Professional Documents
Culture Documents
Miele: BIG LOVE OR BIG PROBLEM
Miele: BIG LOVE OR BIG PROBLEM
Miele: BIG LOVE OR BIG PROBLEM
Lauren C. Miele**
Abstract: The recent raid of the Yearning for Zion Ranch of the
Fundamental Church of the Latter-day Saints thrust the issue of child
custody in polygamous families into the forefront of the nations attention.
The Supreme Court first upheld regulations of polygamous marriages in
Reynolds v. United States, stating that the regulation of harmful religious
conduct did not violate the Free Exercise Clause of the First Amendment. It
was not until the recent Supreme Court decision in Lawrence v. Texas that
some believed polygamists may have a valid argument for the legalization of
the practice. This Note examines the issue of polygamy in relation to the best
interests of the child standard and argues that the behaviors generally
associated with this religious practice will almost always be a factor when
determining child custody in these family situations. The Note further argues
that despite polygamists initial hopes when the Lawrence decision came
down, it is a narrow holding which courts are reluctant to extend and as a
result the practice will remain illegal and thus continue to be a factor in child
custody determinations.
* The title of this Note borrows the title of a popular HBO television series about a
polygamist family living in Utah. The show explore[s] the evolving institution of marriage
through this typically atypical family. HBO.com, Big Love, http://www.hbo.com/biglove
/about/index.html (last visited Dec. 2, 2008).
** Candidate for Juris Doctor, New England School of Law (2009). B.A., English and
Political Science, cum laude, Merrimack College (2006). I would like to thank my family
for their constant love, support, and guidance throughout law school and throughout my life.
105
106 NEW ENGLAND LAW REVIEW [Vol. 43:105
INTRODUCTION
In his controversial dissent in Lawrence v. Texas, Justice Scalia wrote
the Texas statute at issue, undeniably [sought] to further the belief of its
citizens that certain forms of sexual behavior are immoral and
unacceptable, the same interest furthered by criminal laws against
fornication, bigamy, adultery, adult incest, bestiality, and obscenity. 1 He
went on to say: [The majoritys decision] effectively decrees the end of all
morals legislation. If, as the Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate state interest, none of the above-
mentioned laws can survive a rational basis review. 2
With the recent raid of the Yearning for Zion Ranch of the
Fundamentalist Church of Jesus Christ of Latter-day Saints leading to one
of the largest custody disputes in U.S. history, the issue of polygamy was
thrust to the forefront of the nations attention. 3 Polygamy is never far from
the publics attention, however, with shows like HBOs popular Big Love
and the occasional episode of Law and Order addressing the topic. 4 This
past summer Senator Harry Reid even introduced legislation proposing a
national task force on polygamy as he was concerned over the high levels
of crime in polygamous communities; he cited the sources of his concern to
be the abuse of women and children as well as the increased rates of
financial crimes including welfare fraud, tax evasion, and extortion. 5 His
fear is not an unfounded one as it is estimated that anywhere from twenty
to fifty thousand Americans are current members of Mormon
1. Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (citation
omitted). For further discussion of Lawrence v. Texas, see infra Part I.B.3.a.
2. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting) (emphasis in original).
3. See, e.g., Ralph Blumenthal, Additional Children Removed at Polygamist Ranch in
Texas, N.Y. TIMES, Apr. 6, 2008, at A27, available at 2008 WLNR 6456967; Jennifer
Dobner, Girls Taught to Fear World Polygamists: All Who Leave Face Damnation, CHI.
TRIB., Apr. 12, 2008, at 3, available at 2008 WLNR 6870960; Michelle
Roberts, Polygamous Sect Reaches Deal for Childrens Return: Mormon Group
Wins Order from Texas High Court, BOSTON GLOBE, May 31, 2008, available at
http://www.boston.com/news/nation/articles/2008/05/31/polygamous_sect_reaches_deal_for
_childrens_return/; see infra Part III.C.2.
