The text of this article is only available as a PDF.
1. Obergefell v. Hodges, No. 14-556, slip op. at 23 (U.S. June 26, 2015).
2. See, for example, Supreme Court Justice Antonin Scalia’s dissent in Lawrence et al. v. Texas, 539 U.S. 558 (2003); James Oliphant, “Rick Santorum Jeered after Comparing Gay Marriage to Polygamy,” Los Angeles Times, January 6, 2012, http://articles.latimes.com/2012/jan/06/news/la-pn-santorum-jeered-after-comparing-gay-marriage-to-polygamy-20120106; The O’Reilly Factor, aired April 4, 2013, on Fox News Channel; The O’Reilly Factor, aired December 16, 2013, on Fox News Channel, https://www.youtube.com/watch?v=ajNybaF2-40; Michael Brendan Dougherty, “How Gay Marriage Paves the Way for Legal Polygamy,” The Week, July 6, 2015, http://theweek.com/articles/564178/how-gay-marriage-paves-way-legal-polygamy; Jane C. Timm, “Ben Carson: Gay Marriage Leads to Polygamy and ‘on from There,‘” MSNBC, October 13, 2015, http://www.msnbc.com/msnbc/carson-gay-marriage-leads-polygamy; and Peter Sprig, “Why Same-Sex Marriage Will Pave the Way to Polygamy,” Religion News Service, June 20, 2016, https://religionnews.com/2016/06/20/why-same-sex-marriage-will-pave-the-way-to-polygamy/.
3. Obergefell, No. 14-556, slip op. at 23 (U.S. June 26, 2015).
4. “Cohabitation” was first criminalized by federal legislation in the mid-nineteenth century as a strategy to more easily prosecute Mormon polygamists in what was then Utah Territory. Under Utah’s antipolygamy law, “cohabitation” essentially refers to a legally married person living with another person or persons (to whom they are not legally married) and holding them out as their spouse(s). Cohabitation is still used in Utah to prosecute Mormon polygamy, but not monogamous unmarried couples, adultery, or other kinds of non-Mormon religious plural marriage. To be clear: the decision in Brown v. Buhman did not legalize polygamy but nullified Utah’s criminalization of “cohabitation” in its antipolygamy statute. Had the case made it to the Supreme Court the issue of a constitutional right to practice polygamy, that is, a right to engage in bigamy, would not have been on the table; rather, the right to “religious cohabitation” would have been decided.
5. While Obergefell ensured gay marriages would be allowed across the nation, Brown v. Buhman only made it to the Tenth Circuit Court of Appeals. In April 2016 the Tenth Circuit ordered dismissal of the case (and by extension the findings of the previous court) on the grounds that the Utah County Attorney’s Office policy of limiting polygamy prosecutions to those involving child abuse, bigamy, fraud, and/or violence meant that the Browns had no credible fear of prosecution and thus no standing to bring the case in the first place. While the Browns appealed the Tenth Circuit Court’s decision to the Supreme Court in September 2016, the Supreme Court denied certiorari in January 2017, finalizing the Tenth Circuit’s decision and leaving Utah’s criminalization of cohabitation intact. Following the Tenth Circuit’s decision the Utah Legislature sought to revise the state’s bigamy statute to avoid future legal challenges. The proposed bill, HB 99, was narrowly passed in March 2017. And, most recently, in March of 2020, the Utah Legislature completely revised its antipolygamy law, significantly reducing the penalty for “cohabitation,” a development that is discussed further below.
6. See Pamela Butler, “Marriage,” in The Routledge History of American Sexuality, ed. Kevin P. Murphy, Jason Ruiz, and David Serlin (New York: Routledge, 2020), 207-23; Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000); K. Mohrman, “Polygamy,” in The Routledge History of American Sexuality, ed. Kevin P. Murphy, Jason Ruiz, and David Serlin (New York: Routledge, 2020), 263-75; and Christine Talbot, A Foreign Kingdom: Mormons and Polygamy in American Political Culture, 1852-1890 (Urbana: University of Illinois Press, 2013).
7. In a stunningly ahistorical statement, Roberts asserts that marriage “has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” Obergefell, No. 14-556, slip op. at 23 (U.S. June 26, 2015). Butler, “Marriage,” 208.
8. Brenda R. Weber, Latter-day Screens: Gender, Sexuality, and Mediated Mormonism (Durham, NC: Duke University Press, 2019), 12.
9. See Taylor G. Petrey, Tabernacles of Clay: Sexuality and Gender in Modern Mormonism (Chapel Hill: University of North Carolina Press, 2020); Gregory A. Prince, Gay Rights and the Mormon Church: Intended Actions, Unintended Consequences (Salt Lake City: University of Utah Press, 2019); and Neil J. Young, “Mormons and Same-Sex Marriage: From ERA to Prop 8,” in Out of Obscurity: Mormonism Since 1945, ed. Patrick Q. Mason and John G. Turner (New York: Oxford University Press), 144-69.
