Monday, November 29, 2010

Polygamy on trial: First expert witness will offer controversial testimony

Daphne Branham's excellent summary of the first expert witness. With links to affidavits and resources.

Polygamy on trial: First expert witness will offer controversial testimony

Saturday, November 27, 2010

Marriage, Religion and the State : A Mormon history (Part 8)

RLDS/Community of Christ (1910 to Present)

The RLDS have consistently followed a tradition of monogamous marriage from their origin in 1860 to present day. Notwithstanding this fact, there have been significant changes in doctrine and practices relating to marriage, sexual and gender equality in the organization.

The first movement toward policy change occurred in the 1960s when Sora tribesmen encountered the church in India and wanted to become members. The Sora people were traditionally polygamous and this presented a major difficulty for a church that had defined so much of its identity on opposing polygamy. The problem was complicated further due to strict cultural elements in the Sora tribe; if a husband divorced a wife to join the church, she, along with her children, would be left destitute. After long deliberation, President W. Wallace Smith announced a revelation during the April 1972 World Conference that allowed the church to admit polygamous families under specific restrictions. This revelation caused strong debate and intense controversy among the conference delegates, however, it was eventually accepted as inspired counsel to the church. The document, now known as Doctrine and Covenants Section 150 reads “Monogamy is the basic principle on which Christian married life is built. Yet, as I have said before, there are also those who are not of this fold to whom the saving grace of the gospel must go. When this is done the church must be willing to bear the burden of their sin, nurturing them in the faith, accepting that degree of repentance which it is possible for them to achieve, looking forward to the day when through patience and love they can be free as a people from the sins of the years of their ignorance1” This prophetic guidance affirms the doctrine of monogamous marriage and continues to condemn polygamy as a sin, while at the same time allowing polygamous families to join the RLDS church. Restrictions were placed upon the new members which prohibited them from taking additional wives2. Over the years, since this practice was instituted, polygamy has disappeared in this segment of the Sora community.

While the RLDS tradition has consistently opposed the idea that polygamy is a divine ordinance, there has been a gradual acceptance of the probability that Joseph Smith Jr. originated a system of plural marriage among his closest followers. During the early 1980s, RLDS historian Richard Howard completed a thorough examination of the available evidence and concluded that “Joseph Smith’s theological and doctrinal speculations created the secret, elite, polygamous reality at Nauvoo, beginning about 1844... Joseph saw disaster approaching when the church, threatened by the defection of his councilor in the First Presidency, William Law, was coming under hostile public attack during the spring of 1844. Joseph Smith tried to enlist Nauvoo stake president William Marks to deter the advance of polygamy. Smith, however, was slain before any progress materialized3” In spite of this growing recognition, the RLDS church has maintained the position taken by Joseph Smith III, that if his father was guilty of practicing polygamy he was wrong.4.

In 1984, even greater changes occurred in the RLDS community when the church approved a revelation that opened priesthood ordination to women. The revelation, recorded as Doctrine and Covenants 156, reads “I say to you now, as I have said in the past, that all are called according to the gifts which have been given them. This applies to priesthood as well as to any other aspects of the work. Therefore, do not wonder that some women of the church are being called to priesthood responsibilities. This is in harmony with my will“. This revelation, received by Prophet/President Wallace B Smith, created serious controversy at conference and it was ultimately opposed by a large percentage of the conference delegates. Accepted as revelation with a majority vote, the RLDS church became one of the first American denominations to ordain women to the priesthood.5 Sadly, about one third of the membership left the church and this defection led to the formation of the Restorationist LDS and the Remnant LDS movements.

The RLDS church has made several attempts to understand the dilemma of homosexuality in the church. During 1978, the RLDS First Presidency began questioning whether the previous 1961 Standing High Council memorandum, entitled “Homosexuality and Other Sexual Perversions”, was the most appropriate stance for the church. A committee was instituted to study the issue and this resulted in a new High Council memorandum on “Homosexuality” that was released in 1982. This report clearly differentiated between homosexual orientation, “a condition over which a person may have little or no control” and homosexual activity which is “considered immoral and cannot be condoned by the church”. The statement continued to affirm the worth of all persons; “homosexuals as well as heterosexuals” are children of God and have full claim upon the acceptance ... and care of the church”. The guidelines counsel that practicing homosexuals should not be admitted to the priesthood, as these acts were compared to heterosexual promiscuity. The statement highlighted the importance of marriage in relation to the life of homosexual church members and the document “ affirms that Christian marriage is a sacred covenant relationship, ordained of God between a man and a woman. The sacrament of marriage has a long theological and ecclesiastical history, and the symbolism is exclusively heterosexual.” The marriage definition continued to state that “ Homosexual unions are not and should not be considered marriages in the sacramental sense.”

In 1997, President Grant McMurray called for a new vision for the church which centered on a “Christ-centered theology of peace and justice”. With this new direction, the 2000 World Conference enacted legislation to change the name of the church from the RLDS church to the Community of Christ (CofChrist). Soon afterwards, in a 2002 World Conference Sermon, President Grant McMurray admitted that some exceptions had been made through the ordination of some sexually active homosexual men and women.6 In response to this address, a statement was released that reaffirmed a 1982 Standing High Council statement that prohibited the ordination of sexually active homosexual members “while the church continues to seek God’s direction and engages in process that honors our community and the principles of common consent that govern us”.

President McMurray’s announcement led to a World Church Leadership Council in September of 2002. The summary of the retreat recognized that the church had been called to create a loving and respectful dialogue on the divisive issue of sexuality. Stating “if the church is to be faithful to the demands of the gospel it will often be called beyond the boundaries of certainty to explore its implications in a complex world. We are deeply committed to seeking God’s direction and embodying the life and ministry of Jesus in our own personal ministry and in the lived-out witness of the church.”, the church leadership embarked on a path to explore existing concepts about homosexuality in the context of church and international culture. World events continued along with this exploration within the church. Several countries, including The Netherlands (2001), Belgium (2003) and Canada (2005) legalized same-sex unions. During 2005, an addition was made to the church administrators handbook specifying that CoChrist ministers were not authorized to perform same-sex marriages, even in jurisdictions where these marriages are legally valid. A committee on Homosexuality in the Church reported the results of a 5 year study at the 2007 World Conference. These findings included common values which included the inestimable worth of each person, noting that some say that lack of love, acceptance and tolerance is immoral while others say that homosexual behaviours are immoral and those who engage in them are to be loved but not fully accepted in the church. It was clearly recognized that the church cannot find unity on these issues through purely human efforts, but only through the power of the Holy Spirit7. Further guidance from the First Presidency was given in May, 2009 stating “To allow Community of Christ priesthood officiate in same-sex marriage, when our policy does not allow it, during a time in which the church still is sorting through this divisive issue, would only cause further division and reduce participation in the discussion process”.

Leading up to the 2010 conference, it became obvious that the church was heading towards a potentially divisive meeting. Of a total of 28 resolutions submitted to the World Conference, 21 were either for or against same-sex marriage or ordination. A series of talking points were circulated which included, “ The principles of the gospel apply equally to heterosexuals and homosexuals. Repentance implies the act of being personally responsible for choices; Christian freedom never allows one to live as he or she selfishly pleases.” and “We are acutely aware of the pain and frustration of individuals and groups who view same-sex marriage from various personal, scriptural, theological, legal, and sacramental perspectives. Matters of human sexuality are so deeply imbedded in our individual, social, and cultural identities that it is difficult for people to separate examination of related issues from their underlying sense of self. Because preserving one’s sense of self-identity is a fundamental need of human beings, consideration of human sexuality, homosexuality, and same-sex marriage issues easily becomes emotionally charged and conflicted. Further, consideration of such issues in an international community of faith, with the added complexities of diverse customs and languages, must be done with great care, understanding, and sensitivity."

As the date for World Conference neared, President Stephen Veazey presented a revelation in January, 2010 regarding sexuality and other divisive issues. Concerning sexuality and marriage, the document stated “6 a. As revealed in Christ, God, the Creator of all, ultimately is concerned about behaviors and relationships that uphold the worth and giftedness of all people and that protect the most vulnerable. Such relationships are to be rooted in the principles of Christ-like love, mutual respect, responsibility, justice, covenant, and faithfulness, against which there is no law.b.If the church more fully will understand and consistently apply these principles, questions arising about responsible human sexuality; gender identities, roles, and relationships; marriage; and other issues may be resolved according to God’s divine purposes. Be assured, nothing within these principles condones selfish, irresponsible, promiscuous, degrading, or abusive relationships”. Recognizing the complexity of dealing with this controversial issue across a diverse international church, the inspired counsel also stated “A worldwide prophetic church must develop cultural awareness and sensitivity to distinguish between issues that should be addressed by the World Conference and those that are best resolved nationally or in other ways.... d. Where possible and appropriate, convene national or field conferences to provide opportunities for broader dialogue, understanding, and consent. In those gatherings, let the spirit of love, justice, and truth prevail.”.

After almost a week of respectful and passionate discussion in priesthood quorums and in the general assembly, on April 14, 2010 the World Conference delegates voted to receive President Veazey’s document, now Doctrine and Covenants 164, as inspired counsel for the church. With the acceptance of Section 164, all 21 legislative issues concerning sexuality were removed from the conference legislative sessions. The church will now begin planning conferences to consider these issues in jurisdictions where they can be discussed by the membership. It is probable that policies may diverge between countries as it is not possible to discuss issues of sexual orientation in many jurisdictions.

