Tom GreenConvicted Utah Polygamist Tom Green is scheduled to be released from prison on August 7, 2007. Green has served a six year prison sentence for a variety of convictions.

According to the Salt Lake Tribune article, Green was convicted in 2001 of four counts of bigamy and one count of criminal nonsupport; he was also convicted in 2002 of one count of rape of a child, who later became his legal wife. The parole board, as a condition of his release has prohibited Green from seeing one of his former “spiritual” wives and their children, at the request of the former wife:

The Utah Board of Pardons and Parole has placed polygamist Tom Green under one new condition as he prepares to leave prison. The board said Green may have no contact with one of his former spiritual wives or any of her family – including their five children – except as required by a court order.

That means Green, 59, will have to go to court if he wants to resume a relationship with those children. Green was convicted in 2001 of four counts of bigamy and one count of criminal nonsupport; he was convicted in 2002 of one count of rape of a child related to his spiritual marriage to Linda Green, a stepdaughter, when she was 13. Linda Green is now his legal wife. He will be released from the Utah State Prison on Aug. 7 after completing a six-year sentence.

It was one of Green’s former wives (who has requested anonymity) who requested that Green be restrained from contacting her or their children. (To read what she said at the parole hearing, see Brooke Adams’ blog entry here—it is a fascinating read). She is concerned that Green may try to influence them with his religious views about polygamy (for a discussion on the legal issues of whether a father has a right to teach minor children about polygamy see my post here); however, Green claims that he has never tried to force his religious beliefs on this children. And, one of his sons plans to soon serve a mission for the Church of Jesus Christ of Latter-day Saints (The Mormons):

One of Green’s former wives, who has since remarried, appeared at a July 17 special hearing and asked that four conditions be placed on him. The woman, who asked that the media not identify her, requested that Green be required to provide child support; have only supervised contact with them; be prohibited from sharing his religious views with them; and be prohibited from harassing her.

“We believe that when the state of Utah turns its back on him that he can influence my young children into a life of polygamy, which from my experience is a life filled with pain and agony and long-lasting social consequences,” she said. In response, Green said he had never tried to get any of his children to follow his beliefs; one son, in fact, plans on serving a mission for The Church of Jesus Christ of Latter-day Saints. “I just want to be a father to my children to whatever extent I’m allowed to be,” he said.

I have no trouble with Green’s convictions for criminal non support, or even for child rape; but, I am troubled by the way the State of Utah went after Green because of his religious views on marriage. I do not believe in polygamy; but, I recognize that there are thousands of people who “live the principle” as a result of religious devotion and conviction.

In 2004, Jonathan Turley, a law professor at George Washington University, wrote a thought provoking piece for USA Today, with which I agree. Theologically I support the Church’s current position on polygamy; but, I also believe the United States Supreme Court got it wrong when they first decided Reynolds v United States, and the progeny of polygamy cases following thereafter. If ever there was truly a free exercise of religious freedom polygamy, not child abuse, or welfare fraud, but polygamy as taught to the early Saints, has to be at the top of that list.

Turley’s article from the USA Today:

Polygamy laws expose our own hypocrisy

By Jonathan Turley

Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.

If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington Law School.

Posted 10/3/2004 9:38 PM USA Today