10. For a selection of scholarship on these issues, see Bruce Burgett, “On the Mormon Question: Race, Sex, and Polygamy in the 1850s and the 1990s,” American Quarterly 57, no. 1 (March 2005): 75-102; Brent Corcoran, ed., Multiply and Replenish: Mormon Essays on Sex and Family (Salt Lake City: Signature Books, 1994); Peter Coviello, Make Yourselves Gods: Mormons and the Unfinished Business of American Secularism (Chicago: University of Chicago Press, 2019); Lawrence Foster, Women, Family, and Utopia: Communal Experiments of the Shakers, the Oneida Community and the Mormons (Syracuse, NY: Syracuse University Press, 1991); Carmon B. Hardy and Dan Erickson, “‘Regeneration; Now and Evermore!‘: Mormon Polygamy and the Physical Rehabilitation of Humankind,” Journal of the History of Sexuality 10, no. 1 (January 2001): 40-61; Amy Hoyt and Sara M. Patterson, “Mormon Masculinity: Changing Gender Expectations in the Era of Transition from Polygamy to Monogamy, 1890-1920,” Gender and History 23, no. 1 (April 2011): 72-91; Amanda Hendrix-Komoto, “Mahana, You Naked! Modesty, Sexuality, and Race in the Mormon Pacific,” in Mason and Turner, Out of Obscurity, 173-97; Carol Cornwall Madsen, ed. Battle for the Ballot: Essays on Woman Suffrage in Utah, 1870-1896 (Logan: Utah State University, 1997); Patrick Q. Mason, “The Prohibition of Interracial Marriage in Utah, 1888-1963,” Utah Historical Quarterly 76, no. 2 (Spring 2008): 108-31; Katherine Mohrman, “Exceptionally Queer: Mormon Peculiarity and US Exceptionalism” (PhD diss., University of Minnesota, 2017); K. Mohrman, “Polygamy”; Petrey, Tabernacles of Clay; Prince, Gay Rights and the Mormon Church; D. Michael Quinn, Same-Sex Dynamics Among Nineteenth-Century Americans: A Mormon Example (Urbana: University of Illinois, 1996); Talbot, A Foreign Kingdom; Laurel Thatcher Ulrich, A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870 (New York: Vintage Books, 2017); Lola Van Wagenen, “In Their Own Behalf: The Politicization of Mormon Women and the 1870 Franchise,” Dialogue: A Journal of Mormon Thought 24, no. 1 (Winter 1991): 31-43; Brenda R. Weber, Latter-day Screens; Young, “Mormons and Same-Sex Marriage”; and Neil J. Young, “Fascinating and Happy: Mormon Women, the LDS Church, and the Politics of Sexual Conservatism,” in Devotions and Desires: Histories of Sexuality and Religion in the Twentieth-Century United States, ed. Gillian Frank, Bethany Moreton, and Heather R. White (Chapel Hill: University of North Carolina Press, 2018), 193-213.
11. See Randall Balmer, Evangelicalism in America (Waco, TX: Baylor University Press, 2016), and Seth Dowland, Family Values and the Rise of the Christian Right (Philadelphia: University of Pennsylvania Press, 2015) for discussions of the racial dynamics of the emergence of the Religious Right and specifically how those racial motivations manifested in an agenda focused on gender, sexuality, family, marriage, and education.
12. Matthew L. Harris, Thunder from the Right: Ezra Taft Benson in Mormonism and Politics (Urbana: University of Illinois Press, 2019); Petrey, Tabernacles of Clay; and Neil J. Young, We Gather Together: The Religious Right and the Problem of Interfaith Politics (New York: Oxford University Press, 2016).
13. Petrey, Tabernacles of Clay, 106.
14. Scholarship has examined the ways that political discourse around gender and sexuality, heavily influenced by the Religious Right, has been used to police people of color in the United States. For an example, see Traci C. West, “The Policing of Poor Black Women’s Sexual Reproduction,” in God Forbid: Religion and Sex in American Public Life, ed. Kathleen M. Sands (New York: Oxford University Press, 2000), 135-54. Petrey, Tabernacles of Clay, 122.
15. Joanna Brooks, Mormonism and White Supremacy: American Religion and the Problem of Racial Innocence (New York: Oxford University Press, 2020).
16. Mohrman, “Exceptionally Queer.”
17. Of course, Mormonism has been criticized in a variety of ways, to a variety of degrees, and for a variety of issues by a variety of people. That criticism cannot be concisely identified and segregated to specific decades; however, my temporal designations here refer to high points in the kinds of criticism Mormonism was subject to during specific periods.
18. Courtney W. Bailey and Adam James Zahren, “Post-Homophobia Comes Out: The Rise of Mormon Polygamy in US Popular Culture,” Queer Studies in Media & Popular Culture 1, no. 2 (June 2016): 160. Also see Margaret Denike, “What’s Queer About Polygamy?” in Queer Theory, Law, Culture, and Empire, ed. Robert Leckey and Kim Brooks (New York: Routledge, 2010), 137-53 for a similar example. Weber discusses these two tropes in chapters 3 and 4 of Latter-day Screens.
19. See Mohrman, “Exceptionally Queer” and “Polygamy.”
20. See Siobhan B. Somerville, “Queer Loving,” GLQ: Journal of Gay and Lesbian Studies 1, no. 3 (2005): 335-70, and Molly McGarry, “Crimes of Moral Turpitude: Questions at the Borders of Religion, the Secular, and the U.S. Nation-State,” in Religion, the Secular, and the Politics of Sexual Difference, ed. Linell E. Cady and Tracy Fessenden (New York: Columbia University Press, 2013), 175-94, for discussion of the ways sexual and moral categories have historically been used to restrict immigration without explicitly citing, but still targeting racial, national, and religious identity.
21. For two of numerous possible examples, see Mark Snyder, “Historic LGBT-Faith Coalition Backs Nondiscrimination in Utah,” Equality Federation, March 4, 2015, https://www.equalityfederation.org/2015/03/historic-lgbt-faith-coalition-backs-non-discrimination-in-utah/; and Young, “Mormons and Same-Sex Marriage,” esp. 162-69.
22. Prince in Gay Rights and the Mormon Church, for example, charts “a subtle shift in the rhetoric of the LDS Church hierarchy” that utilizes a particular conception of religious freedom in opposition to other civil rights (248).
23. Sister Wives, season 12, episode 14, “Risking Arrest Part 2,” aired April 1, 2018, on The Learning Channel.
Copyright 2021 by the Board of Trustees of the University of Illinois