Recent bigamy indictments handed down by a Texas grand jury could be the seeds for a case that could eventually find itself before the U.S. Supreme Court challenging the ban on polygamy, a lawyer for the Fundamentalist LDS Church said.
"I think the beginnings of that case are being filed in Texas right now," Rod Parker said during a panel discussion last week at the annual Utah State History Conference.
Parker appeared alongside Utah Attorney General Mark Shurtleff for a discussion on "Polygamy and the Law," discussing polygamy-related prosecutions and the recent raid on the FLDS Church's YFZ Ranch. Past attempts to overturn the polygamy ban have failed, some because they involve underage marriages which could still cloud the issue.
"One of the interests the state has in prohibiting polygamy is this ... protecting vulnerable individuals from exploitation and abuse and I'm quoting: 'The practice of polygamy in particular often coincides with crimes targeting women and children,"' Shurtleff said, quoting from a Utah Supreme Court opinion that struck down a recent challenge to overturn a bigamy conviction.
Six people, including FLDS leader Warren Jeffs, were indicted by a grand jury in Eldorado, Texas, investigating crimes stemming from the April raid on the YFZ Ranch. Jeffs, Merril Leroy Jessop and Raymond Jessop were indicted on bigamy charges, while others face charges of sexual assault of a child.
Brigham Young University law professor Fredrick Gedicks questioned why polygamy itself remains criminalized, noting there are other groups more dangerous to conventional social values than polygamists.
"We do not punish membership in groups, we punish behavior," he said. "So if there are crimes occurring in polygamous society, then prosecute the crimes. Don't criminalize the society."
For his part, Shurtleff said Utah has been careful to prosecute bigamy only in cases where there are other crimes occurring. When pushing a bill through the Legislature aimed at child bride marriages, Shurtleff supported reducing bigamy among consenting adults to a misdemeanor.
"I couldn't get support from other prosecutors and had to take that part out of the bill," he said.
As the discussion turned to the April raid on the FLDS Church's Yearning for Zion Ranch, Shurtleff and Parker found themselves in rare agreement over how the situation was handled.
"That raid in Texas was precipitated by misinformation; it was precipitated by a buildup of prejudice," Parker said. "It didn't just happen because they got this phony phone call and went in there. There was a whole lot of prejudice that was built up there, partly about fundamentalists and polygamy."
Shurtleff agreed that Texas had gone too far and was critical of Texas' original theory that a little girl born in a polygamous household was at risk of growing up to become a child bride.
"Clearly that was never going to fly as far as I was concerned, and that's not the standard we use in Utah," he said.
But Shurtleff defended Texas' approach in the raid, saying the isolated nature of the compound, the criminal convictions of its members (including Jeffs) made it impossible for child welfare workers to just knock on the door.
"Ultimately, the raid will prove harmful and it has proved harmful to our efforts in Utah as law enforcement officials to actually investigate and prosecute these crimes against children," he said, adding: "If they fear law enforcement more than they fear the person abusing them, they won't get help."
Meanwhile, Texas child welfare authorities continue to navigate their way through the largest custody case in U.S. history. To date, 296 people have been dropped from court oversight. The Deseret News' tally includes 26 FLDS women that Child Protective Services initially believed to be minors but later acknowledged were really adults.The reasons to "nonsuit" have varied, from no evidence of abuse to families taking steps to protect their children from abuse. Only one child, a 14-year-old girl believed to have been married at age 12 to Jeffs, has been returned to foster care.