In testimony submitted to the BC Supreme Court in a Charter Reference determining whether Canada’s criminalization of polygamy is consistent with the Canadian Charter of Rights and Freedoms, Dr. John Walsh testified that within the mainstream Latter Day Saint (Mormon) Church, there are two prevailing ideological camps regarding the practice of polygamy. Those in the first camp position polygamy as a practice firmly rooted in the historical ‘past’ with little relevance to the different-sexed monogamous model of marriage that the church actively espouses today. The second camp regards polygamy (also known as celestial marriage) as an “eternal” principle, suspended due to political pressure, which will be re-instated in its full glory at a future date.
My father was a member of the second camp, and my earliest exposure to the concept of polygamy was listening to him pontificate about the inevitable return of celestial marriage. Growing up Mormon in Southern Alberta one could not avoid the vestiges of polygamy—it was the essence of our history and to a large extent was formative in the establishment of multiple towns that to this day boast substantial Mormon populations. In the late nineteenth and early twentieth centuries, sexual refugees (namely Mormon polygamists) relocated to Southern Alberta when political pressure from the United States government forced Church leaders to renounce the practice of polygamy.
In her history of marriage in the United States, Nancy Cott argues that the Mormon practice of polygamy, or more specifically, the political and social resistance to Mormon polygamy, played a dominant role in shaping the moral and philosophical underpinnings of citizenship in the newly formed republic of the United States.
Experiments with communal living and non-monogamy began with the Church’s founder, Joseph Smith, who had multiple wives and sexual liaisons with 40 women between the ages of 14 to 56 during his lifetime. Although Smith’s practice of non-monogamy was a poorly kept secret, his successor Brigham Young (husband to 55 wives) publicly announced in 1852 the practice of “celestial marriage” in the territory of Utah providing a systematic alternative to Christian monogamy.
Cott explains that polygamy in Utah quickly evolved from, a local scourge to a national embarrassment as politicians grappled with two dominant questions: How much power should territories be granted in determining their own domestic institutions free from congressional intervention? And how would congressional intervention in the territory of Utah concerning the practice of polygamy translate into congressional intervention in other matters, most specifically the question of slavery (which was also legal in the territory of Utah.) As Cott explains, “Marriage was a signal domestic institution, as was slavery, and if the authority relations of one of these domestic institutions depended on the ‘law of the land’ so did the authority relations of the other.”
As the territory of Utah moved closer to becoming a State (the population was burgeoning in the mid-nineteenth century as a result of white settlement and the displacement of Native American populations), discussions of Mormon polygamy were intertwined with the question of slavery. If congress could intervene in an individual State’s authority to regulate the domestic institution of marriage, a precedent would be established allowing for interventions regarding the domestic institution of slavery as well. Intrinsically, the “Mormon problem” was linked to abolitionism in the U.S. and “when Mormon polygamy was discussed, slavery was never far from politician’s minds.”
Three decades of discord between the U.S. Congress and Mormon leadership would ensue during which time many iterations of legal precedents, policy, surveillance and judiciary proceedings would attempt to curtail the non-monogamous ways within the territory of Utah. During this time, “non-Mormon Americans struggled to reconcile their Jacksonian notions of liberty and religious tolerance with their belief that Mormon religious freedom could not include the freedom to practice polygamy.”
As discussed in an earlier blog (Born to Breed a Nation), discussions of polygamy within the American body politic drew upon linear, white supremacist/colonial and secularized understandings of the inevitable progress of civilization. Racial rhetoric distinguished between the Christian civilized practice of monogamy and so-called barbaric Mormon polygamy which was racialized and associated with uncivilized “Asiatic and African” people.
Legal theorists such as Francis Lieber wrote in 1827 that monogamy is one of the pre-existing conditions of civilized white men, “Strike it out, and you destroy our very being; and when we say our we mean our race—a race which has its great and broad destiny, a solemn aim in the great career of civilization.”
