Polygamy and Gay Marriage: A Reflection on “Non-Traditional” Marriage

by Konden Smith 

This past week, the Supreme Court has heard two historic cases concerning gay marriage, furthering the intensity of it as a national debate. Jeff Wilson has recently noted that it was in the American West that we see the “earliest religious recognitions of same-sex partnerships.” Interestingly, it was also in the West that we see the first significant argument against traditional marriage (that of “one man and one woman”) as the only viable alternative for American citizens. This fight came from the Church of Jesus Christ of Latter-day Saints (aka. Mormons) as they pled for the country to tolerate their practice of plural marriage. Although the church today has taken a strong public stand against gay marriage, this early Mormon struggle for non-traditional marriage offers an important (if not ironic) contribution to the discussion.

Throughout the nineteenth century, prominent Americans looked to Mormonism and its open practice of non-traditional marriage as a national embarrassment and a direct threat to the integrity of the divinely established institution of the family, and as such, was a direct threat to the nation itself. “I must only beg,” spoke historian Philip Schaff to his German audience in 1854, “in the name of my adopted fatherland, that you will not judge America in any way by this irregular growth.” Just a few years later, American Colonel Patrick Connor argued for the “annihilation of this whole people [of Mormonism].” “If the present rebellion [Civil War] is a punishment for any national sin, I believe it is for permitting this unholy, blasphemous, and unnatural institution to exist almost in the heart of the nation[.]” 

Considered “unnatural,” polygamy was thought to encourage sexual promiscuity and cause birth deformities. The first legal test for Mormons came in the Supreme Court case Reynold’s vs. US (1878). In citing religious liberty, the Mormons claimed that the state had no right to criminalize non-traditional marriages. The Court explained however that the founding fathers “never intended” for religious freedom to hurt innocent women and children through unorthodox marriage, and as such, the government had the right “to interfere when principles break out into overt acts against peace and good order.” Establishing it to be the function of government to encourage “religion” and “morality,” the Court criminalized polygamy. Therefore, in order to protect the ideal family, the government ensured the breakup of non-traditional ones. 

At the height of anti-polygamy agitation, Mormon leaders wrote an official protest, complaining that the 1882 Edmunds law, which helped define marriage as between one man and one woman, as oppressive and severe. President Grover Cleveland, upon receiving a copy of this protest, remarked, “I wish you out there could be like the rest of us.” Mormon leaders publicly shot back: “We are inconsiderately asked to rend our family relations and throw away our ideas of human freedom, political equality and the rights of man, and ‘to become like them.’” They then challenged, “Be like them for what?” “It means that E pluribus unum is a fiction; it means that we tamper with and violate the grand palladium of human liberty, the Constitution of the United States and substitute expediency, anarchy, fanaticism, intolerance and religious bigotry for those glorious fundamental principles of liberty, equality, brotherhood, human freedom and the rights of man.” The Church was emphatic: “We cannot do it….We cannot and will not lay aside our fealty to the nation at the bidding of political demagogues, religious fanatics or intolerant despots.” 

As part of this protest in support of unorthodox marriage, Mormon leaders arranged for U.S. flags on government buildings throughout Salt Lake City to be hung at half mast on Independence Day. With widespread national outrage, the Mormon leaders defended the half mast: “A condition of affairs exists in this Territory which, when understood, every lover of human rights must condemn; and in behalf of ourselves, in behalf of our wives and children, in behalf of the Constitution of the United States, and in behalf of the principles of human rights and liberty in this land and throughout the world, we enter our solemn protest against such iniquitous acts as are being perpetrated here.” According to the Court, however, few crimes were “more pernicious to the best interests of society,” and to not punish them “would be to shock the moral judgment of the community.” The theme was established: marriage between “one man and one woman” was divinely ordained, and any unconventional form of marriage was an affront toward God and a threat against peace and social order. 