1 Community of Christ Doctrine and Covenants Section 150
3 Restoration Scriptures, p. 191
4 The Sacrament of Marriage b Harry Fielding
6 Same-Sex Marriage and Homosexuality Issues in the Church An Overview of Relevant Policies, Doctrine, and Resolutions p. 3
7 2007 World Conference, the church received the report by the Committee on
Homosexuality on the Church. (See Appendix E)
8. Community of Christ Doctrine and Covenants Section 164

Friday, November 26, 2010

Mormon Polygamy on trial - Press coverage and summary from Day4

Day 4 saw opening statements by lawyers representing the Fundamentalist Latter Day Saints and the Canadian Polyamory Association.

The FLDS Lawyer clearly wanted to separate the authoritarian patriarchal structure, and the specter of abuse in the FLDS community from the practice of polygamy. He argued that Polygamy is the only thing on trial. Whether people choose to believe in a divinely inspired prophet and live their lives according to his revelations is a matter of conscience and personal choice, not state policy. He also pointed out that Mormons have been practicing polygamy since the beginning and persecution is nothing new to the followers of the Prophet Joseph Smith.

The CPAA also rejects the current polygamy law. Polyamorists are almost the mirror image of the FLDS - they advocate full gender equality - both women and men can have multiple partners, reject discrimination on the basis of sexual orientation and they honor sexual freedom while living within respectful and committed relationships. The CPAA position quickly highlighted problems with the positions of the BC and Federal Attorneys General. The BC attorney general suggests that polygyny (1 man with multiple wives) should be illegal while polyandry (1 woman with multiple men) should not. This would mean that 3 polyamorist lawyers living in one Vancouver household would be legal (if it was 1 woman 2 men) but the polyamorist lawyer family living next door would be criminal if two of the lawyers happened to be women. He did not begin to mention the problems this would raise when sexual orientation and gender identification issues are included. As for the Canadian AG position, he pointed out that if one group of lesbian lovers decided to hold a party to celebrate their relationship, they would be law-breakers but another group who did not do this would be legal.

If Canadians are not prepared to make people criminals on the basis of the way they choose to live their sexual lives, then it is very difficult to imagine how prosecutors can enforce section 293. On the other hand, if Canadians are ready to allow government to regulate this most deeply personal aspect of human relationship, what does this say about our society?

On the other hand, the CPAA strongly rejects the patriarchal and authoritarian structure of the FLDS and they don't want to be identified with them. Asking how the 2 groups can be distinguished, the CPAA lawyer offered three test questions:
1) do you believe that men have more rights and authority than women?
2) do you practice polygamy as part of your religious beliefs.
3) do you live in a community that is separated from the broader society.

I would offer that only one of these questions is a valid test. The history of radical Christianity shows that several sects - including the Ranters, Seekers, early Quakers, Perfectionists and even the Mormons during the time of Joseph Smith - practiced a form of complex marriage. This practice included both polygyny and polyandry and it was based on the belief that Christian salvation freed the soul from all sin. It was also consistent with the communal ideal as exemplified by the early Apostles in Acts 2. These radical believers saw that possessions separated us from God and from each other.

If possession is a bad thing, leading to jealousy and idolatry, is there any difference between possession of goods and possession of people?

As for living in communities, does this mean that members of the Federation of Egalitarian Ecovillages, who endorse polyamory as a founding principle, are breaking the law because they choose not to live in a city?

Is it right to call a polyamorist a criminal if they see their lifestyle as a part of their spiritual practice, but a secular polyamorist upholds the law ?

As for the abuse of authority in the FLDS - that is responsible for tearing apart families, isolating and terrifying individuals, treating women like commodities, discarding young men and enslaving both men and women to build up incredible wealth for a privileged few in the name of religion - that really should be punished to the full extent of the law.

On the other hand, if the polygamy law is upheld, does it have any hope to address these problems?

Not if history is any indication. Mormon polygamists have been jailed, disenfranchised, driven by armed mobs, subjected to state-endorsed extermination orders, had their church dissolved and assets seized, and yet polygamy - with all its attendant abuse of authority- still continued. Mormon polygamists may go into hiding, migrate to more favourable locations and separate themselves from the outside world, but they will not stop practicing their faith. Unfortunately, legal prosecution seems to make them stronger, more insular, consolidated and afraid of the outside world. It confirms that they are God's chosen people and strengthens their belief in their Prophets and their way of life.

If we really want to do something to help the women and children in Bountiful, maybe we should try a different approach.

Should some kinds of polygamy be legal, but not others?

Polyamorists decry anti-polygamy law - The Globe and Mail

Multiple-marriage advocate tests the waters on polygamy law - The Globe and Mail

Canadian Polyamory Advocacy Association » A right to live with those we love

Thursday, November 25, 2010

Mormon Polygamy on Trial : Day 4 of the BC Charter case

Notes from (Day 4)

FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints) attorney

Section 293 requires the crown to prove that a person lives with 2 or more people in a relationship that is binding on the person's conscience for some period of time.

Referred to a legal precedent of a 1891 test case on section 293 from Quebec, where 2 people were living with people who there were not married to. In the Judge's findings, he stated that the law (section 293) only applied to “Mormons and their like”, The object was taken from the Edmunds act and was not designed to suppress immorality. It was only designed to suppress Mormons. There must be some form of ceremony binding on the people involved. It does not prohibit behaviour of living with more than one person, or having sex with more than one person or having children with more than one person. The Section strikes at the motivation for engaging in the behavior - a commitment binding on the conscience.

Highlights the polygamy definition given by the AG BC because BC is the enforcer of the law. AG previously said “Section 293 prohibits marriages or marriage like relationships that include a ceremony performed by someone purported to have authority having power or influence over the parties that is binding on the conscience.” AG now says “Polygynous marriage performed by someone purported to have authority binding on the conscience of the individuals. The violation of the law cannot depend on the action of a third party. It must be a voluntary act of the participants only.

293 is a crime of status. It prohibits people from participating in an act that is otherwise lawful, only because it is performed by more than 2 persons.

The fundamentalist LDS community is following a form of mormonism that originated with Joseph Smith and has been unpopular and persecuted since the beginning. They believe that they are led by a prophet who receives revelations from God. They recognize that if they are forced to change their beliefs and actions to those of the greater society then they will lose their religion. The FLDS does not seek to justify the abuse that people have suffered in the FLDS community and believe that those abuses should be investigated and prosecuted - if necessary. Refutes the idea of some experts that suggest the people are “somehow brain damaged” and incapable of giving consent.

The FLDS (not including Blackmore’s followers) has requested a headcount to disclose that the community is comprised of 550 people 183 are over 18, all but 68 are married or previously married. 115 are married. 65 are monogamous and 50 are polygamous. 16 affidavits are presented to show social harm. Most are from Americans.

FLDS will provide positive affidavits from people living in Bountiful. Some of the married witnesses were married at 16 or 17. The church now holds that marriage should not occur before 18. Will also provide a male witness that has willingly left the community and is happily adjusted and keeps in touch with this family (who is that????). Problems arise in the community but they are afraid to access help because they are afraid of jail or that the family will be ripped apart. The anti- polygamy law forces them to separate from society. If polygamy were de-criminalized (not condoned or approved), it may ameliourate the harms caused by polygamy because they would be more able to find help for problems that occur in Bountiful.

Canadian Polyamory Association (CPAA)

CPAA will hold comments to secondary targets of the law. The concept of reading down allows for a surgical deployment of the law. The AG has decided not to do that - rather planning to use a blanket approach. CPAA holds this blanket approach is contrary to the constitution and goes against the deepest beliefs of Canadians. Supports the comments of the Amicus and will not repeat them.

Patriarchal beliefs suggest that only men have the right to have multiple partners. This is also a broader problem because men have all the power in the entire community. Because of this obvious trait, the media and others focus on this old-fashioned power imbalance. However, the BC AG has determined to focus their attention to a much broader community - including the polyamorists.

The difference between the 2 communities: In Polyamory, men and women have equal rights - including full gender equality .2 . No religious tradition - 3. Polyamory occurs outside closed communities. Polyamory is not attracting negative social stigma.

Surprized when the AG did not take a surgical approach.

BC AG initially followed an interesting idea that the law should only apply to the known historical forms of polygamy. Since homosexual pairings were not known at that time (1890s), then the law does not apply to them. Also multi-men for one women was not widely known, the law could not hold to them. All polygamy groups at that time had a long religious tradition.

CPAA does not understand why the law does not distinguish on this basis.

Currently, with the AG position, if there is a household in Vancouver where all 3 partners are lawyers - one man and two women - they are breaking the law. However, if there is a house next door with one woman and two men they are not breaking the law.

If another household has 3 lesbian members and they have a party to celebrate their relationship in some public way, then according to the AG of Canada, they are criminal. If there is another gay multi-partner family that does not have a party, they are not criminals. This is deeply disturbing to the polyamorous community.

Section 293 has deeply draconian elements. It applies to the relationship itself. It can break up loving families and is as deep an intrusion into the most personal elements of an individual’s life as can be imagined.

