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Add Sen. Orrin Hatch to the list of Utah politicians squirming as they offer evolving views on
polygamy.
In a series of interviews with The Salt Lake Tribune this month, the chairman of the Senate
Judiciary Committee said constitutional case law prohibits plural marriages, but that police and
prosecutors should devote resources to fighting crimes that are more serious and easier to prove.
During the course of his August recess from Congress, though, Hatch also has offered
contradictory opinions on whether a future set of Supreme Court justices could find room in the
Constitution to protect polygamy as a free expression of religion.
``My bottom line would be that polygamy is against the law. It is against the beliefs and
teachings of my church . . . and I agree that it is wrong,'' the Republican senator said. ``I wish
nobody would practice plural marriage but I don't condemn those that practice it.''
And as Hatch, a Mormon, tried to clarify what he described as his first extensive remarks on
polygamy since winning a Senate seat in 1976, it was as if he were wrestling with an 800-pound
political porcupine -- and they were going extra rounds. ``The federal government would be nuts
to get involved in something like this, unless they found some broad, large-scale federal fraud or
something like that, and even then they'd probably want the state and local people to take care of
it,'' he said.
In cases involving allegations such as incest, rape, and sexual and child abuse, Hatch said,
law enforcement officials should crack down on polygamists as they would anyone else.
Otherwise, he said, there are higher priorities to deal with, such as drug use and gangs.
In an Aug. 11 taped interview at his Salt Lake City congressional office, Hatch said a
``principled argument'' could be made for allowing polygamy as a ``truly held religious belief.''
``I don't think the Constitution is clear. I think the constitutional law is clear,'' he said. ``The
Constitution is ambiguous with regard to this. It provides for religious freedom.''
But during two telephone interviews on the subject Thursday, he described polygamy as
flat-out ``wrong'' and said of the Constitution: ``It's not ambiguous'' even though it ``does not
define the marital state.''
``You have to take my word that this is what I meant,'' he said of the contradictions. ``All of us
agree that it is a practice that is no longer acceptable and is illegal.''
With growing international attention on polygamy in Utah, the topic is not one Hatch is eager
to discuss. It is, as The Washington Post wrote, ``one of Utah's best-known dirty little secrets.''
There are an estimated 20,000 to 40,000 polygamists living mostly in Utah and surrounding
border communities.
The Mormon church banned the practice 108 years ago and it is expressly prohibited in the
state Constitution. That was after the U.S. Supreme Court in 1878 called polygamy ``an offense
against society.''
Utah and its leaders, who, like Hatch, mostly belong to the predominant LDS church, have
little political will to enforce century-old anti-polygamy laws. Prosecutions can be tricky since
judicial bodies have rendered conflicting opinions on polygamists' rights. The Utah Supreme
Court has said Utah's constitutional ban on polygamy is unenforceable, like pursuing allegations
of adultery or fornication.
Hatch, mentioned by some as a presidential contender in 2000, frequently weighs in on
constitutional matters and the appointment of federal judges. He represents the first Utahn to
have significant power over the nation's courts since the judicial attack on polygamy in the 19th
century.
Yet practically no other subject shows the contrast as starkly between the old-fashioned and
modern versions of Hatch, who keeps one foot in the Mormon hierarchy and the other in the
Washington establishment.
Hatch's great-grandfather, Jeremiah, was a polygamist who settled in Utah in 1850 and had
three wives (two at one time, after the first wife died) and 30 children. Nearly 150 years later,
Hatch appears the picture of a dedicated monogamist, having celebrated his 41st anniversary with
his wife, Elaine, on Friday.
Also during his August recess, Hatch has watched the furor caused by polygamy comments
from Utah GOP Gov. Mike Leavitt, himself the great-great-grandson of a polygamist. On July
23, the governor suggested that polygamy was a protected religious freedom and he praised the
character and work ethic of most polygamists.
A turbulent month later, Leavitt retracted those comments, and on Thursday tried to further
distance himself from his initial remarks. ``I believe polygamy is against the law,'' he said, ``and
it should be.''
Outside Utah, polygamy and Mormonism often are synonymous.
A recent series in The Tribune pointed out that the largest polygamist enclave in the state,
Hildale, and adjacent Colorado City, Ariz., ranks among the top communities in the West in the
use of Medicaid, food stamps and the Women, Infants and Children nutrition program for the
poor.