4. See, e.g., Jennifer Dobner, Sects Leader May Hold His Grip: Ties Strong
Inside Polygamist Church, BOSTON GLOBE, Aug. 31, 2006, available at
http://boston.com/news/nation/articles/2006/08/31/sects_leader_may_hold_his_grip/;
Michael Janofsky, Young Brides Stir New Outcry on Utah Polygamy, N.Y. TIMES, Feb. 28,
2003, at A1, available at 2003 WLNR 5218293; Utah Polygamists Allowed to Adopt, N.Y.
TIMES, Mar. 29, 1991, at A10, available at 1991 WLNR 3092049.
5. Gretel C. Kovach, Polygamous Sect to Defend 6 Members in Court and Its Practices
on Capitol Hill, N.Y. TIMES, July 24, 2008, at A22, available at 2008 WLNR 13768471.
2008] POLYGAMY IN CHILD CUSTODY DISPUTES 107
I. The History of the Mormon Church Within the United States and
Its Treatment of Polygamy
27. Id.
28. See OSTLING & OSTLING, supra note 14, at 2.
29. Id.
30. Hereinafter this article shall refer to the Church of Jesus Christ of Latter-day Saints
by its more common name, the Mormon Church. R. Michael Otto, Wait til Your Mothers
Get Home: Assessing the Rights of Custodial and Adoptive Parents, 1991 UTAH L. REV.
881, 881 n.2.
31. MARY BATCHELOR ET AL., VOICES IN HARMONY: CONTEMPORARY WOMEN
CELEBRATE PLURAL MARRIAGE 12 (2d prtg. 2001).
32. OSTLING & OSTLING, supra note 14, at 1-2. Smith was also the first president of the
Mormon Church. Otto, supra note 30, at 887. It is a central belief of the Mormon Church
that God communicates with modern-day prophets. Id. at 881 n.2.
33. OSTLING & OSTLING, supra note 14, at 2.
34. Otto, supra note 30, at 887.
35. ALTMAN & GINAT, supra note 6, at 24-25; see also JOSEPH SMITH ET AL., THE
DOCTRINE AND COVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 132
(The Church of Jesus Christ of Latter-day Saints 1981) (1830).
36. See BATCHELOR ET AL., supra note 31, at 14.
37. See id.
110 NEW ENGLAND LAW REVIEW [Vol. 43:105
four wives. 38 The Mormon Church, however, did not publicly acknowledge
the practice of polygamy as official church doctrine until 1852. 39
38. OSTLING & OSTLING, supra note 14, at 58. For further discussion of Smiths wives
see infra Part III.C.1.
39. ALTMAN & GINAT, supra note 6, at 32.
40. WEISBERG & APPLETON, supra note 7, at 196.
41. See id.
42. Id.
43. UTAH CODE ANN. 76-7-101(1) (2007) (A person is guilty of bigamy when,
knowing he has a husband or wife or knowing the other person has a husband or wife, the
person purports to marry another person or cohabits with another person.); see also
WEISBERG & APPLETON, supra note 7, at 196.
44. See Morrill Anti-Bigamy Act, ch. 126, 12 Stat. 501 (1862) (repealed 1910); see also
OSTLING & OSTLING, supra note 14, at 57.