All the evidence of harm comes from a deeply patriarchal family structure. There is no evidence that other forms are harmful. Some contention of social harm states that men and women are genetically different. If men are allowed freedom in their sexual choices then we would naturally evolve to a patriarchal polygynous society. There is no proof for these conjectures and these same sort of evolutionary arguments are used when there is no real argument. They have also has been used to disenfranchise and denigrate women.

The crown has not done any surveys or interviewed any individuals who have been harmed by polyamory. CPAA believes if the AG had done the research, then it would have refuted the claims on which they are basing their case.

Polyamory is based upon a desire to experiment with new forms of relationships. In that experiment, they are exploring human emotions like jealousy and finding joys in their partners having other relationships.

Section 293 criminalizes individuals and implies a risk that the State can intrude and break-up families. AG argues that it must use a blanket approach because it cannot distinguish between patriarchal and polyamorous relationships.

Can be distinguished with simple questions:
Do you believe that men and women have the same rights and freedoms?
Are your beliefs based upon long religious established traditions?

Currently, if a man and 2 women show up at the border and give the same address, are they breaking the law? Now they would have to ask if the people are room mates or whether they are having sex.

The attempts of the AG to use a blanket approach against polygamy violates fundamental Canadian values about diversity, ability to socially experiment and the freedom to live the way we choose in our own households.

Wednesday, November 24, 2010

Summary of Day 3 of the BC Supreme Court Polygamy charter question

Opening statements continued today. First on the agenda were parties that supported the BC Attorney General’s position that Section 293, which prohibits polygamy, is constitutional. These groups included the Canadian Coalition on the rights of children (CCRC) and the Asper Center for constitutional rights, Christian Legal Fellowship, BC Teacher’s federation (BCTF), Beyond Borders and STOP Polygamy in Canada.

The afternoon saw the opening statements from groups who determined that Section 293 is unconstitutional. The Amicus, who is presenting the Crown’s primary argument against the law, began the proceedings. He was followed by Doug Christie from Canadian Council for Free Expression and the BC Civil Liberties Association (BCCLA).

For more complete details (from my personal perspective), please see the following post. If you want to see what the press is reporting, you can go to the following links.

CBC News - British Columbia - Polygamy laws unconstitutional, lawyer says

Abused sisters stand as witnesses to harms of polygamy

Polygamy law is unconstitutional, B.C. court told - The Globe and Mail

Polygamy: Legal in Canada | - Canada - Features

Notes for Day 3: BC Supreme Court Polygamy charter question

Opening statements from Canadian Coalition on the rights of children (CCRC) and the Asper Center for constitutional rights, Christian Legal Fellowship, BC Teacher’s federation (BCTF), Beyond Borders and STOP Polygamy in Canada. All are in favor of Section 293.

Opening statements from The Amicus, who is presenting the Crown’s primary argument against the law, followed by Doug Christie from Canadian Council for Free Expression and the BC Civil Liberties Association (BCCLA).

CCRC is primarily focused on the rights of the child. Their position is that it is the government’s obligation, under UN Charter commitments. to insure the rights of children are upheld. Polygamy in a communal setting adversely affects the rights of children and if Section 293 is properly upheld it would be constitutional because polygamy produces undue risk to children. However, they do not believe the law should apply to multi-partner relationships, like polyamory, that involve consenting adults.

Their position is that Polygamy as intended in section 293 applies to polygyny (one man with more than one woman) that occurs in a communal setting. This core definition of polygamy is supportable in a criminal setting. The current law says that everyone involved in the relationship is guilty, however, they contend that anyone who is under 18 when they are married cannot be liable. “Only people wielding power should be charged, not those vulnerable to it”.

They further argue that polygamy directly harms girls rights. Their reports highlight connections between polygamy, child brides, trafficking of girls and forced marriages. There is also heightened risk of physical, sexual and psychological abuses. In North America, as practiced by the FLDS Mormons, the church leaders decide who gets married, who will marry who, etc. This causes major age differences between the husband and wife, which often results in power imbalances. Girls also lose their rights to contraception, their right to an education and they often must care for children of their sister wives. Boys are forced to work early, forsaking education, and the profits go to the community. They provide their work to the community, and receive only a small allowance, in hopes that they will be given a wife. Boys and girls are also prohibited from associating so the church leaders can have more power over the girls. Men who oppose the church leadership have their wives and children taken from them and assigned to “more faithful” followers.

CCRC contends that their evidence shows that polygamy is the center point of a structural system that enables church control of marriage, exploitive reproductive practices, exploitive labor practices and cessation of education.

Christian Legal Fellowship (CLF)

The Lawyer from CLF provided two affidavits and three supplemental reports and then began with “Three months ago I toured the Sultan’s harem”. He continued to explain that polygamy was responsible for disintegration of the family and the fall of the Ottoman Empire. They have several expert reports which they contend will show that polygamy is abusive of all women, young and old because it limits their free will. Polygamy also has tremendous negative effects on the “lost boys” who must leave the community. It is also a fraud on society because it harms the benefits of marriage.

CLF claims that the courts should only determine if polygamy is harmful and then turn the matter over to parliament to create laws rather than allow the courts to interpret existing laws. Public policy cases, like this one, goes to the harm that is caused by polygamy. Therefore parliament, and the criminal code, should have the right to regulate and define marriage. Some argue that the individual has the right to define what marriage means to them. They argue the Supreme court has already determined, in a case that involved consensual incest between adults, that the individual does not have the right to define marriage.

CLF also brought forward international conventions, treaties and declarations regarding the rights of children that Canada is committed to follow. They concluded that while they generally uphold the importance of religious freedom under the constitution, and while they trust that the FLDS are sincere in their beliefs, they believe that there is a clear limitation to these rights when there is harm to others.

BC Teachers Federation (BCTF)

BCTF stressed the importance of balancing charter rights, however, they are particularly interested in children’s access to quality education. BCTF defines polygamy as “polygyny as it is practiced in Bountiful”.

They argue that Canadian fundamental rights support democratic values, public order and well being of citizens, therefore section 293 does not infringe on these constitutional rights. They further assert that freedom of religion is not a stand-alone right and must be balanced with other rights. Furthermore, the rights of one person cannot undermine the rights of another and the rights of one person cannot undermine the rights of all persons that the charter was designed to uphold.

BCTF argued that this is more than a theoretical case, more than 400 children are attending the schools in Bountiful and their rights are engaged. Proper balancing of rights of the women and children is required in assessing the impact on other rights that may be compromised in Section 293.

STOP Polygamy in Canada

STOP’s position is consistent with the BC AG. Polygamy, as practiced by the FLDS, harms women, children, boys. and deprives them of their Canadian rights. It runs counter to the values of a democratic society. Section 293 is not the state over-running a religion or the rights of one religion over-running another. Polygamy forms authoritarian societies and these societies over-run individual rights.

Their expert witnesses include a professor who has studied the historical anti-polygamy cases from the US and determined that they were not specifically targeting the Mormon church (on a personal note - I don’t know how this is possible), a family law professor who considers the effects on women and children, an expert witness from Edmonton who has studied the lost boys, and a doctor from New York who has documented higher rates of depression and other harms in polygamous Muslim families relative to monogamous ones.

STOP believes that Section 293 passes the Oakes test - in preserving the values necessary for a free and democratic society.

This marked the end of openings for parties that aligned with the attorney general position.

Amicus opening statement:

This reference is not about approving polygamy: If 293 is struck down, as it must be as a matter of law, then being polygamous no longer makes someone a criminal. A polygamous marriage, no matter how defined or how it is made up no longer exposes someone to prison. If 293 is unconstitutional, the state is still not supporting polygamous marriage in any manner. Example of gays and lesbians is significant. In 1969, homosexuality was de-criminalized and it took 20 years before gay marriage was recognized.

The case is also not about polygamy itself. It is about Section 293. If the law is bad, it should be struck down, notwithstanding one’s views about polygamy. Polygamy is a federal crime, not a provincial one, however, the BC AG indicated that polygyny is a crime while other forms are not and the AG for Canada says that the law applies to both polygyny and polyandry. Amicus agrees with Canada’s definition after a very detailed study of the existing law. Law criminalizes any time more than two people are in a relationship. This was the original intent of the statute; ie. enshrined marriage as between two people.

Section 293 criminalizes the women as well as the men. Generally speaking, the Law does not intend to criminalize the victims. Section 293 did not treat women as victims but rather as co-defendants. The BC AG presents a modern argument to justify why the law was passed but this is not the way the law reads. Section 293 in 1890 was about stopping Mormons and aboriginals because Christian marriage was defined as one man and one woman. This was the legal definition of marriage in Canada until 2005. .

Rejects the idea that a prosecutor can determine how to use the law wisely. The law criminalizes any union of any kind that includes 3 or more people. The Crown does not even have to prove the intention of sexual relations. Issues of young women and girls will be addressed separately. BC AG contends that women in these relationships are brain-washed and cannot truly give consent. Amicus contends that many women in these relationships want to enter into these relationships freely in the same way other people choose to enter into monogamous marriages. Many of these women grew up believing that this is the best way to live - believing just as strongly as many people believe monogamous marriage is the right way. Since most people do not experience polygamy first hand, opinions are often founded on ignorance, bias, prejudice, etc. This is why constitutional protection is needed.