Mormon leaders rejected such campaigns as an attempt by the US government to enforce, from the “pulpit of our nation,” a particular sexual and theological “orthodoxy.” Men had the right of forming family bonds and worshiping God according to their conscience, “despite the Supreme Court decisions, despite the action of Congress, despite the expressions of pulpit and press.” This was more than a battle over religious liberty, but instead, “we are fighting the battles of religious liberty for the entire people; it might be said, for the entire world.” Mormons fought for the freedom to establish their own family bonds, however immoral others imagined it to be. Even after Mormons officially ended polygamy, efforts arose to constitutionally define marriage as between “one man and one woman.” Mormons charged that such efforts came from “sectarian ministers of the nation” and were “unjust and uncalled for.” 

In looking at these early contests, there are many parallels between gay and plural marriage. For both, opposition comes largely from theological concerns rather than empirical evidence. For early Mormon leaders, at stake were not just their families, but principles of liberty to determine those relationships according to their own conscience and their own sense of divine morality. Importantly, it was not a national departure from “Christian marriage” that caused Mormon leaders to threaten God’s wrath on the nation, but rather the imposing of a majoritarian familial morality on the rest of the nation. 

Environmentalism, Sacred Native Land, and the Failure of the First Amendment

by Kenny Richards

American Indians have had serious trouble winning religious freedom cases in the high courts of this country.  Felix Cohen, a legal scholar who set much of the groundwork for practicing federal Indian law, once remarked that we should watch closely what happens in the federal courts when American Indians are involved, as these cases often act as canaries in the coal mine.  If what Cohen warns is true, then these canaries fell to the bottom of their cages a long time ago.  The persistent failure of the American government to protect the right to the free exercise of religion for American Indians suggests that this government is enforcing a particular and biased conception of religion.  In landmark cases such as Employment Division v. Smith, Lyng v. Northwest Indian Cemetery Protective Association, and Navajo Nation v. United States Forest Service, the United States court system has repeatedly shown its aversion to protecting the religious rights of American Indians. 

          

In response to this pattern in high court decisions, different tribal entities have begun arguing for environmental conservation as a way to protect their sacred places from destructive forms of development.  Across the United States, various forms of destructive development, from open-pit mining to energy production are currently threatening the existence and perpetuity of many American Indian sacred places. The shift in legal argumentation from religious freedom into environmental arguments for the protection of American Indian sacred places offers an important opportunity for many to see how, exactly, the court’s interpretation of the First Amendment is failing to protect American Indian religious traditions.  

This past winter, the Snowbowl Ski Resort in Arizona began making snow from recycled human wastewater to spray on their ski runs in the San Francisco Peaks.  This forested and ecologically rich mountain range is a sacred place for many of the Indigenous peoples of the American Southwest.  Klee Benally is a member of the Navajo Nation and an Indigenous and environmental rights activist.  Benally has been working for the protection of the San Francisco Peaks for many years now. As reported by media outlets such as Indian Country Today and The Navajo-Hopi Observer, this past December, Benally participated in a public protest in Flagstaff Arizona where, with a group of other Indian peoples, he argued that snow production violated their human rights, namely their right to the freedom of religion. Benally told Indian Country Today, “what needs to happen is the government needs to afford the same rights to Native Americans that everybody else in this country enjoys.” Not long afterwards, Benally marched with more than a dozen people down to the local U.S. Forest Service headquarters in Cococino National Forest and hand delivered letters of protest addressing the recent promise by the U.S. Department of Agriculture to help protect American sacred places.  With the flair of an activist, Benally poured a 5-gallon bucket of treated sewage effluent, the same water to be used on the mountain for snow-production, in the center of the main entrance to the park headquarters.  The Forest Service promptly called in a Hazardous Materials Response Team, or “HAZMAT” to clean and neutralize this hazardous spill.  Benally was then arrested and now faces a maximum possible sentence of $20,000 in fines and 2 years imprisonment.  In a written statement responding to his arrest, as published in the Navajo-Hopi Observer, Benally wrote, “The irony is that the USFS has authorized to spill more than 1.5 million gallons of treated sewage effluent per day onto a rare and pristine alpine habitat, yet they feel it’s appropriate to call hazmat when a pail of this same wastewater is allegedly poured onto their polished tile floors?  I hold the USFS liable for the environmental poisoning that is set to occur on the peaks right now.”