45. OSTLING & OSTLING, supra note 14, at 70.
46. Morrill Anti-Bigamy Act, ch. 126, 12 Stat. 501 (1862) (repealed 1910).
47. See OSTLING & OSTLING, supra note 14, at 70.
48. Id.
2008] POLYGAMY IN CHILD CUSTODY DISPUTES 111
when it became clear that a witness would not obey one. 60 All marriages
had to be certified in the territorys probate court, and all prospective male
voters had to take an oath swearing they were not polygamists and would
not encourage others to practice polygamy. 61 The Act dissolved the
churchs emigration fund that helped Mormons in foreign countries
immigrate to the United States and provided a way for the Government to
gain control of church property. 62 It also required that prospective jurors,
voters, and those wishing to hold public office take an oath of loyalty to
United States laws. 63 As a result, the Mormon Church leaders decided to
abandon the practice of polygamy. 64 On September 25, 1890, the Mormon
Church adopted what is commonly referred to as The Manifesto, in
which the Mormon Church formally renounced the practice of polygamy
and pledged to follow the laws of the United States. 65 Then President of the
Mormon Church, Wilford Woodruff, advised Mormons to refrain from the
practice of polygamy. 66 For the majority of the country, polygamy was no
longer an issue after the enactment of The Manifesto. 67 The same could
not be said for Utah. 68
Following The Manifesto, the number of plural marriages in the
church declined, but they did not end altogether. 69 Some members of the
church viewed The Manifesto as merely a result of political pragmatism
and therefore religiously invalid. 70 The church had taught polygamy for
four decades and it was associated with achieving heavenly status, so these
members could not justify the doctrine being discarded so easily. 71 These
groups separated from the main church, called themselves Mormon
Fundamentalists, and continued the practice of polygamy. 72
Mormon Fundamentalists believe that John Taylor, president of the
Mormon Church in 1886, had a religious experience in which Joseph Smith
and Jesus Christ appeared to him and instructed him to continue the
order. 96
The Reynolds Court also noted that polygamy had always been
recognized as a crime in every state, and that courts had the authority to
oversee polygamy violations. 97 The regulation at issue by Congress was
permissible because, while marriage is an important aspect of society and is
a sacred obligation, it is also a civil contract regulated by law. 98
Therefore, in the Courts opinion, the statute at issue was within Congresss
legislative power. 99
The only issue then remaining for the Court was whether those who
practiced polygamy as part of their religion were exempt from the
statute. 100 If Mormon polygamists were to be exempted from the law, they
would not be found guilty under the statute, while others who were
nonreligious polygamists would still be considered guilty under the
statute. 101 This would create a new element in criminal law, and the Court
was not willing to do this. 102 The Court concluded that while laws could
not interfere with religious beliefs and opinions, it is permissible to regulate
religious actions; 103 therefore, the Court found Congress could regulate
religious practices. 104
Further, the Court held that if actions could be excused based upon
religious beliefs, it would have the effect of making religious doctrines
superior to law; if that were the case, government would exist solely in
name. 105 Because Reynolds was aware that his second marriage was illegal,
it was presumed that he broke the law intentionally. 106
Cantwell v. Connecticut later modified the Reynolds distinction
between religious belief and religious action. 107 It suggested that religious
conduct was not completely beyond the scope of the Free Exercise
a. Lawrence v. Texas
After the Supreme Courts decision upholding Congresss right to
legislate regarding religious actions in Reynolds v. United States, it
appeared as though Mormon Fundamentalists had run out of options. Over
100 years later, some believed Lawrence v. Texas finally opened a new
avenue of hope for recognition of polygamists rights. 112
The Supreme Courts decision in Lawrence v. Texas is one of the
most recent decisions in a long line of cases involving the right of
privacy. 113 It relied heavily on Planned Parenthood of Southeastern
Pennsylvania v. Casey to overturn its decision in Bowers v. Hardwick. 114
liberty is controlling, not the moral code); see also Planned Parenthood, 505 U.S. at 851
(At the heart of liberty is the right to define ones own concept of existence, of meaning, of
the universe, and of the mystery of human life.).
115. Lawrence, 539 U.S. at 562. The polices ability to enter the apartment under the
Fourth Amendment was not challenged. Id. at 563.
116. Id. at 562-63.
117. Id. at 563; see generally TEX. PENAL CODE ANN. 21.06(a) (Vernon 2003) (A
person commits an offense if he engages in deviate sexual intercourse with another
individual of the same sex.).