Constitutional protection is never needed to protect people who agree with the mainstream.

Second conclusion from evidence: There are tremendous tales of suffering in monogamous marriages that go wrong. There is physical and sexual abuse, abuse of alchohol and drugs, abuse of children, etc. That abuses exist in monogamous and polygamous settings is not the question. The operative difference in polygamy is that there is a greater reluctance to call on the authorities. If Monogamous marriage were illegal, people in these marriages would have a great reluctance to call on authorities for help because they are already criminals by virtue of their marriage. Section 293 places a stigma of isolation around the very people the law intends to help.

Amicus also recounted how Canada has liberalized many facets of human sexual behavior. This includes homosexual relationships, swingers, adultery, common-law marriages, etc. Criminalization of this one facet increases the insular nature of these communities. Women who choose polygamy are stigmatized.

Expert Witnesses, including professor Campbell, have interviewed many women in Bountiful and she has studied the FLDS theology extensively. Her findings include the degree of choice that women in Bountiful can exercise regarding marriage choices and reproductive choices. Expert witnesses also include legal experts and psychologists who have worked with FLDS people and studied all legal aspects - including early Mormon legal actions.

Addressing the second legal question - in terms of what constitutes an offense to the law - there are no limitations regarding consent, sexual conduct, type of relationship structure, etc. Any form of multi-person relationship clearly contravenes the law. Elements of the offense do not include involvement of minors, undo influence, lack of consent, imbalance of power, abuse of authority, etc. The language in the act actually punishes those who consent - not those who do not. Reading these elements into the law dramatically intrude on the legislative function.

The Amicus will advance freedom of religion - as this was the focus of the 1890 act. Section 293 contravenes freedom of religion for fundamentalist mormons and as well as for Muslims and Wiccans. However, Mormons are the only ones who require polygamy to reach the highest heaven.

The law does not penalize group sex, no fault divorce, adultery, etc. However, it does seek to prohibit committed group relationships. Many of the harms associated with polygamy are also present in these areas but are not penalized. The code assumes that all monogamy is good and non criminal and this is not true.

The section deprives people the fundamental freedom of choice in terms of their most intimate human relationships. The criminal ban was implemented to curtail a practice that was seen as disgusting by mainstream Christian society of its day. The professed objective of punishing morality are imposed by the secular state over a specific religion.

The law was not instituted with the protection of women in mind. Women at the time were not even persons. The act does not protect women as it criminalizes women for giving free consent in these relationships. Polygamy is not inherently harmful to children. Children are harmed in all forms of relationships. Section 293 penalizes all forms of this type of relationship rather than one where children are involved.

Freedom of association - prevents polygamous activities and criminalizes polygamous groupings. The Amicus does not take the position that polygamy allows a group to perform an action that is illegal for two individuals - abuse or underage marriage for example. However, the law must not criminalize an act that is otherwise legal only because it is performed by a group. The current act says you can enter a marriage like association with one person but no more. While the advocates of the law can’t agree in the definition of polygamy or the elements that are worthy of prosecution, the Amicus believes that the law should be taken as what it says or it will lead to arbitrary enforcement.

AGBC named 4 harms.
harm to moral fabric and democratic processes.
just because monogamy is deeply ingrained does not mean the law must enforce this.
Actually discriminates against polygamous people
Law not originally intended to protect vulnerable people. The idea that gender inequality exists in polygamous relationships but gender inequality never exists in monogamy is disputed.
social harm to the externalities - for example early sexualization of young women and surplus young men. These were ignored in the formation of section 293. As for the early sexualization, it is not in the section at all.
Section is not aimed at targeting bad polygamous relationships because it punishes all polygamous relationships. Penalizes victims and wrong-doers the way the section reads. Enshrines monogamy as the only approved form of marriage.

These types of harms that occur in polygamy also occur in monogamy.

AGBC says 293 it is necessary because it is associated with other ills. However, it penalizes all relationships no matter how beneficial they might be -

There have been only 2 convictions under the 100 yr history. Last one was 1937. AG says law is needed to reduce harm involved with growing polygamy however, there has not been an increase in polygamy in spite of the fact that it has not been prosecuted. People who practice will do it whether it is against the law or not - and it does not appeal to a large number of people in our society. If it did, it would have grown far faster.

Beyond Borders:

Section 293 is unconstitutional if it does not specify that the relationship contains any elements of abuse, imbalance of power, etc.

Polygamous communities often have older men with many young girls. The converse does not occur. The younger girls are conditioned to consent to these relationships and then later feel partially responsible, shamed, etc. Marriage is a lifetime decision, but children cannot adequately make these decisions.

Expulsion from the community presents a threat against those who would inform against the leadership of the community. The leadership consists of elder males. It is predatory. A child needs a feeling of belonging and this leads a girl to see older males as desirable.

To the extent that section 293 infringes upon the constitution, it is justified because of the harm to young girls. Polygamous arranged marriages remove the freedom of choice from young women in order to fulfill religious expectations.

Fundamentalist communities have excessive values on loyalty and deferral to authority. Beyond borders focuses on the nexus of polygamy and child sexual abuse. however, they support the constitutional status of the current law.

Douglas Christie - Canadian council for free expression (Ontario)

Founded for advocating for freedom of expression. Reason for intervention: Freedom of religion and believes that this is a wedge issue that will impact the freedom of many other segments of society beyond polygamy.

Section 293 is contrary to sections 2A and B and cannot be saved by section 1.

All of the factors necessary for reading down section 293 make it an overly convoluted and impossible to enforce.

As in the case of Big M drug mart, one should have the right to have beliefs and the right to manifest these beliefs in terms of worship and practice. Also the right to teach and promulgate.

Section 293 may actually exacerbate the harms that polygamy causes (isolation, etc).

In all cases, governments have much deeper pockets, can hire more experts, etc. than private individuals can. State has over-riding power - and has the power to determine what is a power imbalance for others. There is a danger in leaving the power of defining what is exploitation to bureaucrats. Exploitation exists in all types of relationships. It is best to use existing measures to combat child abuse and other offenses. The criminality of polygamy actually reduces the probability for people in the community to report offenses like child abuse.

Intrusion of the state into religious matters, which is opened by this case, may open the door to wider religious persecutions by the secular state.

BC Civil liberties:

Opening position statement: Reference called court to answer 2 questions. First is statutory conviction. BCCLA adopts submission of the Amicus. Before considering the constitutionality of a provision, it must be determined what the interpretation actually means and the original intent of parliament. The proper analysis of the offense, is intended to capture a broad range of conduct including polygyny, polyandry and consenting relationships between more than 2 individuals.

The BCAG interpreting 293 as polygyny with some form of ceremony is aspirational - reading down is not viable with the language that is suggested here. These arguments for reading down are pointing out the need to re-write the entire act in parliament.

BCCLA says that section 293 breaches the individuals charter rights of liberty and security of the person in ways that are contrary to fundamental justice. Will focus primarily on section 7, in terms of security of person, personal autonomy, privacy, ability of people to choose their most intimate relationships and what seems good to them.

It is important for the court, on a reference rather than between parties to look more broadly in framing the argument. Personal autonomy is most important in determining

Legislative record does not disclose that the original intent was to protect women and children. Parliamentarians of the day found polygamy disgusting. There may have been some background concern for women and children, however these are not as we understand them today.

The section opposes freedom of choice in personal relationships. It holds Patriarchal and demeaning views of women - suggests that women cannot make their own choices.

The state has means that are far less intrusive than an outright ban on plural relationships. There is no denying that harms have been caused - however, these harms occur in all manner of relationships. Section 293 is an over-broad law to address these harms which are already prohibited with other laws.

Canada is a society that tolerates and encourages family difference. Canada accepts legally married couples, common law couples, blended families, etc. Wrong to single out these plural relationships unless there is specific harm in them.

A summary of Day 2 of the BC Supreme Court Polygamy charter question

Day 2 saw the continuation of opening statements.

Attorney General of Canada’s opening statement.

Polygamy causes harm to society at large
harms the state - decrease in civil rights and liberties
democracy rose with monogamy
polygamy subordinates women
women suffer material (economic and educational depravation)
children suffer educational disadvantages, psychological problems
polygamy leaves young men with no opportunity to marry or have a family
young boys must be removed
cohorts of men without marriage partners causes criminality, unemployment and substance abuse
Court does not need to be presented with conclusive social science evidence - rather reasonable apprehension of harm
choice or consent is not relevant.
structure of polygamy has inherent harms
if Canada decriminalized polygamy it would be going against international commitments - trend around the world is to prohibit rather than encourage polygamous relationships. However, no international norm currently exists. Other countries similar to Canada prohibit polygamy

Is section 293 consistent with charter: Yes (with 2a, 2b, 7 and 15)
If 293 is inconsistent, then any inconsistency is justified under section 1

What are necessary elements of the offense? section 293 prohibits multiple marriages and any relationship that mimics lawful marriage. Does not need to involve a minor, abuse of authority, imbalance of power, etc.

Most of Canada’s expert witnesses are from the United States (US law).

Canada’s interpretation:

This legislation is a marriage offense, rather than informal relationship. Having more than one wife. Conjugal defined as being between husband and wife.

