religious practices that violate the law should be accommodated, law professor at Princeton University and author of "God vs. the Gavel: Religion and the Rule of Law" and the upcoming "Justice Denied: What American Can Do To Protect Its Children," was online Tuesday, April 8, at 2 p.m. ET to discuss the situation in Texas.

A transcript follows.


Marci Hamilton: Authorities in El Dorado, Texas have now taken into custody over 500 women and children who were living in the Fundamentalist Latter Day Saints compound there. They are seeking the 16-year-old girl who tipped them off to abuse within the community when she called and told them she had been forced to marry a 50-year-old man and have his baby.

She is a very brave girl, but many have known what was going on within the FLDS compounds in NV, AZ, UT, and Canada, as well as TX, for years. Prophet Warren Jeffs is in custody for arranging marriages for underage girls. Why did it take so long to rescue these children? In part because as a culture we are far too lenient when harm is being done by religious organizations. America also has romanticized polygamy with the unfortunate HBO show, Big Love.


Fairfax, Va.: Is polygamy legal in some parts of the U.S.?

Marci Hamilton: No. Polygamy is illegal under federal and state laws. Various groups have challenged its constitutionality, but the courts have consistently upheld the laws dozens, even hundreds of times.


Washington, D.C.: What types of people join these organizations and agree to live their lives like this?

Marci Hamilton: Most are born into the organization, so they do not make a concious "choice" to join. A few escape, like the members of Tapestry, an organization of formerly polygamous wives in Utah, but most never do. They are not permitted to watch television or be exposed to the outside influences that might persuade them there is a better life than the one they are living. The FLDS's "success" depends in no small part on its insularity.


Annapolis, Md.: How restrictive are the churches on the movement of the people that live there? Are they ever able to leave the grounds? Do they truly believe that it is a religion and did they make the choice to join?

Marci Hamilton: Every move is monitored. A number of boys are abandoned by the group to keep the numbers favorable to the men, and when they are dropped off on street corners in cities like Phoenix or Salt Lake City, it is often the first time they have ever been outside the group. They have been dubbed the "lost boys" for good reason.


McLean, Va.: How do they "mold" the people to conform to all these restrictions? Isn't it human nature to want more?

Marci Hamilton: They mold members by keeping outside influences to an absolute minimum. For many, this is the only world that they know. The opportunities beyond the compound are simply unknown. The culture, obviously, does not foster women's or children's rights, which means the horizons for them are very low.


Washington, D.C.: Don't blame "Big Love"! I love the TV show.

Marci Hamilton: Sorry-- the t.v. show is propaganda for an organization that engages in persistent child and spousal abuse.


Washington, D.C.: This is, actually, quite scary. It does seem like "Lost Boys." What happens to the ones who are dropped off/abandoned? And why does this, seemingly, often happen with a religion such as Mormonism?

Marci Hamilton: The FLDS, actually, have been disavowed by the mainstream Mormon church. They practice the polygamy that the Mormons have rejected for over a century.

The stories of the lost boys are often tragic. They are abandoned with no money, no skills, and no knowledge of the dangers in the outside world. It is child neglect and abandonment at its harshest.


Iowa City, Iowa: Hi Marci,

You mentioned that people have known about this abuse for years. The same slowness to react surrounded a lot of abuse cases in the Catholic church. Besides a cultural taboo on prosecuting religions for wrongdoing, are there protected class laws that hinder law enforcement from investigating churches?

Marci Hamilton: So true with respect to the hierarchy of the Roman Catholic Church. There has been widespread misinterpretation of the First Amendment's free exercise clause by academics and authorities, who mistakenly read the Constitution as a mandate of "religious autonomy." The Supreme Court has never condoned "autonomy" or freedom from the law. We are only now beginning to see the ways in which this false understanding of free exercise law has led to the harm of others, a phenomenon I examine in my book, God vs. the Gavel: Religion and the Rule of Law (Cambridge 2005, 2007).


Washington, D.C.: You may have seen the show that Oprah aired on Polygamy -- they had a few of the wives on the show. They say they should be able to live their lives as any other "family." They do not condone what is going on in the "compounds" but feel that America has quite a few terms for "family" that we live with these days and they should be left alone as well. Where do you draw the line -- or is there no line, just the "Law"?

Thank you

Marci Hamilton: I do not see how polygamy can be anything other than inherently unjust to women and children. You cannot make the numbers work without abandoning many of the boys (otherwise, you have roughly equal numbers of boys and girls, which makes it difficult for one man to have multiple wives)and without the men keeping the women "in line." I do not doubt that some believe that they have a good life in the iterations of polygamy outside the FLDS, but that does not make it sound public policy.


