Speculation Upon The Kody Brown Polygamy Case

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 [1], Brigham Young [2], John Taylor [3], Wilford Woodruff [4], Lorenzo Snow [5], and Joseph F. Smith [6] 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.


[1] 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)

[2] 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)

[3] 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)

[4] The Lord will never give a revelation to abandon Plural Marriage. (Wilford Woodruff, Minutes of the Quorum of Twelve Apostles, 12 Dec 1888)

[5] Though I go to prison, God will not change his law of Celestial Marriage. (Lorenzo Snow, History of Utah, Orson F. Whitney, 1879)

[6] 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)

23 Replies to “Speculation Upon The Kody Brown Polygamy Case”

  1. So, I admit to not having read up on the case really, but it seems like Brown’s obvious hurdle is ripeness: I would give immense odds that his suit is dismissed. If he had been charged with a crime already, then it would be a different story.

    That aside, it seems like a no-brainer under Lawrence v. Texas.

  2. It does seem like a no-brainer. But 1.) this is Utah, and 2.) I think a lot of the general population will confuse this case with that of Warren Jeffs, though it is very different.

  3. Kody Brown is the type of creepy guy that makes me uncomfortable with polygamy. I do not really care whether it is legal or not, but the TLC show has reinforced my sense that polygamy is immoral.

  4. Reynolds is unfortunately too entrenched for an overruling to be likely. The Supreme Court basically affirmed it in the much more recent Employment Division v. Smith, which also restricts the freedom of religious practice. (The LDS church joined with the liberals on the Supreme Court in disagreeing with the decision in Smith).

    Brown will be dismissed, as Kullervo notes, on procedural issues. If it or another case like it actually gets examined on the issue of polygamy, I’m guessing the polygamists will lose on the local level (assuming it’s in Utah); I believe, however, that they would win on appeal due to Lawrence and other cases like Lawrence.

  5. Kody Brown creepy? I couldn’t disagree more. To me he’s an ideal plaintiff. He comes across as normal, not weird, and his wives are mature women not of the teenage variety. The family seems entirely normal to me, but for the multiplicity of wives. I hope he wins.

  6. I disagree with the assertion that polygamy was not widely practiced in nineteenth century Utah. Most people have at least one polygamous ancestor if they are descended from people who lived during that era and location. I myself didn’t realize I had polygamous ancestors until adulthood. I will look for a resource to verify how widespread polygamy was in the Utah territory.

  7. My 3 to 5:

    Joseph Smith reluctantly practiced polygamy–and instructed a select few to also practice it–because God told him to. Once the Saints reached the Great Basin, polygamy represented a powerful threat to the U.S.A.’s Manifest Destiny agenda and became a perfect, socially- applaudable proxy for further unsuccessful genocidal efforts, like Johnson’s Army march. Mormon leadership soon realized that Mormonism (e.g., Kingdom building) would not survive much longer unless the Saints capitulated to the U.S.A. and discontinued polygamy. In the ensuing years, the Church phased out polygamy in exchange for statehood. Since then, the vast majority of Mormons practice monogamy but are tolerant of non-abusive polygamist in today’s pluralistic society.

  8. I would also characterize the mainstream LDS’s decision on polygamy at the turn of the last century as “suspended” instead of discontinued. In fact, we still practice a form of polygamy: a man can be still be sealed to additional mortal women in the temple even if he was previous sealed to a wife that predeceased him.

  9. JJ #3: re “polygamy is immoral” — how do you reconcile that with Joseph Smith being a prophet? I don’t think you are alone at all in this sentiment, so I wonder how we are changing the story we tell about him to fit with the distaste of polygamy. Shall members say he was mistaken on the issue? I know many who do.

  10. Tim #4 and Kevin #5:
    Polygamy advocates are banking on the idea that Kody is a non-“creepy” guy-next-door and that his brand of adult consenting polygamy is non-threatening enough to make a good court case. I agree that it will probably have to go to appeal, but if it gets that far, the Browns might have a good chance.

  11. Aerin #7:
    On polygamy being widely practiced, see Ben Park’s recent post, Quantifying Polygamy. Indeed polygamy was more widely practiced than is generally known. However, in this post I am merely trying to tease out the archetypal story that Mormons tell themselves about their history. That this is still widespread is demonstrated by the Mormon Defense League’s recent description of polygamy as a limited practice.

  12. Eric S #9 and 10:
    Thank you for your 3-5 sentences. I wish we could have more people contribute so we could look at what similarities we all have in our heads as to the church narrative of polygamy. You and the OP are agreed on

    + JS being commanded
    + JS being reluctant
    + limited practice
    + political reasons for discontinuance
    + monogamy as standard for LDS today

    Do you think a standard narrative should also include the idea that polygamy will continue in the eternities? Is this one of the points that is in flux today?