Purpose of polygamy provision: same as BC

Proposed interpretation: Section 293 prohibits multiple marriages and marriage-like relationships than mimic lawful marriage.

Fundamental differences between Canada and BC in terms of interpretation. BC equates polygamy with polygyny - Canada does not. Covers same conduct, but some differences exist on the “thin periphery”.

Canada believes that Section 293 does not cover non-formalized multiple partner relationships, whether or not partners are co-habitating, whether partners are same-sex or opposite sex or both.

Whether the law will impact polyamory depends on one’s definition of polyamory. Multi-partner relationship might be polygamous and polyamorous at the same time. Major emphasis on the formalization of the relationship (see Brigham Young roll over in his grave). If the relationship is not formalized in some way, there is no problem.
Bigamy law applies to marriage that occurred in Canada. Polygamy largely covers marriage that occurs relative to some foreign law.

Canada prohibits a multi-party conjugal union with more than one person. This should be interpreted as a form of marriage-like relationship that is not legally valid but is due to some sort of ceremony or ritual that claims to connect two individuals. Incorporates some form of formality - created in the moment of some “marriage-like” ceremony - binding participants together - some performative utterance, like saying “I do”. Conjugal union can only be entered into by some form of consent. More than consent to live together.

Controlling analysis are under Sections 2a and 7 of the charter.

Pg. 25: preventing societal harm: virtually all western countries have seen polygamy to be bad for society. Individuals have fewer freedoms in societies with polygamy. State has legitimate interest in legislating in the institution of marriage. Changing from monogamous/didactic marriage has many complications - relating to pensions, immigration, etc. Prohibition of polygamy correlated with rise in democratic structures correlated over hundred of years. Lack of symmetry degrade women’s dignity. Wide spread events extend beyond the polygamous individuals themselves. Canada would be taking a stark departure from the Norms established by similar states. Harm to women’s emotional psychological and sexual harm. harm to children, psychological harm and underachievement in school. Lost boy phenomena.

REAL women of Canada Opening Statements

Real Women is a group created to promote the interests of women and has the objective of promoting families.

Section 2a declares the freedom of conscience is a fundamental right.

Purpose of prohibition is justified because polygamy harms the functioning of society, the wives and children of polygamous marriages.

When is a belief religious? Canadian courts will examine church documents to determine religious matters - unlike American courts. When freedom of religion is invoked, there is freedom of belief, but actions are prohibited and sincerity of belief is an issues. In deciding issues of freedom of religion, the courts must take into consequence the actual religion. Whether 293 contradicts the constitution will depend on religious doctrines.

Argues that Islam may not protect polygamy because it is under Islamic transactional law but it is morally disfavored. Imams role is only to say that all legal agreements are in place.

Points out that Roman law forbidden polygamy not Christian law - according to Augustine.

Polygamy presents a clear and present danger to women and children. Serious adverse social impacts, can be prohibited without examination of religious doctrines. Would open floodgates of immigration of polygamous families.

Polygamy as practiced by FLDS produces an anti-democratic abomination. Harms equality of women and children.

Not necessary to apply additional elements - including minors, imbalance of power, coercion, etc.

West Coast LEAF Opening statements

Section 293 is constitutional - or it is justified under section 1
Section 293 should be read down to apply to situations that exploit women and girls
polygamy tends in practice to exploit women and girls
where it exploits it should be prohibitted.
What is exploitation - look at section 153 - things like age disparity, evolution of relationship (not middle of night wake-up calls), degree of control over the person, including economic and reproduction control.
Obvious offenses like stat. rape, human traffiking, etc. However, there must be a complanent and a complaint. There is dramatic under-reporting and this is magnified with children and in a closed community.

Reading down to look at concept of harm:
Section 293 is consistent is so far as it is read down to exploitive relationships. Reading down is a judicial perogative. DOes not need that the court find the law invalid but that only the law applies to only one class. If there are 2 interps and one offends the interp and the other does not. The narrow reading is the valid one because the interpretation is consistent with charter. Reading in is different than reading down. Reading in extends the statue, reading down restricts it.

Similar to obscenity laws. What one person finds obscene another does not. depends on situation. same with polygamy.

Court should look at analysis of harm at the breach of the section 293. West coast leaf is not making submission about moral harm, but about psychological and emotional harms. Relevant to analysis are : society where men have multiple wives other men do not have wives they are pushed out. Marriageable age is pushed down and age differences increase, this also equates to greater power differentials between husband and wives. This decreases the girls ability of give or withhold consent. Sexual control becomes economic power. Requirement for women to produce children - men take reproductive power.

Freedom of religion is not unlimited. It is bounded by the rights of women and girls to equality under the law.

Section 7 does not grant freedom for someone to exploit another person.

Practice of polygamy removes women’s choices about when to have sex, when to get married, when to have children and when to leave a marriage.

Equality rights apply to constitutional analysis. Section 15 protects equality of women and girls must balance against religious freedom.

Polygamy often practiced in situations of extreme gender inequality.

Monday, November 22, 2010

Canada's Polygamy law on trial - Will history repeat itself?

Today I spent the day in court, but its' not about me. Canada's 1890 anti-polygamy law is on trial.

So why am I here? Maybe its' my six generations of monogamous Mormon ancestry that came from Europe and lived in Utah during the US government's anti-polygamy prosecutions? Perhaps its' because my Mormon ancestors were sent to Canada by the LDS church only a few years after Canada passed Section 293 of the criminal code that banned Mormon Polygamy in this country. While they remained monogamous, some of their church leaders continued to practice polygamy, being authorized by the LDS church, until at least 1904. Or maybe its because, thanks to a family coincidence, I have many wonderful cousins who were born and raised in the Bountiful FLDS community.

Whatever the reason, I can only hope that this massive legal undertaking - which employs at least 30 courtroom lawyers and will last up to 3 months - will do something positive for the many, many children and over-stressed parents that make up Bountiful.

If the government really can't find a better way to spend this money....

At least, please don't let it do more harm than good.

That is my prayer.

CBC News - British Columbia - Deny polygamy legal protection, lawyer urges

Marriage, Religion and the State : A Mormon history (Part 7)

Origin of the Fundamentalist LDS Movement (1910 - present)

The LDS transition from polygamy to monogamy was not without challenges. Plural marriage practices continued, especially in the colonies of Southern Utah even after the Second manifesto. In spite of being a polygamist himself, President Heber J. Grant was determined to stop the practice of polygamy within the LDS church. In 1933, Grant’s counselor J. Rueben Clark prepared a “Final Manifesto”, which denounced the practice of plural marriage and pledged loyalty to President Grant. The majority of the members of the isolated Short Creek branch in Southern Utah refused to sign this pledge and they were excommunicated. This group, and several other traditionalist groups broke away from the LDS church during this time period and went on to form the nucleus of the Mormon Fundamentalist (FLDS) movement 1. Shortly thereafter, in 1935, the Utah legislature passed a law making unlawful cohabitation a felony, rather than a misdemeanor offense and the Mormon polygamists believed the LDS church had a role in this.2 Some branches of the church in Mexico also questioned the move to monogamous marriage and away from the United Order style of collective economy. This expressed itself in the Third Convention movement which occurred in the late 1930s and was eventually reconciled by George A Smith in 19463.

Not all groups were able to reconcile with the LDS authorities. During the 1930s, perhaps the most famous group of Mormon polygamists traveled to a remote area, later called Short Creek, along the Utah, Arizona border.4 By 1942, this group formally organized into the United Effort Plan, similar to historic LDS communities, which formed the communal economy for the group and grew to a population of 36 men, 86 women and 263 children. Arizona’s Governor Howard Pyle declared that the group were in a “state of insurrection”, and a massive raid was conducted on the morning of July 26, 1953 with the goal of putting an end to the polygamous community. Justifying the aggressive action, Governor Pyle started that the community was “entirely dedicated to the warped philosophy that a small handful of greedy and licentious men should have the right and the power to control the destiny of every soul in the community.5” Pyle argued that all the people, including children, in the community were creating wealth for the men who controlled the everything. Governor Plyle claimed that there was not a girl in the community over 15 years of age who was not married (which later proved to be untrue). He also argued that the women were as guilty as the men in perpetuating the system.

The LDS owned Deseret News responded with on editorial on July 27 which opened with “Law-abiding citizens of Utah and Arizona owe a debt of gratitude to Arizona’s Governor and to his police officers who, on Sunday, raided the polygamous settlement at Short Creek and rounded up its leaders for trial. 6” The Short Creek community was characterized as an “embarrassment to our people and a smudge on the reputations of our two great states.” The editorial emphasized that the United Effort Plan at Short Creek was in no way connected to the Church of Jesus Christ of Latter-Day Saints. The First Presidency had already issued a statement indicating that all individuals who were involved with the polygamous group had “apostatized or have been excommunicated from the church”. It was further explained that “They are in no way connected with the Church and are living in open defiance of its doctrines and the laws of the land. As one of its fundamental tenets, the Church teaches that its members believe in obeying, honoring and sustaining the law.” The editorial ended with the hope that “the unfortunate activities at Short Creek will be cleaned up once and for all”.

