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May 24, 2008
THE FLDS CASE: THE TEXAS SOLUTION,
PRISON FOR THE MEN, SHAME FOR THE WOMEN
Houston Criminal Defense Lawyer John T. Floyd Discusses Potential Bigamy Charges Facing Those Living on the Yearning for Zion Ranch
The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church.
In late 2003 members of the FLDS Church began arriving in Eldorado, Texas. They purchased a 1,700 acre ranch four miles outside of the town of 2,000. They called it Yearning for Zion Ranch (“YFZ”). Church members immediately started constructing their own town on the ranch.
On March 29, 2008 a local hot line crisis center received two anonymous telephone calls from a terrified voice claiming to be a victim of sexual and physical abuse at the YFZ Ranch. The hot line crisis center tipped law enforcement officials about the anonymous calls. That triggered a massive military-styled police raid on the YFZ Ranch on April 3rd which resulted in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.
In the wake of the FLDS raid, a national debate has infected this country concerning the religious practice of polygamy. Why does this religious custom invoke such strident emotions? The United States Supreme Court answered this question 130 years ago:
“Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil, the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estate of Deceased persons.
”By the statute of 1 James I., the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, ‘it hath been doubted whether bigamy or polygamy be punishable by the laws of this Commonwealth.’ From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests? Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.” See: Reynolds v. United States, 98 U.S. 145, 165-66 (1878).
The Supreme Court in Reynolds rejected a claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. Id. The Court said the critical question before it was “whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
”So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Id., at 166-67.
Texas Attorney General Greg Abbott has indicated to national media outlets that there will be prosecutions for some of the Eldorado FLDS members for polygamy. The attorney general told Fox News that several of the FLDS women admitted to plural marriages.
“Questions were made to these women, and I think those women need to be asked some other questions,” Abbott told Fox News. “The women were asked on national T.V. if they were married to men who were also married to other women, and they answered yes. That’s a violation of Texas bigamy laws.”
In mid-April Deseret News, a Salt Lake City, Utah newspaper, contacted Abbott’s office about possible bigamy prosecutions.
“Our office has been in frequent communication with law enforcement and prosecutors handling this case,” Abbott spokesman Jerry Strickland told the Deseret News. “However, at this time we wouldn’t disclose the nature of those nor discuss any ongoing criminal investigation.”
The Deseret News reported that Abbott’s office has offered assistance to local prosecutors handling the FLDS case.
Rod Parker, an attorney acting as a spokesman for the FLDS Church, was not impressed with Abbott’s comments when contacted by the Deseret News.
“I thought that the bigamy law was designed to protect women who are victims of a fraudulent marriage,” Parker told Deseret News. “If he (Abbott) intends to prosecute these women, then he is prosecuting the women he is trying to protect.”
The Texas bigamy statute, Tex. Penal Code § 25.01, provides:
(a) An individual commits an offense if:
(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:
(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.
(b) For purposes of this section, "under the appearance of being married" means holding out that the parties are married with cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)(1) that the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actor's prior marriage was void or had been dissolved by death, divorce, or annulment. For purposes of this subsection, an actor's belief is reasonable if the belief is substantiated by a certified copy of a death certificate or other signed document issued by a court.
(d) For the purposes of this section, the lawful wife or husband of the actor may testify both for or against the actor concerning proof of the original marriage.
(e) An offense under this section is a felony of the third degree, except that if at the time of the commission of the offense, the person whom the actor marries or purports to marry or with whom the actor lives under the appearance of being married is:
(1) 16 years of age or older, the offense is a felony of the second degree; or
(2) younger than 16 years of age, the offense is a felony of the first degree.
To fully understand this criminal statute, one must first recognize several fundamental principles of state civil law. For example, Tex. Family Code Ann. § 1.102 provides:
“When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves its validity.”
This statutory presumption is "one of the strongest known to the law." See: Wood v. Paulus, 524 S.W.2d 749, 758 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). It presumes that the most recent marriage is valid until an impediment to the marriage is established that undermines its continuing validity. See: Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). See also: Medrano v. State, 701 S.W.2d 337, 341 (Tex.App.-El Paso 1985).
