Taken from remarks made by a panel at the 2011 Sunstone Symposium. Participants were Kaimi Wenger, asst. professor at Thomas Jefferson Law School; Ben Winslow, multi-media journalist for Fox 13 News; DeWayne Hafen, practicing polygamist from Baja California; Cheryl Bruno, permablogger at FPR. Also remarks made at a meeting of the Apostolic United Brethren in Rocky Ridge, Utah, 8/7/11.
It doesn’t take a law degree to understand the ins and outs of the Kody Brown Polygamy case currently being filed in Utah. But it does take an understanding of a few key points. For example, to how many people do you have to be married to be prosecuted for bigamy in Utah? Did you answer two or more? Nope. It’s zero. Because of cohabitation laws which originated to facilitate conviction of nineteenth-century Mormons, all you have to do is be sleeping with someone who is currently married. You’d better watch out if your girlfriend’s divorce hasn’t gone through yet! Kody Brown, well-known star of the TLC show “Sister Wives” and husband of four seeks decriminalization of polygamy, an action which is being followed with great excitement or trepidation by interested parties throughout the state.
Decriminalization is not the same as legalization of polygamy. Many people are asking how this will affect insurance, health care, and even immigration in the state, but these policies will scarcely be touched. Decriminalization will not make polygamy legal. But in situations such as child custody disagreements, plural families are unable to present a case in court because they are felons. Plural wives don’t report abuse in many cases, because they can themselves be convicted of a crime.
In order to make polygamy legal, the courts would have to overturn Reynolds v. United States, an 1878 case where it was held that religious duty is not a suitable defense to the charge of bigamy.
Brown v. Herbert does not seek to overturn Reynolds. It simply notes disparate treatment of religious polygamists and asks that private intimate behavior between consenting adults not be subject to prosecution. Because in 2003 the US Supreme Court struck down laws criminalizing sex between gay and lesbian individuals in Lawrence v. Texas, the same logic could apply to anti-polygamy laws.
One more wrinkle in the case is important. Kody Brown has not been charged with a crime. His lawsuit depends upon whether the courts agree to hear his complaint.
I believe that the story of polygamy in the Church has become almost archetypal. Try this: In 3 to 5 sentences, write the LDS position on polygamy, including why the practice was ended. 3 to 5 sentences do not allow for historical nuance, so we get the broad picture. What did you come up with? Was it something like this:
Joseph Smith didn’t want to live polygamy, but he was commanded to do it. Only a small percentage of the Church ever practiced it, and it helped to bring widows and single women across the plains. Because it was no longer legal, the Saints were told to discontinue polygamy, and LDS members in good standing do not live it today. (I would be fascinated to read your 3-5 sentence statement in the comments below, and compare how it concurs or differs from the above.)
It is interesting that the rationale for stopping the practice of polygamy rests almost completely upon the circumstance of its illegality. A close look at Official Declaration 1 shows the political context – the declaration is a response to the Utah commission. Wilford Woodruff declares that inasmuch as laws have been enacted forbidding plural marriage, his intention is to submit to these laws. He advises the Latter-day Saints to refrain as well. There is no other reasoning given for the discontinuance of the Principle.Early Latter-day prophets Joseph Smith , Brigham Young , John Taylor , Wilford Woodruff , Lorenzo Snow , and Joseph F. Smith  insisted that celestial plural marriage was an eternal principle, necessary for exaltation in the highest degree, and would never be withdrawn. In order to comply with United States law, it was discontinued. Many members believed that one day it would be reinstated. And in fact, temple ordinances continued and still continue to allow for the practice of plural wives in the eternities. Now there is a possibility that polygamy may be decriminalized. How would the Latter-day Saints have to change their story to accommodate this development? What would you add or subtract to your 3-5 sentences to reconcile the prophetic statements below and a change in the law?
Fundamentalist churches are already grappling with the issue. The Apostolic United Brethren (AUB), from which tradition Kody Brown hails, has voiced its disapproval of his lawsuit. In a public sacrament meeting on Sunday, August 7, 2011, Dave Watson of the Priesthood Council warned that “no one has the right to go off half-cocked and take it upon himself to try to decriminalize plural marriage on the coat-tails of legislation passed on gay rights.” The only acceptable way to approach the matter is to reverse the Reynolds decision, Watson insisted. He further stated, “Do I want to see [plural marriage] dragged through the courts and decriminalized as a result of the homosexual movement? I will not stand for it. The ladder is leaning against the wrong wall.”
I very much doubt that LDS leaders will be as forthcoming in discussing their views on pending legislation on polygamy. However, we have seen a stronger and stronger polarization against our polygamous roots in the past few decades. I believe that in order to maintain this stance in the face of coming legislation, the LDS will have to subtly change the story we tell ourselves about our history.
 It is an eternal principle, and was given by way of commandment and not by way of instruction. (Joseph Smith, Contributor 5:259; History of the Church 6:280; TPJS p. 94)
 For so God help us, we will never give up that holy law that noble prophets laid down their lives to maintain…The powers of hell will do their utmost to get this people to give up that holy low which God designs to maintain. (Brigham Young, Life of Mosiah Hancock, p. 48)
 It is an eternal part of our religion, and we will never relinquish it — We cannot withdraw or renounce it — He has promised to maintain it. (John Taylor, Millennial Star 47:708, 9 Nov 1855)
 The Lord will never give a revelation to abandon Plural Marriage. (Wilford Woodruff, Minutes of the Quorum of Twelve Apostles, 12 Dec 1888)
 Though I go to prison, God will not change his law of Celestial Marriage. (Lorenzo Snow, History of Utah, Orson F. Whitney, 1879)
 Some people have supposed that the doctrine of plural marriage was a sort of superfluity, or non-essential, to the salvation or exaltation of mankind. In other words, some of the Saints have said, and believe, that a man with one wife, sealed to him by the authority of the Priesthood for time and eternity, will receive an exaltation as great and glorious, if he is faithful, as he possibly could with more than one. I want here to enter my solemn protest against this idea, for I know it is false. (Joseph F. Smith, Journal of Discourses, 20:28-31)