Unfortunately for Governor Pyle, the media did not universally support his actions. Time magazine quoted Pyle expressing his hope that “most of the men would not only get prison terms but fines, which might enable the state to attach their property and raze the town”. The same article quoted a Short Creek Elder as saying “This raid will give us $10 million worth of publicity.7”. Public sympathy soon turned towards the polygamist families and by Aug. 4, the Deseret News ran an article “Tots to stay with Mothers” reassuring readers that families would not be hastily broken apart. Superior Court Judge, Lorna Lockwood, stated “except for their marriage beliefs, the women are excellent in character. They are good mothers to their children.8”. She further commented that the women believed they were doing the right thing. She respected their religious convictions, even though she disagreed with them.

America’s political climate had clearly changed since the turn of the century and the media soon began casting the Short Creek raid as the threat of totalitarian state power against individual rights. Sensitive to the media images of sobbing children being torn from their mother’s arms, Americans were soon defending the fundamentalist’s religious freedom and their rights to raise their children as they saw fit. Ironically, only the LDS church seemed to approve of the polygamy prosecutions. Within two years, nearly all the men, women and children had been returned to Short Creek, and the raid became something of a legend in the Fundamentalist LDS (FLDS) community.9 It represented the wickedness of the outside world that would stop at nothing to prevent them from following their divinely ordained faith and an example of how God would always protect the faithful.10 Rather than ending polygamy, Short Creek, now known as Hilldale Utah and Colorado City, Arizona, created a powerful symbol that unified the FLDS organization which became more powerful, closed off and isolated than it was previously. Ultimately, the Short Creek raid provided $10 million worth of publicity for the FLDS church.

The FLDS church continues to practice plural marriage in spite of legal and political pressure. According to spokesman Willie Jessop, “The LDS issued that manifesto for political purposes, then claimed it as a revelation. We in the fundamentalist community believe that covenants are made with God and are not to be manipulated for political reasons, so that presents an enormous obstacle between us and those in the LDS mainstream11.” Since 1986, when the Jeff’s family took leadership the FLDS have become more solidified under the direction of their prophet.12 Under Warren Jeff’s leadership, wives and families have been frequently reassigned from one man to another and expulsions have increased for perceived unworthiness13. However, not all fundamentalist Mormons follow the same prophet and several groups have remained more free and autonomous.

2 Twentieth Century Polygamy and the Fundamentalist Mormons in Southern Utah by Ken Driggs
4 Time Magazine, Aug 3, 1953 The Great Love Nest Raid
5 Police raid Arizona polygamist enclave, The Salt Lake Tribune Special Report
6 The Deseret News July 27, 1953 pg. A8 “Police Action at Short Creek”
8 The Deseret News Aug 4, 1953 p B6
9 The Deseret News April 10, 2008 “parallels to short creek raid in 1953 are pointed out” by Geoffrey Fatah
10 Short Creek’s Long Legacy posted Apr. 16 2008 by Neil J. Young
11 National Geographic Feb 2010 p.51 “The polygamists”
12 ibid p. 51
13 ibid p 56

Marriage, Religion and the State : A Mormon history (Part 6)

From 1910 to Present

With Joseph F. Smith’s second manifesto, the Utah LDS church once again accepted monogamy as the only sanctioned marriage system. This marks the first time since the LDS/RLDS schism that the entire Latter-Day Saints movement officially embraced the same stance on marriage.

LDS - The end of Polygamy to champions of traditional marriage

As the LDS church moved away from polygamous marriage, the church became more acceptable to mainstream America and entered a period of rapid growth. Polygamist families continued to live together, but they were no longer seen as the idealized family structure and from the presidency of George Albert Smith (1945 to 1951) all the Mormon prophets have been monogamous. During this period, Mormons soon came to be seen as champions of conservative family values.

In 1980, the LDS church came out with a strong stance against the Equal Rights Amendment, stating that “the Church is firmly committed to equal rights for women, but opposes the proposed Equal Rights Amendment because of its serious moral implications1”. This position has been clarified by Mormon Apostle Dallin H Oaks in stating, “ The Church opposed the ERA because of a prophetic judgment that this would take us in a direction we do not want to go for the law of marriage and divorce.” and “ It would be a deterioration of the law that governed the most essential relationship in life, that is, the relationship of husband and wife to children, and making that a matter of federal law.”2

In 1995, the LDS church released a document called “The Family, A proclamation to the World.” This document, issued by the First Presidency and the Quorum of Twelve Apostles proclaimed that “marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children3”. The proclamation continued to assign specific parental roles; “By divine design, fathers are to preside over their families in love and righteousness and are responsible to provide the necessities of life and protection for their families. Mothers are primarily responsible for the nurture of their children. In these sacred responsibilities, fathers and mothers are obligated to help one another as equal partners.”

By the late 1990s, the LDS church remained committed to distancing itself from its polygamous past. LDS President Gordon B Hinckley appeared on CNN’s Larry King Live and responding to a question regarding polygamy in Utah, he answered “When our people came west they permitted it on a restricted scale4” Hinckley went on to state that it was a very limited practice, carefully safeguarded. In 1890, that practice was discontinued... That’s 118 years ago. It’s behind us.” Asked by King if he would condemn the practice, President Hinckley responded “I condemn it, yes as a practice, because I think it is not doctrinal. It is not legal. And this church takes the position that we will abide by the law. We believe in being subject to kings, presidents, rulers, magistrates in honoring, obeying and sustaining the law”. In November, 1998, President Hinckley further clarified “ the practice of plural marriage is .. against the law of God. Even in countries where civil or religious law allows polygamy, the Church teaches that marriage must be monogamous and does not accept into its membership those practicing plural marriage5”

This was a very clear break, defining polygamy as against the law of the LDS church, even in countries where the practice is sanctioned by law. This may be explained through a comment made by Apostle Dallin H Oaks “ As to those people who are still practicing polygamy, I have immense sympathy for them. But I don’t see any common ground of doctrine between them and The Church of Jesus Christ of Latter-day Saints because revelation is the bedrock of our faith, we follow the prophet, and sexual morality is very important to us. They don’t follow the prophet, and they engage in relationships that we deem today [to be immoral as] the Lord has defined the law, and as the law has defined criminal conduct6”

The LDS Church also began to define its’ stance with respect to same-sex unions during this same time period. President Hinckley framed the position with “we believe that marriage between a man and a woman is ordained of God. We believe that marriage may be eternal through exercise of the power of the everlasting priesthood in the house of the Lord.” He then responded to people who considered themselves “so-called gays and lesbians” saying that we should love them as sons and daughters of God. President Hinckley further stated that “We want to help these people, to strengthen them, to assist them with their problems and to help them with their difficulties. But we cannot stand idle if they indulge in immoral activity, if they try to uphold and defend and live in a so-called same-sex marriage situation. To permit such would be to make light of the very serious and sacred foundation of God-sanctioned marriage and its very purpose, the rearing of families7”.

The LDS church became politically active in opposing same-sex marriage in March 1997.8 Working in a coalition with other conservative religious groups, the Mormon Church was instrumental in the success of California’s proposition 8 which repealed same-sex marriage. To coordinate this successful effort, LDS First Presidency sent a letter which was read in all congregations on 29 June, 2008 which stated “ We ask that you do all you can to support the proposed constitutional amendment by donating of your means and time to assure that marriage in California is legally defined as being between a man and a woman. Our best efforts are required to preserve the sacred institution of marriage.9”. In response to this request, Mormons donated the majority of funds for the campaign and thousands of man hours in volunteer canvasing.10

The LDS reaction to same-sex marriage is primarily based on the belief that monogamous heterosexual marriage is divinely ordained of God. In August 2009, this assertion was clearly made by Apostle M. Russell Ballard “We follow Jesus Christ by adhering to God’s law of marriage, which is marriage between one man and one woman. This commandment has been in place from the very beginning.”11 In response to political efforts to redefine the definition of marriage, Elder Wickman of the Seventy recently argued “ marriage is neither a matter of politics, nor is it a matter of social policy. Marriage is defined by the Lord Himself. It’s the one institution that is ceremoniously performed by priesthood authority in the temple [and] transcends this world. It is of such profound importance… such a core doctrine of the Gospel of Jesus Christ, of the very purpose of the creation of this earth.12”

Apostle Oaks further commented on the LDS position regarding same-sex civil unions stating “What the First Presidency has done is express its support of marriage and for that bundle of rights belonging to a man and a woman. The First Presidency hasn’t expressed itself concerning any specific right. It really doesn’t matter what you call it. If you have some legally sanctioned relationship with the bundle of legal rights traditionally belonging to marriage and governing authority has slapped a label on it, whether it is civil union or domestic partnership or whatever label it’s given, it is nonetheless tantamount to marriage. That is something to which our doctrine simply requires us to speak out and say, “That is not right. That’s not appropriate.13” Elder Oaks continued to explain that traditional marriage will be damaged if same-sex marriages are legalized14

Underlying the LDS position is the belief that homosexual relations are inherently sinful15. Elder Oaks has further expressed concern that political efforts towards same-sex unions will limit the church’s right to speak out against this sin16.