118. The Fourteenth Amendment states: [n]or shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1.
119. Lawrence, 539 U.S. at 564.
120. Lawrence, 539 U.S. at 566; see Bowers v. Hardwick, 478 U.S. 186, 187-88 (1986).
In Bowers v. Hardwick, a police officer entered Hardwicks residence and observed
Hardwick engaged in sexual conduct with another male. Id.
121. Lawrence, 539 U.S. at 566-67; Bowers, 478 U.S. at 190, 196.
122. See Lawrence, 539 U.S. at 567.
123. Id.
124. Id. at 568-70.
118 NEW ENGLAND LAW REVIEW [Vol. 43:105
statutes. 125 The Court determined that [e]quality of treatment and the due
process right to demand respect for conduct protected by the substantive
guarantee of liberty are linked in important respects . . . . 126 When
homosexual conduct is made criminal, it follows that homosexuals will be
subjected to discrimination. 127
The Court determined that societys view of homosexuality as
immoral was not a good enough reason to uphold a law prohibiting the
practice. 128 The decisions heterosexual individuals make regarding their
personal relationships are considered to be a protected liberty interest under
the Due Process Clause. 129 The issue in Lawrence did not involve public
conduct or whether the government had to give formal recognition to
homosexual relationships. 130 Nor did it involve minors or prostitution. 131
Instead, Lawrence involved two consenting adults engaging in typical
homosexual conduct. 132 In Lawrence, the Supreme Court overturned
Bowers and held that the petitioners were entitled to respect for their
private lives. 133
While the majority based its analysis on the Due Process Clause of
the Fourteenth Amendment, Justice OConnor would have preferred to
base the decision on the Equal Protection Clause of the Fourteenth
Amendment. 134 In her concurrence, OConnor advocated that the Texas
statute treated homosexuals unequally under the law. The Texas statute was
aimed at homosexuals as a class, and therefore an Equal Protection analysis
should apply. 135 If OConnors Equal Protection analysis had been applied,
it would have given the Lawrence decision a broader impact as it would not
merely apply to private conduct, which is the result of the majoritys
holding, but would apply to public conduct as well. 136
125. Id. at 567. In Romer v. Evans, the Supreme Court struck down class-based
legislation directed at homosexuals under the Equal Protection Clause because an
amendment to Colorados Constitution denied them protection under the States anti-
discrimination laws. Id. at 574; Romer v. Evans, 517 U.S. 620, 635-36 (1996).
126. Lawrence, 539 U.S. at 575.
127. Id.
128. Id. at 577. Our obligation is to define the liberty of all, not to mandate our own
moral code. Id. at 571 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850
(1992)).
129. See id. at 573-74.
130. Id. at 578.
131. Id.
132. Lawrence, 539 U.S. at 578.
133. Id.
134. Id. at 579 (OConnor, J., concurring).
135. See id. at 581, 583.
136. See id. at 583.
2008] POLYGAMY IN CHILD CUSTODY DISPUTES 119
1. Meyer v. Nebraska
The issue of parental rights first came to the forefront of the Supreme
Courts attention in 1923, in the case of Meyer v. Nebraska. 142 In Meyer,
the plaintiff was a teacher who was convicted of violating a Nebraska law
that prohibited teaching a child to read German before passing the eighth
grade. 143 The Court held that under the Due Process Clause of the
Fourteenth Amendment, the parents had a right to employ the plaintiff to
teach their child. 144 The Court went further, stating in order for the state to
137. See Joseph Bozzuti, Note, The Constitutionality of Polygamy Prohibitions After
Lawrence v. Texas: Is Scalia a Punchline or a Prophet?, 43 CATH. LAW. 409, 435 (2004).
138. See id.
139. See, e.g., Shepp v. Shepp, 906 A.2d 1165, 1166 (Pa. 2006); Sanderson v. Tryon, 739
P.2d 623, 627 (Utah 1987).
140. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321
U.S. 158 (1944); Pierce v. Socy of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923).