And public outcry has come after the recent arrests of two prominent members of the Kingston
polygamist clan on charges of incest and child abuse, reports of possible widespread welfare
fraud and accompanying national and international publicity.
Since those who practice polygamy today are not affiliated with the LDS church, ``polygamists
and polygamist organizations that occasionally make the news are not dissident wings,'' said
church spokesman Don LeFevre.
``It does pose a real dilemma for conservatives and the LDS church, which has been trying to
live it down for years,'' said John Flynn, a University of Utah constitutional and antitrust law
professor. ``On the one hand, they're libertarians. On the other hand, the LDS church is unjustly
blamed or painted with a black mark because of something long ago . . . and hence would rather
not have the issue debated.''
The constitutional debate on polygamy is far more complicated, Flynn said. ``Drawing that
line on the outer limits of religious freedom and the state's legitimate interest in protecting
individuals is difficult.''
According to Flynn, the unamendable ordinance against polygamy which the federal
government insisted on inserting into the Utah Constitution as a condition of statehood in 1896 is
itself unconstitutional. Utah should not have had to give up the power to amend part of its own
constitution, he said, since the Supreme Court has held all states are on an ``equal footing.''
Hatch said in his earlier interview ``many people legitimately argue that . . . legitimate,
heartfelt religious beliefs, even though repugnant to the government, have to be recognized by
the government. . . . There's a tremendously competent constitutional argument in favor of that.''
Polygamy is illegal, he said, since ``I don't think the First Amendment embraces it at this point.
I think a legitimate argument can be made that it does, but I don't think that it would be upheld.
Now, there may come a time in the future where a more liberal Supreme Court would say, `We're
going to recognize any religious belief.' ''
The court ruled the First Amendment did not exempt citizens from criminal anti-bigamy laws.
Hatch said ``other religious freedom decisions by the Supreme Court have also flown in the face
of the broad interpretation of the First Amendment. . . . I do believe the religious clause should
be broadly construed.''
However, Hatch said Thursday he ``would not'' change the ruling if it were in his power.
``My bottom line would be that polygamy is against the law. It is against the beliefs and
teachings of my church . . . and I agree that it is wrong,'' he said. ``There are good arguments
against practicing plural marriage.''
Polygamy first became a national issue soon after it was officially acknowledged as part of the
LDS church doctrine in 1852, when adherents began claiming protection under the First
Amendment's religious clause. Congress first attempted to deal with it 10 years later in the
Morrill Act, which went largely unenforced for another 13 years.
In 1874, English immigrant George Reynolds, serving as private secretary to Mormon founder
Brigham Young, was indicted on polygamy charges under the act and later convicted. He
appealed to the Utah Supreme Court, which reversed his conviction on a technical matter.
A year later he was indicted again, and the conviction stuck. Reynolds turned to the U.S.
Supreme Court, arguing the First Amendment protected polygamy as a free exercise of religion.
The court, in its landmark 1878 Reynolds decision, disagreed.
President Rutherford B. Hayes repeatedly threatened to withdraw privileges of U.S. citizenship
from Utah Mormons, prompting Congress to pass an 1882 law making it easier to prosecute
polygamists. By 1890, the LDS church formally had renounced plural marriages to escape the
federal convictions and imprisonments toppling Mormon leadership.
In 1953, a public backlash erupted over a state and federal raid on the Short Creek group of
polygamists living along the Utah-Arizona border. Since then, there has not been an attempt to
prosecute a polygamist.
Hatch said Thursday that ``you can't really talk about it [polygamy] generally,'' but earlier he
described the polygamists he had met as ``very religious people, very dedicated, very
hard-working, basically decent people.''
That view of a relatively benign community of polygamists did not wash with some critics.
``Inherent in this system is a diminishing of women, a disempowerment of young women and
little girls, and an acculturation of them to accept as the natural order of things and God's rule
that they are in subjection to their husbands,'' said Edwin Firmage, a University of Utah
constitutional law professor who wrote a legal history of the 19th-century Mormon church.
``I think this is deeply spiritually wrong, deeply ethically wrong, and therefore, of necessity,
legally wrong,'' Firmage said. ``And wrong for the man, the young man and the boy, as much
wrong as it is for the girl, simply less obvious.''