The LDS leadership is currently advocated for a Federal Constitutional amendment that will define marriage in the United States. The need for this amendment as outlined by Elder Oaks “ Law has at least two roles: one is to define and regulate the limits of acceptable behavior. The other is to teach principles for individuals to make individual choices. The law declares unacceptable some things that are simply not enforceable, and there’s no prosecutor who tries to enforce them. We refer to that as the teaching function of the law. The time has come in our society when I see great wisdom and purpose in a United States Constitutional amendment declaring that marriage is between a man and a woman. There is nothing in that proposed amendment that requires a criminal prosecution or that directs the attorneys general to go out and round people up, but it declares a principle and it also creates a defensive barrier against those who would alter that traditional definition of marriage”. Reflecting on the irony of how this constitutional amendment would have affected the early Mormons, Elder Oaks added “ The Mormons of the 19th century who practiced plural marriage, male and female, did so because they felt it was a duty put upon them by God. When that duty was lifted, they were directed to conform to the law of the land, which forbad polygamy and which had been held constitutional. When they were told to refrain from plural marriage, there were probably some who were unhappy, but I think the majority were greatly relieved and glad to get back into the mainstream of western civilization, which had been marriage between a man and a woman. In short, if you start with the assumption of continuing revelation, on which this Church is founded, then you can understand that there is no irony in this.”.

The Church and the proposed Equal Rights Amendment: A moral issue Ensign Mar 1980 insert 1

3 “The Family: A Proclamation to the World”, Family Guidebook, iv
4 Larry King Live Larry King Live
Gordon Hinckley: Distinguished Religious Leader of the Mormon Aired September 8, 1998 - 9:00 p.m. ET
5 “What are people asking about us?” Ensign, Nov. 1998, 72
7 Ensign November 1998, What are People asking about us? President Gordon B Hinckley
8 The Advocate Jan 2009 by James Kirkpatrick
California Prop 8: Section 2. Article I. Section 7.5 is added to the California Constitution. to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
10 The Advocate Jan 2009 The New Religious Right by James Kirkpatrick
11 M. Russell Ballard, “Engaging Without Being Defensive,” BYU Commencement Address, 13 August 2009.
12 (accessed Nov. 2010)
13 (accessed Nov 2010)
14 “ There are certain indicia of marriage — certain legal and social consequences and certain legitimacy — which if given to some relationship other than marriage between a man and a woman tend to degrade if not destroy the institution that’s been honored over so many thousands of years.” from
15 Elder Wickman “ There is no such thing in the Lord’s eyes as something called same-gender marriage. Homosexual behavior is and will always remain before the Lord an abominable sin. Calling it something else by virtue of some political definition does not change that reality.” ibid from same-gender-attraction
16 “In at least one country where homosexual activists have won major concessions, we have even seen a church pastor threatened with prison for preaching from the pulpit that homosexual behavior is sinful. Given these trends, The Church of Jesus Christ of Latter-day Saints must take a stand on doctrine and principle. This is more than a social issue — ultimately it may be a test of our most basic religious freedoms to teach what we know our Father in Heaven wants us to teach”

Saturday, November 20, 2010

Marriage, Religion and the State : A Mormon history (Part 5)

Reorganized Latter-Day Saints ( Community of Christ )

The Reorganized Church of Jesus Christ of Latter-Day Saints (RLDS) has its’ origins in the early church membership who did not accept Brigham Young’s leadership claims. From the very beginning, there was a strong suspicion that polygamy was being practiced by members of the Quorum of the Twelve. However, the 1852 open declaration of polygamy, together with its’ doctrinal justification intensified the struggle to define the meaning and legacy of the Restoration movement. Led by key leaders such a Jason Briggs, Zenos Gurley and William Marks, an organization1, which eventually became the Reorganized Church of Jesus Christ of Latter Day Saints (RLDS) began to form in response to the Utah faction.

In October, 1859, during the semi-annual conference of the new RLDS organization, it was decided to start a newspaper to publish their positions. The first edition of this paper, called “The True Latter-Day Saints’ Herald”, was published in January, 1860 under the banner “Hearken to the word of the Lord, for there shall not any man among you have save it be one wife: and concubines he shall have none - Book of Mormon2”. The first major article, entitled “Polygamy contrary to the revelations of God” began with “A more delusive idea never entered into the heart of man than the belief that polygamy is one of the doctrines of the Church of Jesus Christ of Latter-Day Saints. It is a favorite doctrine of the Salt Lake Church, because that church has “turned the grace of God into lasciviousness” and plunged themselves into this iniquity in direct opposition to the plain and positive commandments of the Lord our God...3” William Marks, who had been President of the Nauvoo Stake, contributed an article entitled “Opposition to Polygamy, by the Prophet Joseph Smith”. Marks related how by the beginning of June, 1844, he was convinced the Church “had departed from the pure principles and doctrines of Jesus Christ” and as he became increasingly troubled about the condition of the church he prayed earnestly for understanding4. In response to his prayer, he experienced a vision that led him to understand that the church had become overcome by sin and it was necessary for the church to be disorganized in order to purify it again. A few days after this vision, Marks met with Joseph Smith who wanted to speak with him about polygamy. In this discussion, Marks claimed that Joseph told him that polygamy “eventually would prove to be the overthrow of the Church, and we should soon be obliged to leave the United States, unless it could speedily be put down.” Calling it a “cursed doctrine” Smith asked for Marks’ help in freeing the church of the practice. Before this course could be followed, Joseph was killed. After the death of the prophet, Marks tried to mention this conversation to others, but to his disappointment it was “soon rumoured that Brother Marks is about to apostatize”.

The leaders of this new movement became convinced that Joseph Smith’s eldest son, Joseph Smith III, would be their new prophet. Initially refusing this invitation, Joseph III eventually felt the calling to lead the organization. In 1860, Joseph III traveled to Amboy, Illinois to accept leadership of the new church. In his initial address he explained how he had attempted to stay unbiased regarding the various LDS groups, except for “one principle taught by the leaders of any faction of this people that I hold in utter abhorrence; that is a principle taught by Brigham Young and those believing in him. I have been told that my father taught such doctrines. I have never believed it and never can believe it. If such things were done, then I believe they never were done by divine authority5”. Three months after being ordained as prophet and president of the new church, Joseph III spoke at a special conference held at Council Bluffs, Iowa, in June 1860. Referring to rumours that he would soon emigrate to Utah, Joseph stated “To those who know me, it is needless for me to say that I am not going to do any such thing while the doctrine of polygamy and disobedience to the laws are countenanced there6.” Continuing to address the principle of religious toleration, Joseph continued “so long as any denomination shall keep within the pale of the law, so long it is entitled to the consideration and protection of the government; but when those bonds are exceeded, the claim is forfeited, and society ought to ignore it, and the law proclaim against it”. Perhaps surprizingly, Joseph III did not feel led to name a “Gathering Place” for the saints to form their unique economic community as his father had done, rather asking the saints to live their religion in their own community.7. Nevertheless, the new organization quickly began organizing missionaries who traveled throughout the US and to Europe to challenge polygamy and Brigham Young’s leadership of the LDS church.

After arriving in Salt Lake during August 1863, RLDS Elder E.C. Briggs immediately sought an audience with Brigham Young and was invited to meet with him in the company of “his harem” 8. On hearing of Brigg’s intentions, Brigham is reported to have claimed that Joseph III was only acting under the influence of this mother, who was “a very very wicked woman”. President Young reportedly sent warning about the new missionaries throughout the Utah settlements and banned them from using local meeting houses for their addresses. Nevertheless, Briggs and his companion Alexander McCord quickly reported success among members of the original LDS church who did not support Brigham’s “accursed polygamous system”9 By December 1863, Brigham Young had made good on his word. Doors were closed to the RLDS missionaries, LDS members who offered them hospitality were excommunicated and the missionaries were regularly followed and threatened with violence10. Converts to the RLDS position were threatened with physical violence, destruction of property and virtually shunned by LDS members. Most left Utah and migrated East as soon as they were able11. In spite of the opposition, the RLDS Elders openly and directly challenged Brigham Young on his right to the presidency, the Adam-God doctrine and polygamy.12

By 1867, hundreds of RLDS converts were leaving Utah through the organization of transport at US Fort Douglas. RLDS Elder Gillen noted that “it is almost impossible to keep them in Utah after they unite with the church, and indeed they cannot remain without great loss13” By August 1868, Lucy Mack Smith’s history of the prophet Joseph Smith arrived in Utah. Brigham Young reportedly ordered that all copies of the books be gathered up and destroyed. Brigham claimed that it contained nothing but falsehoods, primarily because it painted a positive picture of Emma Smith, who had been a staunch opponent of polygamy.14.

In 1869, David and Alexander Smith, sons of Joseph Jr. and Emma, went to Utah on a mission for the RLDS church. During July, they met with Brigham Young to seek permission to use the LDS tabernacle give an address. Brigham sought to convince them that their father had been opposed to placing the article on marriage that condemned polygamy in the Doctrine and Covenants (Section 101, 1835 ed.) 15. Brigham also continued in his condemnation of their mother, Emma, calling her a liar and claiming that she had tried to poison Joseph and had stolen property from Hyrum’s family. Brigham refused to allow the Smith brothers to use the Mormon tabernacle, however they were able to use the Independence hall, which was owned by non-Mormon business men, for a meeting where Alexander Smith gave “polygamy a thorough disapproval16”. During the address, Joseph F Smith, their cousin and future LDS president, made several interruptions. While both sides probably claimed their side had won the day, David Smith reported that they baptized 8 new converts immediately after the meeting. The Smith brothers continued to make significant inroads in Utah and by November 4, 1869, Alexander reported that there had been more people cut off from the Brighamite church in the past two months than in the previous two years.17. Later the same month, David Smith wrote a scathing denunciation of the prevalent policy that prohibited the “Josephites” from publishing in Utah newspapers, restricted their places of baptism and burned the history written by his Grandma Lucy Smith. He further related that people were being cut-off from the LDS church for reading the Doctrine and Covenants and RLDS converts were being fired from their employment, immediately confronted for their mortgages and debts, slandered, watched, followed and intimidated by LDS church members.18.

