Bigamy and polygamy are illegal in all 50 states. It is irrelevant to the criminal law that all the spouses in a polygamous marriage are aware of the other spouses and choose to voluntarily engage in such a marriage for religious or cultural reasons.
The recent release of Netflix’s popular docuseries “Keep Sweet: We Pray and Obey” chronicles the religious rise and criminal fall of Warren Jeffs of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, has reignited the legal and social discussions about both bigamy and polygamy.
History of Criminalization of Polygamy
Vermont Representative, and founder of the Republican Party, Justin Smith Morrill, introduced the first American law against bigamy/polygamy in 1862. It became known as the Morrill Anti-Bigamy Act. The Act was enacted in response to a perceived threat posed by the Church of Jesus Christ of Latter-Day Saints (Mormons), which practiced polygamy in the Territory of Utah.
The problem with laws inspired by theology is that they inevitably discriminate against those not part of the dominant religion. In an attempt to galvanize the base, the 1856 Republican Party platform linked polygamy to slavery as “twin relics of barbarism.”
There is no doubt that slavery was, and will always remain, a relic of barbarism, but to tie the religious practice of having more than one wife to slavery was, and still is, ludicrous.
In 2005. the Texas Legislature, led by Rep. Harvey Hilderbran (R-Kerrville), targeted the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FDLS) through the legislative process.
Unlike the Mormon Church, which had officially rejected polygamy in September 1890 as a threat to the destruction of the church, the FDLS, which traces its origins to the 1950s, still practiced polygamy in its communities of Hildale, Utah, and Colorado City, Arizona.
Warren Jeffs and FDLS
Under the leadership of Warren Jeffs, The FDLS became known as a “polygamous cult” and was classified as a “hate group” by the Southern Poverty Law Center because of its “white supremacist, homophobic, antigovernment, totalitarian…” rhetoric.
In 2004, the FLDS decided to branch out from its home base in Hildale/Colorado City by establishing a community at the Yearning for Zion Ranch near Eldorado, Texas, in Schleicher County. They brought with them their polygamous practice and accusations by former members that girls as young as 14 were being forced into marriage.
The group’s attorney, Rod Parker, said, “they believe in order to reach salvation they must practice polygamy. There’s not a lot the state can do to stop someone who thinks their eternal salvation is at stake.”
The 2005 legislature not only enacted legislation that made it virtually impossible for FLDS members to become part of the governmental decision-making process in Eldorado but also amended the state’s sexual assault statute. The amendment added a “bigamy provision” that elevated a second-degree sexual assault to a first-degree sexual assault when the victim “was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the pretense of being married under [Texas Penal Code] Section 25.01″—the state’s bigamy statute.
The “bigamy provision” created a legal anomaly where married sexual assault offenders are treated more harshly than unmarried sexual assault offenders. In 2018, the Texas Court of Criminal Appeals 2018 upheld the amended statute.
In 2020, the appeals court reaffirmed this double standard in Lopez v. State with this conclusion: “We conclude that imposing a higher degree of punishment to deter sexual assault by a married defendant does not lead to absurd results that the Legislature could not have intended.”
That is the Texas legal legacy of Warren Jeffs, who is now serving a life sentence, plus 20 years, in the Louis C. Powledge Unit in Palestine, Texas. He will be eligible for parole in 2038.
There is no moral or legal excuse for Warren Jeffs crimes or the crimes committed by the FLDS during the Jeffs’ era.
That said, the undeniable fact remains that the “war on polygamy” has been waged through this nation’s legal system for religious reasons rather than the harm the practice may have done to society.
We are a society of laws based on freedom of religion, among other precious civil rights retained by the people. Religion has no legitimate business in either the state or federal legislative process. This is how America remains free by allowing its people to worship as they see fit or not to worship at all.