141. See generally Wisconsin, 406 U.S. 205; Prince, 321 U.S. 158; Pierce, 268 U.S. 510;
Meyer, 262 U.S. 390.
142. Meyer, 262 U.S. 390.
143. Id. at 396-97.
144. Id. at 400.
120 NEW ENGLAND LAW REVIEW [Vol. 43:105
3. Prince v. Massachusetts
Prince v. Massachusetts was the first time the Supreme Court
addressed the fundamental right to parent a child when the First
Amendment right to free exercise of religion also came into play. 150 In
Prince, the school attendance officer previously warned the defendant
against permitting her children to sell religious pamphlets on public street
corners for five cents each. 151 Subsequently, the children wanted to
accompany their mother while she went out to distribute the pamphlets, and
she relented. 152 The defendant later appealed from her conviction of
violating Massachusetts child labor laws through acts she claimed were
the rightful exercise of her religious beliefs. 153 She argued that not only
was her liberty interest at stake, but also her childrens. 154
The Supreme Court stated that decisions concerning custody, care,
and nurture of children are primarily the parents because there is a private
realm of family life which the state cannot enter. 155 The Court went on to
add, however, that family life is not beyond the scope of regulation because
4. Wisconsin v. Yoder
In Wisconsin v. Yoder, the Supreme Court again addressed the issue
of parental rights when the right to free exercise of religion was at issue. 161
Wisconsin had a compulsory school attendance statute which required all
parents, including the Yoders, an Amish couple, to send their children to
public or private school until age sixteen. 162 The Yoders objected to this
statute because under their core religious belief, it was unacceptable to
expose their children to worldly influences through public schooling after
their children had passed the eighth grade. 163 The Supreme Court found
that sending Amish children to outside schools would endanger the free
exercise of their parents religious beliefs. 164 The State argued that its
compelling interest in childrens education overrode parents religious
beliefs, but the Court held that Amish children differed from other children
because Amish children, in accordance with ancient tradition, would be
156. Id. at 166. The right to practice religion freely does not include liberty to expose
the community or the child to communicable disease or the latter to ill health or death. Id.
at 166-67.