  13. Widespread vs. limited. It is whether you are talking about the men or the women. Since often history ignores women, if a man looks out in priesthood meeting or looks at his written rolls of the church male priesthood holders he sees only 15% of men (or something like that) who are practicing polygamy, therefore, it had the reputation of being limited.
    But if for every one man you had three wives, it changes the stats for women or for society at large.
    As for descendents, if 15% of men were living it, but three women were bearing children for those men, you would have 15% of the men having 1/3 or so of the children. And chances are in 150 years those 1/3 have intermarried with the descendents of the non polygamy men’s descendents so most Mormons have one or some polygamy ancestors (but not every branch is polygamist).

  14. My 3-5:

    The will of God is that a man shall only have one wife (see Jacob 2), but at times will command otherwise (see verse 30). Joseph Smith was commanded otherwise. Once the will of God was satisfied, the practice of plural marriage came to an eventual end. Some members of the church, and even church leaders, were in error in believing that the practive would never change, which is contradictory to continuing revelation.

    Or something to that effect.

  15. Eric, that’s great! It fits well with past and current practice, and allows for the church to continue to forbid plural marriages even if legal. The only problems I see with that story are:
    *explaining how prophets can be so wildly mistaken,
    *reconciling the strong political language in OD1, and
    *dealing with plural marriage in the afterlife.

  16. #14 Bored

    Well, we believe that a man may (not must) be “sealed” to more than one woman if those to whom he has previously been sealed predecease him. LDS practice this now. So it is not a question of whether we believe that practice exists. To me, the greater questions is, “OK, what are the post-mortal implications of being sealed on earth to more than one woman?” There is nothing written out there on this. There are no direct answers or insight. The closest thing we can use to speculate is that we believe that things “bound on earth are bound in heaven.” But what that means, and how that plays out, exactly, I have no idea. I can guess what *I* think it means, but that’s just conjecture at this point I think.

  17. As someone what is sealed to two women the whole issue of the continuing belief in the possibility of postmortal polygyny is important to me. There seems to be a tendency in the church in the last decade or two to downplay any postmortal relationship other than monogamy, probably as part of our attempt to distance ourselves from those practicing polygamy in this life today. Being forced to choose between two individuals with who I have had long term committed relationships which began over temple altars isn’t an option I would accept. If my sealings aren’t valid in the eternities, then I think we had better question whether any mortal family relationships have postmortal validity.

  18. Re: polygamy
    BiV ought to know my position well enough for me to not bother going into too much detail here.

    And I largely agree with her 3-5 as being the standard LDS understanding of the topic — so I didn’t make one up of my own.

    Re: the current sealing policy
    I think it does a lot of unfairness to female widows [e.g. making her choose to remove her first sealing or choose to have all of her second set of children be sealed de facto to her first husband].

    However when all parties are deceased — the standard practice is to evenly apply polygynous and polyandrous sealings across-the-board. This leads to a conclusion that, in heaven, there are polygynous and polyandrous families. God desires His family to be sealed to Him in such a way that all Gods have all things common — equal in the bonds of all things [which include marital bonds].

    Most LDS (who are contently comfortable with monogamy) will explain the post-humous polygynous/polyandrous sealings in terms of a sort-of “seal ‘em all, let God sort it out” type of administrative policy. However, for me, following the logic that we “seal ‘em all“, knowing full-well that only one will stick — leads me to a rather uninspiring conclusion that we don’t know what we’re doing and are just using sacred ordinances as a way to cover all the bases [for whatever heaven may be like].

    Re: the Brown’s legal case
    I’ve read the suit filed — and the logic is air tight. Adults are already allowed to have sexual relations outside of the one-and-only allowed state-issued marriage license. Sometimes it even produces children.

    The only difference in a plural marriage household is that the adults have the decency to do so under the bonds of matrimony, covenanting to co-habitate, have further relations, and raise any resulting offspring.

    I predict they won’t win anything, mainly b/c (as you mentioned) he’s only listing “persecution” as wrong-doing against him, this isn’t in response to charges filed, etc. But the point made in their case is spot-on right.

  19. I think I am voting creepy but that he does try to appear “mainstream”.

    I’m somewhat surprised that people have said Joseph Smith was reluctant. Years ago I was intrigued by this topic and read everything I could find on the topic. Not all were “church-sanctioned” readings and most of them declared that Joseph was very interested in polygamy. I’d like people’s sources if they have them 🙂

  20. I think it’s funny that the fundamentalists are wringing their hands over getting “decriminalized as a result of the homosexual movement” — in the same way that a lot of people who support consensual polyamory are wringing their hands over helping religious fundamentalist polygamists.

    That’s the way civil rights work, though. The same rights for yourself as for people you don’t personally like…

  21. chanson, some fundamentalist feel that way, but not all. Personally, I don’t feel that government has any business in sanctioning or regulating marriage covenants, whether those covenants are made between straight couples, gay couples, or polygamist. Likewise, I don’t think anyone should be forced to accept the covenants that I make.

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