The racialization of polygamy, practiced by a predominately white population located in a specific geo-spatial territory troubled the moral crusaders of the mid-nineteenth century that employed political pressure to control sexuality according to Victorian sexual ideals—namely that sex should be limited to reproductive purposes within the bonds of inter-sexed and intra-raced monogamous marriage.
Mormon women, who were predominately white, were particularly troubling to these crusaders whose constricting notions of female sexuality and gender roles were predicated upon racialized notions of white civility. The corresponding political discourse regarding Mormon women was fraught with tension and Mormon women were often referred to with derogatory racial terms such as ‘squaws’ or harlots, while simultaneously being cast as victims who were helpless and brutalized by their husbands.
Under the direction of Brigham Young, women in the territory of Utah were granted the right to vote in 1869 (the 2nd to received suffrage in the U.S.) with the hope that they would stem the tide of anti-polygamy legislation. Conversely, opponents of Mormon polygamy were sure that Mormon women being granted the right to vote would equal the demise of polygamy and were shocked when Mormon women “voluntarily endorsed polygamy by voting for polygamous Church leaders—politically supporting a type of marital relationship that was widely condemned as the negation of marriage and American ideals.”
Consequently, Mormon women were caste as “unfit to act as moral guardians; or insane, mentally deficient, or debauched for entering into polygamy.” As discussed in an earlier blog (I’m Single, Not Sick), inherent within constructs of femininity are prescriptive mandates of sexual expression that control female sexuality. These mandates are revealed only through violations—in other words, “those who lack ‘rightness’ help define what is ‘right’” and Mormon women’s collective refusal to play the role of victim and actively participate in non-conforming sexuality frustrated and confused moral crusaders.
Anti-polygamy angst culminated in the passing of the Edmunds-Tucker Act in 1887 by U.S. Congress which in essence gave Mormons an ultimatum: abandon polygamy or risk the annihilation of the religion. As Crowley explains, the insistence on the right to practice polygamy in the name of religion made Mormons unworthy of constitutional protections—they were too far afield of what constituted what good U.S. citizens should be.
The Edmunds-Tucker Act contained twenty-six sections—“all aimed at eradicating polygamy, crushing the Church, and shaping what a good American citizen should be.” One of the sections repealed woman’s suffrage and the women of Utah were stripped of their right to vote. The Act also required men in the state of Utah to make a statement under oath that they would support the Constitution and laws of the U.S., especially the anti-polygamy acts, swearing that one would “not, directly or indirectly, aid or abet, counsel or advise, any other person to commit any of said crimes.” As such, the U.S. government systematically linked the rights of citizenship, namely the right to vote, hold office or to serve on a jury to sexual and social monogamy.
However, the most effective section of the Edmunds-Tucker Act was section thirteen that directed the U.S. Attorney General to institute proceedings to forfeit and escheat to the U.S. government property of the corporation of the Church of Jesus Christ of Latter Day Saints (the Mormons.) The Mormon Church held significant assets, and their interest in protecting those assets in conjunction with continued efforts to gain statehood for the Utah territory would ultimately result in Church leadership denouncing the practice of polygamy. In 1890 after several years of unsuccessfully resisting the provisions of the Act by legal pursuit, Church president Wilford Woodruff issued a manifesto at the General Conference publicly declaring that Church members were to refrain from contracting any marriage forbidden by the law of the land. As Crowley notes, it was the first time a Church authority had told members to stop practicing polygamy.
In the three years from the passage of the Edmunds-Tucker Act in 1887 to the official denouncement of the practice of polygamy in alignment with U.S. law, many Mormons who remained faithful to polygamy were forced into hiding, or moved to Mexico or Canada. Amongst those fleeing anti-polygamy laws was Charles Ora Card who after being arrested in the U.S. for polygamy, escaped custody and led a small party of Mormons to southern Alberta in 1887.