157. See Prince, 321 U.S. at 168.
158. Id. at 170.
159. Id.
160. Id.
161. See Wisconsin v. Yoder, 406 U.S. 205, 207-09 (1972).
162. Id. at 207.
163. See id. at 210-11.
164. Id. at 219.
122 NEW ENGLAND LAW REVIEW [Vol. 43:105
life including religion will benefit the child. 174 The more difficult question
is how much weight to give religion. This is especially true when one
parent claims that the others religious practices will harm their child
according to broad cultural standards of healthy development. 175
The majority of states do not include religion in their statutory factors
to consider in custody determinations. 176 Despite this, many judges do
consider religion when making their decisions regarding the childrens best
interests. 177 Judges may only consider religion in certain circumstances and
may not interfere with ones religious freedom or preference of one religion
over another. 178 Often, parents of different religions argue their child
should be raised in one faith and not the other. 179 The Establishment Clause
does not allow judges to weigh the merits of one religion over another, but
they may examine the effect a certain religion has on the childs
development. 180 This is especially true if there is potential harm in
exposing the child to competing religious practices. 181
Judges deal with issues of religion in various ways. One approach
judges may use is to disregard religious issues altogether, but this may not
work out well for the child. 182 Another approach ignores the relationship
between religious practice and the developmental effects on and treatment
of the child, but this in turn may violate the parents First Amendment
rights under the Free Exercise Clause. 183 A final and more practical
approach only takes the religious choices into account if there are negative
effects on the child which are likely to be significant. 184 A parents
involvement in a religious group may not be a threshold matter, but it could
be an important factor when a judge is making the final decision regarding
child custody. 185
2. Sanderson v. Tryon
In 1987, the Utah Supreme Court again addressed the issue of
parental rights of polygamous parents, this time in a custody dispute. 193
The couple had three children, two of whom were born during their
polygamous relationship, and one of whom was born afterwards. 194 The
mother later unlawfully remarried into another polygamous relationship,
while the father abandoned the practice and teaching of polygamy. 195 The
mother received initial custody of the children, but the trial court
subsequently gave custody to the father. 196 In making this decision, the
186. See In re State Interest of Black, 283 P.2d 887, 913 (Utah 1955).
187. See, e.g., In re Adoption of W.A.T., 808 P.2d 1083, 1085-86 (Utah 1991);
Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987).
188. See Black, 283 P.2d at 888.
189. Id. at 889.
190. See id. at 909.
191. See id.
192. Id. at 913.
193. See Sanderson v. Tryon, 739 P.2d 623, 624 (Utah 1987).
194. Id.
195. Id.
196. See id. at 624-25.
2008] POLYGAMY IN CHILD CUSTODY DISPUTES 125
court did not consider the best interests of the children, but instead removed
the children from the mothers custody based solely on her polygamous
lifestyle. 197
The case ultimately went to the Utah Supreme Court, which
determined the fact that the mother was involved in a polygamous lifestyle
was not in and of itself determinative. 198 The court stated that in
determining child custody, a court must consider the best interests of the
child, the parents past conduct, and moral standards. 199 A plurality of the
court went on to hold that a determination of the childrens best interests
turns on numerous factors, each of which may vary in importance
according to the facts in the particular case. 200 Therefore, a polygamous
relationship should only be one factor when determining the best interests
of the child. 201
3. Shepp v. Shepp
In 2006, the Supreme Court of Pennsylvania also addressed the issue
of child custody where one of the parents is a practicing polygamist. 202
Here, the court specifically addressed the extent to which courts may limit
parents promotion of their religious beliefs to their children when those
beliefs, if acted upon, would constitute illegal conduct. 203 Shortly after the
parties in the case divorced, the Mormon Church excommunicated the
father because he was a Mormon Fundamentalist who believed in the
practice of polygamy. 204 The father also testified before the trial court
stating that he would not be opposed to having multiple wives. 205
The Supreme Court of Pennsylvania concluded that it had the power
to prohibit a parent from promoting religious beliefs to his children if the
religious beliefs result in illegal conduct. 206 The court went on to state,
however, that pursuant to Wisconsin v. Yoder, a court could do this only
when it was first established that promoting this conduct would put the
physical health, mental health, or safety of the children at risk. 207 In Shepp,
the court did not find a constitutional basis for the state to intrude on the
fathers speech because none of these risks were present. 208
ANALYSIS
207. Id.
208. Shepp, 906 A.2d at 1174.
209. Cf. Alyssa Rower, The Legality of Polygamy: Using the Due Process Clause of the
Fourteenth Amendment, 38 FAM. L.Q. 711, 711 (2004) (stating the current nationwide
controversy over the legalization of same-sex marriage also puts the traditional bans against
polygamy into question); James Askew, Note, The Slippery Slope: The Vitality of Reynolds
v. U.S. After Romer and Lawrence, 12 CARDOZO J.L. & GENDER 627, 646-49 (2006)
(arguing after the Supreme Court decisions in Lawrence v. Texas and Romer v. Evans, Utah
must show a rational relationship between a legitimate government interest and polygamy in
order for the state constitutions anti-polygamy clause to remain valid).
210. See, e.g., State v. Holm, 137 P.3d 726, 742-43 (Utah 2006); State v. Green, 99 P.3d
820, 834 (Utah 2004).