New York, N.Y.: In the U.K., 16 and 17-year-olds are considered adults who can legally leave school, often get jobs, get married and live perfectly 'normal' adult lives. Yet here, marrying a 16-year-old is somehow child abuse.

I absolutely agree that a marriage between a 16-year-old and a 50-year-old is creepy, and that we should be protecting children (for instance, no 9-year-olds should be getting married), but how is what is perfectly acceptable in other Western countries with similar cultures immoral "child abuse" here?

Marci Hamilton: We are on the verge of a coming civil rights movement for children, and only recently have states taken the steps necessary to protect children from imposed marriages and rape. There was a time when the age of "consent" was as young as 12-years-old in many states; children's advocates have succeeded in pushing up that age to 16 in most jurisdictions. That is the very youngest it should be in my view, because of the ability of adults to exploit teen-agers. I don't think the UK is ahead of the US on this particular issue.


Bowie, Md.: I'm getting the impression from your answers that authorities didn't care that much about all the "lost boys" but took action when a girl complained about abuse.

Are there some sexist assumptions about what abuse is here?

Marci Hamilton: Authorities in the west have not been quick to protect the lost boys. You may be right that there is an element of sexism here, but I also think that the Texas authorities are setting an example the western states need to follow for both sexes.


Pivotal difference between FLDS and Catholic child-molester priests: There's a pivotal difference between FLDS and Catholic child-molester priests (and clergy of other faiths as well): namely that what FLDS does is part of their avowed beliefs and policy, whereas in the other religions it's against the rules.

Marci Hamilton: I agree to a point. The hierarchy of the Catholic Church has argued vigorously that it has a constitutional right to avoid lawsuits by victims, because of an asserted belief in the sanctity of conversation between a bishop and a priest. Courts have rejected the theory, but they continue to argue for constitutional rights in cases involving the cover up of child abuse.


McLean, Va.: Anything we can learn from this about how to deal with other religions that are unfamiliar to us (i.e., Islam)?

Marci Hamilton: Yes-- authorities need to keep their focus on the laws they have been given to enforce. Abuse is abuse, whether committed by a religious group or a non-religious group. With respect to some Islamicists, genital mutilation of girls is a serious problem. The law does not permit it, regardless of the religious justifications for the practice.


Washington, D.C.: So what is the reason given for such a delay in addressing this issue? I JUST finished reading Carolyn Jessop's book and was appalled by what I read (persistent child and spousal abuse is an understatement). But, it is also clear that authorities KNOW and knew what was happening in that community.

Incidentally, the person who is challenging the action appears 'from what I read' one, Merrill Jessop, Carolyn's ex-husband.

Marci Hamilton: The delay is due to a mix of culture influences: (1) too much deference by authorities if the harm being done is rendered by religious individuals; (2) the sad and misleading romanticization of the FLDS lifestyle by the show Big Love, which gave it a patina of acceptability; and (3) our culture's frequent choice to favor adults' interests over children. We look away from child abuse all the time.


Re old-time LDS polygamy: My family had an elderly friend whose mother grew up the child of polygamous legitimate Mormons in Utah back in the late 19th century (just before the practice was illegalized). He said life was harsh for his grandmother, in that the Mormon husband set up each wife on her own farm, which he would visit for only a couple months a year. Basically he checked up on how the farm was running, impregnated the wife, then left her to run the farm on her own for the other 10 months of the year (including hiring/firing hired hands) and to raise the huge brood of children on her own. It was a very hard life.

Marci Hamilton: Many of the wives in the FLDS are forced to go on public assistance.


Fairfax, Va.: Hi,

I do not agree with polygamy and I am very against what they are doing to children or young girls BUT if these are adult women and men who are choosing to live this lifestyle who are we as a society to tell them it is wrong?

Marci Hamilton: That is our job as a society -- to set the parameters of marriage, legitimacy, and the definitions of abuse and discrimination. Polygamy is inherently biased against women and children. The fact that the adults are consenting does not make it good public policy or good for anyone else.


Baltimore, Md.: It seems like most of the questions -- and answers -- up until now have been about child and spousal abuse, not really about polygamy. No one is going to argue that what happened in Eldorado and other crazy LDS-offshoot compounds isn't offensive, exploitative, sad and a big problem.

That being said, if one guy wants to live with two women, why is that against the law? Assume they have a normal family life with two-three kids and no one is being abused? Why should that be illegal if it works for all parties involved?