Canada was well aware of the U.S. “Mormon problem” as Canadian newspapers published numerous anti-Mormon/anti-polygamy stories that may have contributed to the often hysterical response to Mormon immigration to Canada. Although Mormons were seen as industrious dry land farmers and consequently of great value as homesteaders in the west, their arrival also provoked a generalized concern regarding the preservation of monogamous ideals, particularly amongst white settlers.
Like their U.S. counterparts, Canadian politicians were also under the influence of moral crusaders that welded considerable leverage in institutionalizing policies and laws that reinforced monogamous marriages and Victorian gender roles. As Sarah Carter has documented, intensive colonization efforts in western Canada idealized monogamous marriage wherein “ideas about sexuality and morality, particularly the restriction of sexual intimacy to one man and one woman who were married for life” was of fundamental importance.
The arrival of Mormons in the late nineteenth to western Canada, particularly Southern Alberta where Aboriginal populations had successfully resisted cultural colonization regarding marital practices, spurred on by moral crusaders who were particularly concerned with the threat that “barbaric” non-monogamy posed to the Christian nation. Motivated by concern that Mormon settlements in close proximity to nearby reservations would further encourage the practice of polygamy amongst First Nations, government and Department of Indian Affairs (DIA) were forced to reconsider policies that had previously recognized Indigenous marital practices, which included monogamy, polygamy, same-sex marriage and easy divorce with remarriage expected. New bigamy and polygamy laws were created to ensure the primacy of monogamy in Canada and both Indigenous populations and Mormon settlers were subject to ongoing surveillance and the restriction of personal sexual liberties.
The first criminal prohibition against polygamy was enacted in 1890 as the government took pro-active steps to stop the potential for mass migration of Mormon polygamists following Wilford Woodruff’s manifesto instructing Church members to obey the law of the land regarding marriage. The Act respecting Offences relating to the Law of Marriage took particular aim at Mormon and Indigenous polygamy and those found guilty of the misdemeanor were liable to imprisonment for five years and to a fine of five hundred dollars. The first successful prosecution for polygamy in Canada was in 1899 against Bear’s Shin Bone, a member of the Blood Reserve in Alberta, and in 1906 a second Indigenous man who had been openly living with a married woman was also prosecuted.
However, no charges for polygamy were laid against any white Mormons in Canada until 2009 when after more than 18 years of investigations and legal wrangling, Wintson Blackmore and James Oler, leaders in a fundamentalist off-shoot of the mainstream Mormon faith were criminally charged with polygamy. On June 28, 2018 Winston Blackmore was sentenced to six months of house arrest and 150 hours of community service for having 24 wives, and James Oler was sentenced to 3 months of house arrest and 75 hours of community service for having 5 wives.
In 2009, Chief Justice Robert Bauman carried out a Charter Reference in the Supreme Court of British Columbia to determine whether Canada’s laws prohibiting polygamy are consistent with the freedoms guaranteed to all Canadians by the Canadian Charter of Rights and Freedoms.
One of the questions Justice Bauman considered in his 357 page opinion was the likelihood of an increase in the practice of polygamy should Canada de-criminalize it. Justice Bauman zeroed in on two potential “risks” to an increase in de-criminalized polygamy – immigrants and Mormons.
As explained by Justice Bauman, “It requires no leap of imagination to see how immigrants from these countries [Middle East and Africa] might view Canada as an especially desirable destination were polygamy not prohibited.” Justice Bauman also agreed with the evidence of Dr. Walsh “that a sizable contingent within the mainstream Mormon Church might be inclined toward the practice if permitted.” Dr. Walsh’s testimony, that the Mormon Church never theologically relinquished the practice of “celestial marriage” but ceased the practice while under duress from the U.S. government, holds true and is reflected in the very words of Wilford Woodruff in 1890 directing faithful Mormons to adhere to the “laws of the land” regarding marital practices.
There most certainly is a chance that the decriminalization of polygamy in Canada could lead to an increase in the number of such unions but perhaps a more suitable response would be “who cares” or “so what.” Keeping in mind that “those who lack ‘rightness’ help define what is ‘right,’” it is precisely through this tension that the compulsory nature of monogamy is most clearly articulated, as it not only demonstrates a resistance to/and inability to imagine alternatives to monogamy but also pre-supposes an association of harm when monogamy is challenged.