211. Holm, 137 P.3d at 726.
212. Id. at 730.
213. Id.
214. Id.
2008] POLYGAMY IN CHILD CUSTODY DISPUTES 127
because of the public nature of marriage, the holding does not extend far
enough to guarantee a right to enter into polygamous marriage. 226
Justice Scalia claims that the majoritys decision has left state
marriage regulations on shaky grounds, however, there is an important
public-private distinction between marriage and sex. 227 The marital
relationship is more than just the right to engage in sexual conduct with a
partner. 228 Marriage is not only a religious commitment, but it is also a
social contract and the public nature of this relationship helps the states
interest in protecting children from being forced into polygamous
relationships. 229
At the heart of Lawrence was sex; it requires way too many
inferential leaps for Lawrence to speak to marriage. Courts are unlikely to
take such leaps. 230 It is extremely unlikely polygamists will be able to
make a plausible argument that Lawrence authorizes polygamous marriage;
thus, polygamous parents illegal conduct will continue to be an additional
hurdle they will have to overcome in custody disputes. 231
polygamous families where the children are unharmed or that women in such relationships
are always unhappy. See generally BATCHELOR ET AL., supra note 31, at 14.
233. OSTLING & OSTLING, supra note 14, at 60. In theory, a subsequent marriage could
not take place without the first wifes approval, but often times this requirement was
ignored, as evident through Smiths own conduct. Id. at 68.
234. Id. at 68.
235. Id. Emma was so jealous of one of her sister wives that she kicked her out during a
snow storm in 1843. Id. at 64.
236. Id. at 60.
237. Id. at 59-60.
238. Id. For more detailed information about Smiths plural marriages see id. at 59-69.
239. See Jason D. Berkowitz, Comment, Beneath the Veil of Mormonism: Uncovering the
Truth About Polygamy in the United States and Canada, 38 U. MIAMI INTER-AM. L. REV.
615, 638-39 (2006).
240. Some of the polygamous groups in Utah and Arizona include: the Fundamentalist
Church of Jesus Christ of Latter-day Saints, Bountiful Community (Winston Blackmore),
Centennial Park Group, Church of Christ, The Order, Davis County Cooperative, The Co-op
Society, and the Kingston Group. Utah Attorney Generals Office & Arizona Attorney
Generals Office, The PrimerHelping Victims of Domestic Violence and Child Abuse in
Polygamous Communities, http://attorneygeneral.utah.gov/cmsdocuments/The_Primer.pdf
(last visited Dec. 2, 2008) [hereinafter The Primer].
241. Id. at 25.
242. See Berkowitz, supra note 239, at 638.
130 NEW ENGLAND LAW REVIEW [Vol. 43:105
the age difference between the man and woman is twenty years or more. 243
These marriages deprive girls of their childhood and rob them of their
independence. 244
Often, the women involved have a hard time dealing with the fact that
their husbands have other wives. 245 Generally, women are unable to leave
these marriages because they are financially dependent on their husbands
and tend to have many children who also need to be financially supported;
this is combined with the added pressure of Mormon doctrine condemning
women who leave their husbands. 246 These issues are compounded by the
fact that polygamous communities tend to be isolated from the main society
and therefore women may not feel comfortable leaving this environment to
seek help. 247
When a new wife joins a family, the older wives usually have
difficulty accepting the marriage. 248 If a new wife has to live in the same
home as the other wives, the newer wife is often unhappy because she feels
like a visitor and the other wives tend to see her as an intruder. 249 There can
also be feelings of jealousy, abandonment, and betrayal. 250
Sexual abuse is prevalent and rape tends to be covered up, while child
molesters are shielded by religious authorities and law enforcement. 251
Many times the men demand sex from their wives through threats and
coercion. 252 Also, incest is common. 253 One polygamous group, the
Kingston Group, teaches that incest is a preferred way to preserve a pure
bloodline from Christ. 254 A few men of this group have been convicted of
incest, bigamy, and child abuse, including arranged marriages with
underage girls. 255
Often children are raised in an environment where young women
have limited rights. 256 Some argue that the young boys involved are also
harmed because they are being groomed into predators. 257 In many cases,
