The Unforgettable Ms. McKinney

THE UNFORGETTABLE MS. McKINNEY

© 2011 by Hugh Stevens

            To borrow a phrase from the Reader’s Digest, Joyce McKinney is “one of the most unforgettable characters I ever met,” but I had not thought about her in years until a couple of months ago, when I read The New York Times’ review of “Tabloid,” a new documentary film about her by Errol Morris.

If you have been fortunate enough to have had Ms. McKinney escape your notice until now, here’s a summary of her background by Washington Post writer Michael O’Sullivan:

Though McKinney is less than a household name in the United States, in 1977 the former beauty queen from small-town North Carolina made headlines in England when reports surfaced that she had abducted a 19-year-old Mormon missionary in London named Kirk Anderson, allegedly holing up with him in a remote cottage for several days of nearly nonstop sex. Handcuffs may or may not have been involved. And Anderson — with whom McKinney apparently shared a romantic history of some kind back in Utah — may or may not have been a willing participant. Once the British tabloids got hold of the story, it turned into a lurid tale of the “manacled Mormon,” as headlines at the time referred to Anderson.

            To me, Morris’ choice of Ms. McKinney as a documentary subject is unfathomable --especially now that I have seen a DVD version of “Tabloid”-- but many critics, including the legendary Roger Ebert and The New Yorker’s David Denby, have given the film high marks (though Denby did label it “strange”).   Ms. McKinney herself has stimulated interest in the film – and numerous postings on You Tube® -- by showing up at festival screenings and loudly denouncing both Morris and his movie.

            Although Morris’ film will tell most viewers much more about Ms. McKinney than they probably care to know, it does not mention the libel suit that she filed against The Avery Journal in the late 1980s.   Together with Kelly Johnson, a Newland attorney, I defended the suit, which is how I came to meet the eccentric, self-absorbed woman whom Morris inexplicably has rescued from the obscurity to which she is so richly entitled.

            Ms. McKinney’s lawsuit against her hometown’s weekly newspaper and its editor, Bertie Cantrell, arose out of an altercation in August, 1986 between her and her neighbor, Judy Benfield, over the incessant barking of Ms. Benfield’s hound dogs.   After exchanging threats and insults, the two women swore out criminal warrants charging each other with “communicating threats.”   The Journal’s first story about their dispute included the following paragraphs:

Miss McKinney made international headlines several years ago for allegedly kidnapping and raping a Mormon missionary in London, England.  Miss McKinney fled Europe before the trial was over and it still listed in INTERPOL although authorities in England have made no attempt to extradite her.

[Mrs. Benfield’s] warrant had not been served at press time as the Avery County Sheriff’s Department has been unable to locate Miss McKinney.

The Journal’s story the following week included these statements:

Sheriff Clinton Phillips said he notified both women to come to the jail and be served, as is often done in misdemeanor cases against county residents.  Judy Benfield came to the jail for her warrant to be served against her and signed a written promise pending court action.  Joy McKinney never came in to have the warrant served and make bond and has apparently left the county in an attempt to avoid arrest.

            A few weeks after the articles appeared Ms. McKinney sued the Journal, Ms. Cantrell and Mrs. Benfield for libel.   She voluntarily dismissed that suit in September, 1987.   In January 1988 she filed a similar suit in the U.S. District Court for the Western District of North Carolina, which swiftly dismissed it on jurisdictional grounds.   Undaunted, she re-instituted her state court action in July, 1988. 

            My first face-to-face encounter with Ms. McKinney was at her deposition, where she turned out to be one of the most combative, argumentative witnesses I have encountered in more than 40 years of law practice.  She was feisty, fidgety and frustrating.  She could have given Bill Clinton lessons in hair-splitting.   Two of her favorite techniques for evading or finessing a question were to pretend that she didn’t understand it, or to respond to it with a question of her own.  Another was to launch into a soliloquy about how she was a victim of “Mormon lies” or how Ms. Cantrell had conspired with Ms. Benfield to ruin her reputation. 

            We based the Journal’s opposition to Ms. McKinney’s libel suit on the “wire service” defense, a legal doctrine which provides that a writer is entitled to rely on and repeat factual statements published by reputable news organizations such as the Associated Press so long as he or she has no reason to believe that the statements are untrue.   At the time, the defense had not been recognized in any North Carolina case, but Ms. Cantrell’s files were replete with stories about Ms. McKinney’s U. K. escapades clipped from The Charlotte Observer and other newspapers from around the country.   When we confronted Ms. McKinney with the clippings she didn’t deny that the stories had been published, but dismissed their contents as lies planted by the Mormons to discredit her. 