Step back four years: in 2008, after years of litigation, appeals, district, and federal court decisions the 9th Circuit Court of Appeals ruled that the production of artificial snow on the San Francisco Peaks did not violate the right to the free exercise of religion for several thousand Indian people. The Indian plaintiffs in this argued that the use of treated sewage effluent for snow production at a skiing resort on Mt. Humphrey’s would desecrate one of their sacred mountains, thus destroying their ability to practice their traditional religions. 

After the 9^th Circuit decided the case, Indian peoples continued to protest snow production, alleging human rights infringements in terms of both Indigenous rights and U.S. constitutional rights.  All the while, the Snowbowl Ski Resort continued to put pipes in the ground and make preparations for snow production from recycled sewage effluent.  Since their First Amendment case failed, several groups, including the Hopi Tribe and the Save the Peaks Coalition (an environmentally focused group), have brought lawsuits arguing that the production of snow from treated wastewater will violate certain environmental laws. 

This turn to environmental law for the protection of American Indian sacred places in Arizona is not a singular phenomenon.  Disputes over uranium mining on Mount Taylor in New Mexico, Copper mining from the Pebble Mine in Alaska, and the proper management of the Ka’u Forest Reserve in Hawai’i are all examples of sacred places that are being fought over in environmental terms. Tisa Wenger, a historian of American religions, argues that many American Indians adopted the Euro-American concept of religion as a means of responding to and resisting colonial force.  Not surprisingly, in light of the almost complete failure of American Indian religious freedom cases brought before the U.S. government there is emerging a new adaptation as a way to protect Indigenous ways of life and landscapes. 

Congress and the judiciary must come to terms with their own coercive history and to the limited and unjust definitions of religion that they enforce. The American Indian turn to environmental law in religious freedom cases speaks loudly to the failure of the U.S. government and the First Amendment as protectors of equal rights.   It is high time for the courts, and perhaps Congress, to reassess their definition of religion to include the Indigenous peoples who have not historically fallen under the protection of the First Amendment. 

    

Faith Healing in Oregon

by Quincy D. Newell


For a long time, people have come to the West to be healed. Whether it’s the high desert air thought to relieve the symptoms of tuberculosis, asthma, and other ailments; the cosmic vortices, thought to concentrate spiritual energy; or the charismatic personalities, able to heal through prayer, the laying on of hands, and other religious practices, healing and the West have gone hand-in-hand in the American imagination.

Aimee Semple McPherson, whose ministry was built in large part on healing, preaching in 1939.  Photo from the Los Angeles Examiner collection, Regional History Collection, via http://www.usc.edu/libraries/archives/la/scandals/aimee.html. 

Many of those healing practices were, or are, alternatives to the modern medicine of their day. Their scientific validity has been questioned – their practitioners have taken them on faith. 

But faith-based healing is struggling in the West, at least in Oregon, these days. An Oregon jury recently convicted Dale and Shannon Hickman of manslaughter in the death of their newborn son. The Hickmans are members of the Followers of Christ Church, based in Oregon City. (The church also has branches elsewhere in the West, including three in Idaho.)


AP Photo/Rick Bowmer, via katu.com.

The Followers of Christ are a small church with Pentecostal roots. The approximately one thousand members believe in healing through prayer and anointing with consecrated oil – not through modern medicine. The Hickmans’ trial is the latest in a run of several Oregon cases concerning the deaths of Followers children whose lives could have been saved by basic medical treatment.

For many years, the Followers of Christ were protected from prosecution by Oregon laws that granted religious exemption from criminal charges in some cases, including cases of manslaughter and criminal mistreatment. According to journalist Susan Nielsen, this made Oregon “the nation’s most lenient state for parents who let their children suffer in the name of religion.” (That quote is indicative of local discourse surrounding these cases, which are framed in terms of child abuse rather than in terms of religious freedom.)

In 1999, the Oregon legislature narrowed the exemptions, eliminating the spiritual healing defense in cases of second-degree manslaughter and first- and second-degree criminal mistreatment. This year, they passed another law eliminating “spiritual treatment” as a defense against homicide charges and subjecting parents to mandatory minimum sentencing rules. But even before the 2011 legislation, the District Attorney in Clackamas County (which covers some of the suburbs of Portland, OR, including Oregon City) had brought charges against three couples. The Hickmans are the fourth couple in two years to be charged. Seven of the eight people charged have been convicted.