In a criminal case, such as Medrano, when the State attacks the validity of a second marriage, it bears the burden of introducing sufficient evidence that negates the dissolution of the prior marriage. Id. The Medrano court added that “ … to rebut the presumption it [is] incumbent upon the State to prove (1) that the first spouse was alive at the time the husband married the second wife, (2) that the husband never secured a divorce or annulment from the first wife, and (3) that the first wife never secured a divorce or annulment from the husband.” Id. See also: Salone v. Olaque, 1998 Tex.App. LEXIS 7742 (Tex.App.-Austin 1998).
The Medrano court then said these civil law principles should be applied in criminal cases. Id. This appellate reasoning was consistent with longstanding jurisprudence from the Texas Court of Criminal Appeals in bigamy cases requiring the State to show that the defendant’s prior marriage has not been dissolved by death or divorce.” See: Parker v. State, 122 Tex.Cr.R. 21, 53 S.W.2d 473, 474 (1932) [“A prosecution for unlawful marriage can be sustained only by allegation and proof of a prior, valid marriage, for upon this depends the criminality of the second or bigamous marriage. If the defendant was legally married to another person at the time he contracted the alleged prior marriage, this renders such alleged marriage invalid, and, therefore, not a sufficient marriage upon which to predicate a prosecution for bigamy. It is essential in this crime that the first marriage be legal and the second illegal."]
The Court of Criminal Appeals in Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App. 1985) held that for a marriage to be legally valid, “the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage.” Id., at 893. One legal impediment is the existence of a previous marriage: a previous marriage not terminated by divorce, annulment or death of the prior spouse invalidates the second marriage. Id.
The appellant in Dorre v. State, 2000 Tex.App. LEXIS (Tex.App.-Dallas 2000) “admitted to a ceremonial marriage with the complainant's mother in 1995 and testified they were still married at the time of appellant's trial. Appellant also testified that some time after this marriage, he entered into a common-law marriage with the complainant. Appellant, however, concedes he never divorced the complainant's mother and was married to her at the time he allegedly married the complainant. The complainant's mother testified similarly to appellant. Additionally, the State introduced into evidence a certified copy of the marriage certificate for appellant's marriage with the complainant's mother.
”Appellant's prior marriage prevented him from entering into a legal common-law marriage with the complainant. If an impediment to the creation of a lawful marriage exists, as when one party is married to someone else, there can be no common-law marriage, even if all the other statutory prerequisites are present.”
Under Texas jurisprudence, a valid common law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married. See: Tex. Family Code Ann. § 1.91(a)(2). See also: Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App.-San Antonio 1998). These three elements must exist at the same time. Id. See also: Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ). The three elements can all be proven, collectively or independently, through circumstantial evidence. Id., at 490.
The impact of these bigamy principles of law on the FLDS case could be dramatic. First, an FLDS member who entered into a valid ceremonial marriage could not enter into a valid common law second marriage, and, therefore, could possibly be prosecuted under the longstanding rule that a common law marriage can be the predicate for the crime of bigamy. See: Stevens v. State, 156 Tex.Crim. 431, 243 S.W.2d 162 (1951).
Second, an FLDS member who did not enter into a ceremonial marriage and chose to live in common law marriage could nonetheless be prosecuted for bigamy based on two valid common law marriages. See: Adlberg v. State, 88 Tex.Crim. 173, 225 S.W. 253 (1920). The Adlberg court explained:
“Marriage is not a contract but a status, created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agreement with cohabitation, but, however, contracted, having the same elements and producing the status of husband and wife. The sole difference which can legally exist is in the method of expressing consent." Id., at 254-55.
However, it is arguable that the church members took specific measures to comply with the Texas bigamy statute and did not believe all the relationships arose to the status of legal marriages. For instance, they took measures to describe the additional relationships as “spiritual marriages” and most likely did not refer to them as legal marriages outside their religious compound. This argument would require further development should any of the FLDS members be charged with bigamy.
Based on the information that has been steadily being leaked to the media by the law enforcement officials associated with the FLDS case, it seems apparent that the State will proceed against the elder male FLDS members who had sexual contact with underage girls, or wives, under the state’s sexual assault statutes while proceeding against female FLDS members who have not cooperated with either law enforcement or child protective services officials under the state’s bigamy statute.
The State of Texas has invested too many resources to walk away from criminal prosecutions and potential convictions in the state’s largest child custody case.
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