Members of the religious sect led by Warren Jeffs were arrested on charges of food stamp fraud on Wednesday, but no charges were filed for their more controversial offense – polygamy.
Adherents to the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), which broke off from the Church of Jesus Christ of Latter-day Saints when it disavowed polygamy in the 1890s, can be charged for fraud and money laundering, The Associated Press reported. But while the government is willing to punish the isolated community for sex abuse, an ongoing case for discrimination, and now, charges of money laundering for abuse of the federal welfare system, there are no charges pending on the grounds of polygamy.
As polygamy gains limited public acceptance in American society, there are at least two portraits emerging: A relatively law-abiding one, and the one portrayed in the cases against Warren Jeffs and his followers.
Increasingly, otherwise law-abiding polygamists are trying to challenge the social stigma – and the state bans – by showing that "polygamy has two sides," as Ryan White, then a law student at the University of Utah, noted in the Utah Law Review when describing the legal implications of contradicting testimony from two wives of polygamists:
The effect of polygamy on its participants, both historically and currently, is not clear. . . Rowenna Erickson tells a sordid tale of thirty-four years "filled with confusion, heartache, and loneliness." She explains that all those who participate in polygamy do so because they are being brainwashed. Contrarily, Martha Cannon with gratitude explained that she is "regarded as a mother to many" as she described her feelings of boundless love from her experiences as a plural wife.
The most visible ambassadors for this gentler form of polygamy are Kody Brown and his fellow stars of the TLC reality TV show "Sister Wives." The show's portrayal of the Browns as an otherwise normal, middle-class suburban family has created a relatable face for polygamy and offered a new media narrative on the issue, says Courtney Bailey, a professor of communication arts at Allegheny College who has researched both "Sister Wives" and the HBO series on polygamy, "Big Love."
"I think we used to have more of the FLDS/Warren Jeffs view, and that was kind of the only view we had of polygamy," she says.
Although news such as the fraud indictment of the FLDS community does not help them, the Browns have publicly distanced themselves from Warren Jeffs and created a more sympathetic face, Dr. Bailey says.
Americans have become slightly more tolerant of polygamy in recent years, as views on polygamy have followed a trend toward greater acceptability for once-taboo social practices, including gay marriage. In 2015, 16 percent of Americans told a Gallup poll polygamy is "morally acceptable," a steady increase from just 6 percent in 2003, but the upward trend began in 2011, the year after the "Sister Wives" TV show began.
The distinction between Kody Brown and his four adult wives and the FLDS community, which is popularly known for underage brides and women wearing prairie dresses, may also appear in court. Polygamy is not only illegal but also unconstitutional in Utah, although it is illegal in all 50 states. The "Sister Wives" stars sued the state of Utah for its bigamy law, which criminalizes not only a request for multiple marriage licenses but also a man who "purports" to have multiple wives without legal sanction, which is how the Browns practice polygamy.
The state of Utah built its case with references to the Warren Jeffs community, as well as the fraud, abuse, and underage marriages for which the group is known to most Americans. But the state lost the case because the judge said the law attached jail time to a person's belief, says Clifford Rosky, a law professor at the University of Utah. It is now being heard by the 10th Circuit Court of Appeals, and the next stop could be the US Supreme Court.
"The idea that you could be thrown in jail just because of a belief that you have or something you say is unusual," Dr. Roskey says. "There are very strong arguments that they should win and that they will."
The issue has already been acknowledged by the Supreme Court, as Chief Justice John Roberts, in his dissenting 2015 opinion on Obergefell v. Hodges, noted the court's decision had the potential to redefine marriage including not just two spouses of the same gender, but three or more spouses.
"Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world," Justice Roberts wrote.
The "Sister Wives" case has been joined by a lawsuit from Nathan Collier of Montana and two women he considers his wives, and he based his argument on the same-sex marriage case. This approach is untested as yet, but the results of the first Brown trial shows that a judge is willing to distinguish between the problems the FLDS community has posed and the otherwise law-abiding polygamists in "Sister Wives."
"The state is claiming that it needs the [bigamy] law to curb abuses," Rosky says. "The judge has said, 'You already have laws against those things, you don’t really need this law.'"
Viewers of "Sister Wives," when they see the stars they have come to know confronted with accusations of sex abuse or fraud, have become more likely to draw that distinction as well.
"I do think it makes it harder for them, but because the ["Sister Wives"] show portrays them as so relatable, I think that helps them," Bailey says. "When outside people try to paint them with the same brush, I think that generally elicits sympathy for the Browns."