Marci Hamilton: It's not legal in any state, and states would have to change their marriage laws dramatically to make it legal. The history of polygamy around the world is a history of chid and spousal abuse. You just cannot separate out those elements, and lawmakers who consider these issues are right to take these issues into account. It should be illegal because of its enhanced capacity to victimize girls, boys, and women.


Pittsburgh, Pa.: Aren't there really multiple issues here, polygamy and forcible underage marriage (including incest)? So even if a faith is monogamous, forcing members to marry against their will or underage, especially to near relatives, is still illegal, right?

Marci Hamilton: That's right. Include statutory rape under the category of underage marriage.


Richmond, Va.: Let's be clear, as much as I dislike pologamy, it is not the same thing as child abuse. Maybe Big Love takes pologamy lightly, but that is not the same thing as the sexual mistreatment of children.

Marci Hamilton: Big Love is predicated on the FLDS, which practice widespread "marriage" of adolescent/teenage girls to men. That is, by definition, the sexual mistreatment of children.


Philadelphia, Pa.: I really think you are griding your axe too hard on "Big Love." First of all, the show has been on for what, three or four years? Certainly the lack of serious investigation into abuses far predates the show. And while I see your point about polygamy being inherently unfair to women and children, the fundamentalist camps like the one in Texas are portrayed as creepy and controlling.

If your issue is that the show indicates polygamy 'could' be acceptable, fine, that's valid, but don't blame the lack of action by law enforcement and other officials on a television show.

Marci Hamilton: I blame the whole culture for the widespread abuse of children, especially within religious organizations. Adults have to ignore other adults abusing children for it to continue as it has. As a culture, we have given too many religious organizations a pass when it came to protecting children, until very recently. We have not stood up for children when they needed us most, even when we knew what was happening. Big Love is just one example of the callousness of the culture toward the suffering that we know about.


Ponte Vedra Beach, Fla.: What is going to become of the kids? Will they all be placed in foster care? Or can the state somehow keep the mothers who sincerely seem to want out of that horrible place, together with their children?

Marci Hamilton: The future depends on what the authorities are learning from their interviews with the various members, including the women and children who are being held outside the compound, and the men still in the compound. One real possibility is that the adult members will not be forthcoming and will obstruct justice.


Seattle, Wash.: How would you solve the debate of religion vs. abusive practice? I can see solutions involving assessing 'voluntariness' or 'compotency' but doesn't that get into areas of religion that are unconstitutional or not acceptable to American society?

Marci Hamilton: The solution lies in regulating and deterring bad behavior, regardless of religious motivation. If a parent physically or sexually abuses a child, or permits the abuse to happen, no amount of religious explanation should protect the adult from accountability. As Americans, we often put on rose-colored glasses when it comes to religion and the result is that the vulnerable remain unprotected.


Washington, D.C.: Will the men in the compound be arrested? Where is the 50-year-old father they're looking for?

Marci Hamilton: If the authorities have sufficient evidence of abuse and legal violation. The more troubling question is where is the girl who tipped off the authorities? They do not seem to be able to find her.


San Diego, Calif.: Texas CPS said they have wanted to search the compound for years, but couldn't without a complaint. However, the girl who allegedly called and caused the raid has not been found, and may not have ever existed.

Even so, new warrants were issued that include gathering DNA from the compound.

What is to keep government organizations from falsifying a complaint so that once on the property they can then find probable cause for other warrants? Does "clean hands" apply?

Marci Hamilton: I doubt that the girl never existed. Readers can draw their own conclusions on why authorities are seeking to search the compound for DNA in light of the fact she has not been found.


Washington, D.C.: Hello --

Although I admit I haven't been paying close attention over the years, the only FLDS prosecutions I am aware of are for sexual abuse of minors (arranging marriages with unaged females) and welfare fraud. If polygamy is illegal, why no prosecutions for that? To say nothing of child neglect if the "lost boys" are minors?

Marci Hamilton: That is a very good question. It is not because it is legal. Prosecutors make choices all the time, and, unfortunately for those abused within the FLDS sect, they have persistently declined to prosecute polygamy. Had they done so, they might have stemmed some of the worst abuses.

What is interesting is that this TX compound is relatively new; AZ, NV, UT, and Bountiful, British Columbia are more entrenched.


Philadelphia, Pa.: There seems to be a strong sentiment here about separating the practice of polygamy from various abuses. In support of that thought, I would submit that many times more boys, girls and women have been abused in "traditional" wife and husband-based families.