During October, 1869 a LDS movement started in Salt Lake City under the leadership of William Godbe. This movement proclaimed the right to refuse principles presented by the priesthood leadership according to the light within each individual. They further stood for the right to discuss all measures presented by the priesthood, provided it was done in a spirit of moderation and in regard to other’s feelings. They argued it was not legal to expel members because they did not admit the divinity of all measures presented by the priesthood. They protested against the counsel for members of the church to watch one another, the practice of teachers to catechize members on their private views and the spirit of compulsion that existed in Utah. On advice of Brigham Young, Godbe and all who admitted sympathy with his position were excommunicated.19.

A year later, in November 1870, Elder Blair reported that the citizens of Utah were very much aware of the new anti-polygamy bills that were making their way through congress. These actions, along with the development of the mineral resources and the federal government taking control of the Utah militia created a moderating influence in the state. After reporting on the latest round of RLDS converts who were leaving Utah, Blair indicated his belief that it would soon be possible for people to join the Josephite church, remain in Utah and procure a living.20

In April 1872, President Joseph Smith III, wrote a long address concerning Utah’s emerging statehood movement. Joseph clearly stated that he did not favor admitting Utah into the Union with a constitution that permitted polygamy, especially with the understanding that it was a religious tenet of the original Mormon faith. However, Joseph deplored the tendency of the liberal Salt Lake press to foster divisiveness through harsh and acrimonious editorials. Arguing that even if “Brigham Young is responsible for much of the evil and wrong the people of the church of Jesus Christ of Latter Day Saints have suffered”, he observed that whenever a man or group in the church had fallen on “hard lines” in the church and has severed the bonds of unity with the body, that this unmasked a fierce enmity. Predicting future events, Joseph stated if Utah were admitted into the Union on the condition that the Mormons abandon polygamy, that the RLDS would take this as an admission that the claims regarding the divine origin of polygamy were false.21 Further giving insight to his unique position as the son of the prophet Joseph Smith Jr. and the the defender of the “faith of the fathers” of the church, Joseph III admitted that he had feared what things might come out of Utah concerning his father’s personal history. Stating that he had largely outgrown those fears and recognized that he was not responsible for the acts of those who lived in the past, nor could he change or obliterate the record they have made, he was now prepared for “whatever those revealments of the past might be.22” Stating clearly that he was not an apologist for Brigham Young, he went on to declare that he was an opposer of persecution, unjust denunciation and “building up of reputation out of the vices and follies of others”.

Later that same year, in August of 1872, Joseph III wrote an article on marriage. Rather than being another simply being another condemnation of polygamy, Joseph III addressed the importance of the marriage bond and expressed his feeling that marriages were being entered into hastily and without due preparation. He further struggled with the question of divorce and thoughtfully offered his opinion that this should only be a matter of last resort and mostly in consequence of adultery.23

By 1880, the Reorganized church started a series of legal actions to establish their right to claim property which had been held by the original LDS church. The first of these cases involved the RLDS claim for the movement’s original temple in Kirtland Ohio. The court filings claimed that the RLDS church was “founded and organized upon the same doctrines and tenets, and having the same church organization, as the original Church of Jesus Christ of Latter Day Saints, organized in 1830, by Joseph Smith, and was organized pursuant to the constitution, laws and usages of said original Church”. The Utah church, under the direction of President John Taylor, was characterized as having “ materially and largely departed from the faith, doctrines, laws, ordinances and usages of said original Church of Jesus Christ of Latter Day Saints, and has incorporated into its system of faith the doctrines of celestial marriage and a plurality of wives, and the doctrine of Adam-god worship, contrary to the laws and constitution of said original Church.”24 The court found in favor of the Reorganized church, declaring that it is “the True and Lawful continuation of, and successor to the said original Church of Jesus Christ of Latter Day Saints, organized in 1830 and is entitled in law to all its rights and property25”. The findings went further to suggest that “polygamy and kindred false doctrines were first promulgated and adopted by the church in Utah, such doctrines not having any place in the faith of the original church during the days of the Prophet Joseph Smith”.

The majority of Utah Saints did not take this decision very seriously, in fact the LDS church did not even represent itself in court during the case26. However, it set the stage for a larger court challenge over the Temple Lot property in Independence Missouri that commenced in February 1894. This property, which was set aside by revelation as the Centerplace for the city of Zion has tremendous value for all the LDS churches. Once again, the courts decided that the RLDS church was the legal successor to the original LDS church. While the primary lawsuit was between the RLDS and the Hendrickites Church of Christ (Temple Lot), the LDS church assisted the Hendrickites and provided a significant number of key witnesses in the case. In the final judgement, the court decided that the church had been one body from 1830 to 1844 and that after Joseph Smith’s violent death, the church split into factions and scattered to different parts of the country. The findings stated that “Brigham Young’s assumed presidency was a bold and bald usurpation27” over Joseph Smith III’s claim as a lineal successor and Brigham’s assumption of the office “under the claim of something like a transfiguration” was against the law of the church.

Ultimately, the case was decided on the precedent that the property belonged to the group, no matter how few in number, that best represented the original doctrine and law that existed at the time the property was acquired.28 The doctrine of polygamy became central in this case, with the Utah church attempting to prove that it was official doctrine at the time of Joseph Smith Jr. The court, under Judge John Phillips, doubted the testimony of witnesses who claimed they had been intimate with Joseph and noted that no children could be proven to have resulted from any of Joseph’s alleged unions, while he had fathered children with Emma over the same time period. Judge Phillips also commented directly on signed statements that LDS President Wilford Woodruff had made in 1843 certifying that he only knew of one rule of marriage in the church, as stated in the Doctrine and Covenants, and that the “spiritual wife system” was an invention of John C Bennett. In the final analysis, the court concluded “if it were conceded that Joseph Smith and Hyrum his brother, did secretly practice concubinage, is the church to be charged with those liaisons, and the doctrine of polygamy to be predicated thereon of the church? If so, I suspect the doctrine of polygamy might be imputed to many of the Gentile churches. Certainly it was never promulgated, taught, nor recognized, as a doctrine of the church prior to the assumption of Brigham Young.”29 The final decision was in favour of the RLDS church, because its doctrines and teachings were the same at the original LDS church.

Probably not surprisingly, the RLDS church also became a subject of the sensational Reed Smoot senate hearings. On December, 13, 1906, Senator Burrows commented on his understanding of the polygamy situation “ In order to induce his followers more readily to accept this infamous doctrine, Brigham Young himself invoked the name of Joseph Smith, the Martyr, whom many sincerely believed to be a true prophet, and ascribed to him the reception of a revelation from the Almighty in 1843, commanding the Saints to take unto themselves a multiplicity of wives, limited in number only by the measures of their desires.... Such the mythical story palmed off on a deluded people30” Regarding the RLDS church, Burrows further stated that “the courts have repeatedly declared this organization (RLDS) to be the legitimate successor to the original Mormon church and its adherents, numbering some 50,000 peaceable, patriotic, and law abiding citizens scattered throughout the United States in small church societies, conforming to the laws of their country wherever they may be and adhering to the faith of the founder of their creed, repudiating and denouncing the doctrine of polygamy and its attendant crimes”.

1 RLDS Hist. v3 p. 215
2 True Saints Herald V1 No1 Jan. 1860
3 ibid p. 6
4 True Saints Herald V1 No1 Jan. 1860 p. 22
5 RLDS Hist v3. p. 248
6 RLDS Hist v3. p 275
7 RLDS Hist. v3 p. 280
8 RLDS Hist v3 p.331
9 RLDS Hist v3 p.333
10 ibid p.368
11 ibid p. 377
12 ibid p. 378
13 ibid 476 1
4 ibid 502
15 ibid 532 Note that Section 101, which condemned polygamy remained in every edition of the D&C until 1876, when it was removed and replaced with Section 132 (see The Story of the Doctrine and Covenants, Ensign, December 1984 by Robert Woodford.)
16 idid 536
17 ibid 548
18 ibid 549
19 RLDS Hist p. 559
20 ibid 601
21 ibid 691
22 ibid 692
23 RLDS Hist p. 704
24 The Church in Court by Elbert A Smith
25 Reorganized church of Jesus Christ of Latter Day saints vs lucius williams et al p 488 record
court of common pleas lake county courthouse painesville, Ohio
26 Joseph Smith III and the Kirtland Temple Suit by Roger Launius 27 Reorganized church vs the Church of Christ et al p. 35
28 Reorganized church vs the Church of Christ et al p. 40
29 ibid p 44
30 Congressional Record Dec 13, 1906 as reproduced in The Church in Court by Elbert Smith