fathers are frequently absent and mothers may have a difficult time
providing sufficient child care. 258 There is also a problem of inadequate
child support. 259 Many children are taught to fear state care, and this is
particularly an issue in situations involving domestic violence. 260 Often,
even if children are abused, they believe that their situation is better than
being in foster care. 261 Additionally, many children are taught to lie in
order to protect their families. 262 These children generally have a negative
opinion of public school and some parents do not allow their children to
attend school past the eighth grade. 263
Severe poverty is another issue that is associated with polygamist
communities. 264 Colorado City, famous for its Mormon Fundamentalist
population, is one of the poorest cities in America because most of the men
do not earn enough money to support their families. 265 Thirty-three percent
of the towns residents receive food stamps, compared to the state average
of just below five percent. 266 For every dollar the residents pay in taxes,
they receive about eight dollars in federal assistance. 267
Further, as a result of husbands only spiritually and not legally
marrying their subsequent wives, polygamy is one of the hardest crimes to
track and prosecute. 268 Plural wives are able to claim they are single on
welfare forms and understate their income on tax forms. 269 It is estimated
that the Rulan Clan in Colorado City receives more than six million dollars
280. Id.; In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *4 (Tex. App. May 22,
2008).
281. See supra Part I.B.2.a.i.
282. In re Steed, 2008 WL 2132014 at *3 (emphasis in original); TEX. FAM. CODE ANN.
262.201(b)(1) (Vernon 2008); Ralph Blumenthal, Court Says Texas Illegally Seized Sects
Children, N.Y. TIMES, May 23, 2008, at A1, available at 2008 WLNR 9767934.
283. See supra text accompanying notes 240-70.
284. See supra text accompanying notes 249-55.
285. See Wisconsin v. Yoder, 406 U.S. 205, 221-22, 228-29 (1972).
286. See supra text accompanying notes 260-63.
287. See Prince v. Massachusetts, 321 U.S. 158, 169-70 (1944).
288. See id. at 170; Yoder, 406 U.S. at 221-22, 228-29.
134 NEW ENGLAND LAW REVIEW [Vol. 43:105
disagree with it. 289 If the parents are involved in incestuous relationships or
welfare fraud, the parents are further reinforcing the belief that it is
acceptable to break the law whenever desirable. 290 This is unacceptable and
these considerations along with the potential psychological and physical
impact these practices could have on the children, especially young girls,
are factors judges should spend a substantial amount of time considering
when determining the best interests of the child. Judges should also look
for any warning signs of harmful practices when determining the best
interests of the children involved in custody disputes. 291
CONCLUSION
Although at first it seemed to some that Lawrence v. Texas created a
new, plausible argument for the legalization of polygamy, it is now clear
that Lawrence is a very narrow holding, limited to private, consensual
conduct. 292 If polygamy was legalized, it would have helped polygamous
parents in their argument for child custody. 293 As it stands, however, in
addition to the harmful physical and psychological impact on the children
involved, it is also a concern that polygamy remains an illegal practice. 294
Therefore, when determining child custody, courts, like the district court in
Texas, will be able to consider the fact that a parent is encouraging his or
her child to engage in polygamy. This is because he or she is advocating for
his or her childs participation in illegal conduct. 295 Disregard for the law,
whether based on religious beliefs or not, is unacceptable and cannot be
tolerated. This is especially true when this conduct is likely to cause harm
to those involved. 296
Therefore, although the religious belief in polygamy cannot be the
sole basis for determining child custody through the best interests of the
child standard, the behaviors that accompany this belief should always be
considered and given heavy weight by the judge. 297
289. See In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *2 (Tex. App. May 22,
2008).
290. See supra text accompanying notes 232-55, 269-70.
291. See supra text accompanying notes 180-81.
292. See supra Part III.B.
293. See supra Part III.
294. See supra Part III.C.2.
295. See supra Part III.C.2.
296. See supra Part III.C.1.
297. See supra Part III.C.2.