Marci Hamilton: Good point. Child abuse persists across religious, socio-economic, and all other societal boundaries. According to recent studies, at least 25% of boys and 20% of girls are sexually abused. The most important question, in my view, is how we can deter sexual abuse. Only 10% ever go to the authorities, so we don't know the identities of most perpetrators, especially those engaging in incest.

Most states shut the courthouse doors on child abuse victims long before they are ready to come forward, which means many perpetators beyond the FLDS are operating anonymously and putting our children at risk. That is why I have written Justice Denied: What America Must Do to Protect Its Children, which comes out this month, and advocates the elimination of statutes of limitations on child sex abuse.

The FLDS are just one more example of how we permit our children to suffer when we should know better.


Where is the girl who tipped off the authorities?: Maybe she's in custody, but afraid to admit she's the one who provided the tip in a situation where the others who were gathered up are likely to find out. Or maybe she has identified herself to authorities, but they're just saying otherwise in order to protect her identity. After all, she and her mother and siblings could all be at risk for severe retaliation, whether from other women who've been rounded up or later back at the compound at the hands of the men.

Marci Hamilton: I hope you are right in your second suggestion: she has been identified and she is being protected. If one reads books like The Banner of Heaven, one knows that those who go outside can be in serious danger.


Choice to Live this Way: I don't know if people can truly understand that these women and children don't know of any other way of life.

The only somewhat comparison is American slavery prior to the Civil War and even then enslaved people wanted to escape because they KNEW there was freedom. These women have no concept of choice. Where do you go if you are 20 with three or four children dependent on you and you have been told that the outside world is dangerous and the end of the world is coming. Imagine having a son rounded up and abandoned at fourteen and never seen again?

Marci Hamilton: It's even worse-- because the mothers, who have grown up in the organization, typically have not been educated. So their options beyond the group are severely limited.


Re: New York: So we are now trying to push the age of consent down to 16? In many cases, it seems like the law is trying to make people wait until they are much older until they can be treated like adults.

Are colleges still using "en loco parentis" as an excuse for treating undergraduate students from 18 to 23 years old like they are still children? Why is this allowed?

Marci Hamilton: In most states, children's advocates are trying to push UP the age of consent so that children are protected. The law is trying to give children and teens the space they need to mature and be able to make decisions like whom to marry.


Campbell, Mo.: The girl who called the authorities is a true hero in this crazy mess. Does anyone know how did she gained access to the phone or how she received the number to the Children Service Agency in Texas?

Marci Hamilton: If so, they have not told the public yet. She is a true hero, and I hope we will learn her story from her when the time is appropriate.


Silver Spring, Md.: I think that a lot of people don't consider "who decides" when it comes to polygamy. If a young woman grows up in one of these communities she may not have (or be told that she has) options to not being wife number 4 to some old guy.

Can a woman have multiple husbands? Sure, if she is allowed the same opportunities to get an education and to own and control wealth while the boys are given little education, few options and are told that it is God's will. (still waiting for this to happen)

In the U.S., polygamy is usually portrayed as being in secluded, white communities in the western states. Is there any evidence of significant polygamous activity outside of that stereotype?

Marci Hamilton: Polygamy has been a staple of Islamic culture around the world, and is still practiced in some countries. Your second point is accurate- it's all about who has the power -- the education, the wealth, and the physical capacity to insist on their way. That's true in every abuse situation, sadly.


Sacramento, Calif.: It is extremely improbable that every single child there was abused enough to be made a ward of the state. How long will it take before these children are reunited with their fathers?

Marci Hamilton: It depends on your definition of "abuse" and whether the fathers are prosecuted.


Potomac, Md.: Is there brainwashing that goes on inside the compound? I just don't understand how they can keep free-thinking individuals from not wanting freedom, to get out, and I don't understand why more can't escape. One did, Carolyn Jessop. Do you know about her case?

Marci Hamilton: Carolyn Jessop is a hero, like the girl who made the call in Texas. She is the rare individual who could see the horizon beyond the organization.


Seattle, Wash.: Aside from the merits of 'insularity,' which I don't think is a good policy on any grounds, to what extent can governments crack down on such groups if the groups are practicing their religion by choice? Essentially, if the children weren't born into the sect and kept insulated within the sect, would this as much a concern?

Marci Hamilton: No, it would not. Insularity is one of the means by which groups retain control and also make it harder to exit.


Marci Hamilton:

Thanks to all for your many intelligent and thoughtful questions. I enjoyed the exchange. Sorry I could not get to every one! Best regards, Marci


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