- Cott, Nancy F. 2000. Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press. ↑
- The Church of Jesus Christ of Latter Day Saints. 2014. Plural Marriage in Kirkland and Nauvoo. https://www.lds.org/topics/plural-marriage-in-kirtland-and-nauvoo?lang=eng&old=true (accessed January 16, 2018). ↑
- Church leaders had historically denied Smith’s non-monogamy until 2014 when they quietly updated the Church’s official website to account for his polygamy.Egan, Timothy. November 29, 2014. “Sex and the Saints.” The New York Times: https://www.nytimes.com/2014/11/30/opinion/sunday/timothy-egan-sex-and-the-saints.html (accessed January 16, 2018).The Church of Jesus Christ of Latter Day Saints. 2014. Plural Marriage in Kirkland and Nauvoo. https://www.lds.org/topics/plural-marriage-in-kirtland-and-nauvoo?lang=eng&old=true (accessed January 16, 2018) ↑
- For this paper, I would use the terms Celestial Marriage and Plural Marriage interchangeably. ↑
- Cott Supra note 1 at 72. ↑
- Ibid at 73. ↑
- Ibid at 74. ↑
- Ibid at 75. ↑
- Ibid at 73. ↑
- Crowly, Jenette Wood. 2011. “Mormon Polygamy and the Construction of American Citizenship, 1852-1910.” PhD Dissertation, Duke University at 12. Available at: https://dukespace.lib.duke.edu/dspace/handle/10161/3950 ↑
- Ibid at 116. ↑
- Ibid at 114. ↑
- Lieber, Francis. 1827. As quoted in Cotts Supra note 1 at 115. ↑
- Cott Supra note 1 at 114.Crowley Supra note 9 at 239. ↑
- Crowley Supra note 9 at 236, ↑
- Ibid at 239-240. ↑
- Reynolds, Jill and Margaret Wetherell. 2003. “The Discursive Climate of Singleness: The Consequences for Women’s Negotiation of a Single Identity. Feminism & Psychology 13, 4: 489-510 at 490. ↑
- Crowley Supra note 9 at 215. ↑
- Ibid at 217. ↑
- Ibid at 221. ↑
- Edmunds Tucker Act as quoted in Crowley Supra note 9 at 244. ↑
- Crowley Supra note 9 at 270. ↑
- Carter, Sarah. 2008. The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915. Edmonton: University of Alberta Press at 41 ↑
- Ibid at 49. ↑
- Ibid at 25. ↑
- Ibid at 204. ↑
- Supreme Court of British Columbia, In the Matter of: The Constitutional Question Act, R.S.B.C. 1986, c 68. And In the Matter of: The Canadian Charter of Rights and Freedom And in the Matter of: A Reference by The Lieutenant Governor In Council Set Out in Order In Council No. 533 dated October 22, 2009 concerning the Constitutionality of s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 at paragraph 361. ↑
- Ibid at 5. ↑
- Ibid at paragraph 357. ↑
- Ibid at paragraph 373. ↑
- Ibid at paragraph 380. ↑
- Judd, Amy. June 26, 2018. “Winston Blackmore sentenced to 6 months house arrest for polygamy.” Global News. Available at: https://globalnews.ca/news/4297819/winston-blackmore-sentenced-6-months-house-arrest-polygamy/ ↑
- Ibid at paragraph 560. ↑
- Ibid at paragraph 559. ↑
- Emens, Elizabeth F. 2009. “Compulsory Monogamy and Polyamorous Existence.” In Martha Albertson Fineman, Jack E. Jackson, and Adam P. Romero (eds.) Intimate Encounters, Uncomfortable Conversations. Burlington: Ashgate Publishing. 259-285 at 259. ↑
- Reynolds Supra note 17 at 490. ↑