These cases are tragic. Since 2009, parents have been charged in the case of a 15-month old girl who died from pneumonia and another infection; a 16-year-old boy who died of a urinary blockage; a child who nearly went blind in her left eye because of an abnormal growth of blood vessels there (the state intervened and got treatment for her, which the parents may have to pay for); and the Hickmans’ son David, who died from an infection shortly after being born two months prematurely. Concern about the Followers is not new; Time carried an article in 1998 raising concerns about the high mortality rates for children in the group and the extraordinary suffering some endured before death.

The tragedy, I think, can overshadow the extremely complicated nature of the issues at stake here. On the one hand, we have the state’s concern for the welfare of its most vulnerable citizens, its children. On the other hand is the concern of religious people for their First Amendment rights – specifically, the free exercise of religion. On the third hand (Kali seems an appropriate image here) is the question of parental rights – the ability of parents to raise their children as they see fit, without undue interference from the state. The case of Neil Beagley, the 16-year-old boy who died of a urinary blockage, raises a concern for the fourth hand: minors’ own religious convictions, and their ability to act on those convictions.

Neil Beagley at age 14, via oregonlive.com.

Neil’s parents, Jeffrey and Marci Beagley, were sentenced to 16 months in prison for their son’s death. According to Marci Beagley’s testimony, reported by Nicole Dungca, “As Neil lay in the bed before his death in June, he asked that family members come for a laying on of hands, his mother testified. They asked him if he wanted medical care, but she said he declined.” Some two and a half months earlier, Neil spoke with a Department of Human Services caseworker, telling him that “he had the flu, but was feeling better and didn’t want to go to the doctor.”

In the United States, we have tried children younger than Neil Beagley as adults for taking the lives of other people. Beagley, according to his mother’s testimony, played a significant role in his own death by refusing medical care. His church, to which he was devoted, taught that seeking medical care showed a “lack of faith.” It is not unreasonable to think that Neil believed asking for a doctor might jeopardize his salvation.

Neil learned the beliefs that led him to reject medical treatment from his parents and other members of his faith community. Acting on those beliefs, he essentially foreclosed the possibility of saving his life. His parents claimed that they complied with his wishes based on their understanding (facilitated by conversations with a state-employed social worker) that Oregon law allows children to seek or refuse medical treatment once they reach the age of fifteen. (Technically, the law allows children to seek medical treatment, but says nothing about their right to refuse it. The law also obligates parents to provide adequate medical care for their children.) But notice the apparent paradox into which Neil Beagley and his parents unwittingly walked: the U.S. Constitution, as interpreted by the Supreme Court, allows virtually unlimited freedom of religious belief as well as limited freedom of religious practice. 

The current justices of the Supreme Court of the United States.  Of these nine people, three are Jewish and six are Catholic.  Only two were born west of the Mississippi.

The limitations on practice generally revolve around protection of vulnerable populations (like children) and restrictions on impinging on other people’s rights. It’s basically agreed that you can believe anything you want – that the earth is flat, that the wafer on your tongue is human/divine flesh, that the world is going to end next year, that evolution is a crock. You can also teach your children these beliefs. But, at least in Oregon, if your children – children who are apparently old enough to make decisions on their own, old enough to drive, old enough to hold a job – if those children act on those beliefs in ways that physically harm themselves (but nobody else) – you are liable for criminal prosecution. Jeffrey and Marci Beagley were convicted because their son learned and practiced the religion they taught him.

The Followers, of course, are not the only religious group to teach doctrines that contradict current scientific thought. I’m thinking here specifically of conservative Christians who reject the theory of evolution because it conflicts with their interpretation of the Bible. My friends who are biologists rant every so often about what they perceive as these folks’ hypocrisy, dutifully taking antibiotics when a doctor prescribes them, but rejecting the science on which these drugs are based. Followers eliminate the hypocrisy that drives my friends nutty, but by doing so they open themselves up to criminal prosecution.

Striking a balance between respect for citizens’ religious convictions, the need to protect children, and the desire to raise our children according to the dictates of our own consciences is a difficult task. In the wake of so many childrens’ deaths, Oregon has moved to emphasize the protection of children, giving less deference to the wishes of parents and the concern for free exercise rights.