We also asked Ms. McKinney about stories published in two British tabloid papers, The Daily Express and The Daily Mirror, including an article in the latter that was illustrated by a nude photo of her sitting on a horse (which also was bare-back).   Ms. McKinney testified that “to the best of my memory” she had never posed for such a photograph.  She theorized that the photo was created either by superimposing her face on another woman’s body or by stealing and “retouching” an actual photo of her in which she had been clothed.

            The Avery County sheriff provided us with an affidavit confirming the Journal’s statements that Ms. McKinney was still listed in INTERPOL and had avoided his attempts to serve her with Ms. Benfield’s warrant.

            Armed with Ms. McKinney’s deposition transcript and the sheriff’s affidavit, we moved for summary judgment on behalf of the newspaper.  Judge Robert W. Kirby, a seasoned and phlegmatic superior court judge from Gaston County, heard arguments on our motion in Newland in October, 1988.    Terms of civil superior court didn’t happen very often in Avery County in 1988 (they still don’t), so the courtroom was packed with parties, witnesses and potential jurors.  The jury box was occupied by out-of-town lawyers who had come to argue other cases.  One of them was John Edwards, who was then an associate in a Raleigh law firm and whose own tabloid notoriety lay far in the future.

            As Ms. McKinney’s lawyer and I made our presentations to Judge Kirby,  she grew more and more agitated.  She began to squirm in her chair, and both her facial expressions and her body language conveyed her rising annoyance.  Finally she began interjecting increasingly loud vocal comments, saying “Your Honor, I have to live here!” and (referring to me) “I’m tired of hearing him lie over there!” and “I just can’t stand these lies anymore!”    When she refused the admonitions of both Judge Kirby and her own lawyer to sit down and be quiet, the judge suggested that she go outside, saying “it’s not necessary for her to be here.”  Her father, who was among the startled spectators, came up out of the audience and led her up the aisle to the back of the courtroom.  As the door closed behind her she was still protesting.

            Judge Kirby granted our motion for summary judgment.  Ms. McKinney appealed.  In July, 1990 the North Carolina Court of Appeals affirmed Judge Kirby’s ruling.   The court’s opinion recognized the “wire service” defense, saying that most of the information at issue

 . . . was taken from wire service stories published in such newspapers as The Charlotte Observer, The Winston-Salem Journal, The Asheville Citizen, The Greensboro Daily News, and The News and Observer. One of these articles was an Associated Press dispatch published in the Charlotte Observer on 24 November 1977 which reported the sworn courtroom testimony of Kirk Anderson, the Mormon missionary plaintiff was charged in England with kidnapping. The graphic testimony charges that plaintiff and an accomplice abducted Anderson and chained him to a bed, at which time, plaintiff performed oral sex upon him and, having stimulated him against his will, proceeded to have sexual intercourse with Anderson against his will.

Defendant Cantrell relied on reputable wire services and daily newspapers in writing the first part of her summary quoted above. The articles in the Avery Journal also were substantially in accord with the contents of the stories relied upon. As a matter of law, we do not think that Cantrell’s reliance on the articles could constitute negligence on her part. . . . There was nothing inconsistent or improbable in the articles upon which Cantrell relied which should have prompted her to investigate the reliability of the stories. This is a case in which application of what has been termed the “wire service” defense in other jurisdictions is appropriate. The sources relied upon by defendant Cantrell are known for their accuracy and are regularly relied upon by local newspapers without independent verification.

            The court also ruled that Ms. Cantrell was justified in relying on the sheriff as the source of information about Ms. McKinney’s being listed in INTERPOL and as to the status of the warrant sworn out against her by Ms. Benfield.  “In fact,” the court said, “consulting a law enforcement agency may have been the only avenue for obtaining this information.”

            As far as I was concerned, the Court of Appeals’ opinion closed the book on Joyce McKinney, but the release of “Tabloid” re-opened it.  The movie has not reached any North Carolina theaters yet, and it’s not up to me to tell you whether to go see it when it does.  All I will say is that for me it proved something that I have long suspected: that to Joyce McKinney, embarrassing publicity is infinitely preferable to no publicity at all.

Saturday Mornings at the Town Theater

This photo by Don Bolden, which must have been taken just about the year we moved to Burlington, shows the Town Theater’s enticing “It’s COOL Inside” banner. The building on the next corner is the old City Hall, which has been demolished. In the distance is Front Street Methodist Church.

My family moved to Burlington from Galax, Virginia in 1954. We were very familiar with Burlington because my mother’s family had moved there from Caswell County during the Depression and my parents had met there. My father, who was a native of Randolph County, was an office manager for Burlington Mills -- his only employer from the time he graduated from high school in 1930 until he retired 47 years later – which had transferred him to Galax in the late 1930s. He quickly decided that Galax was no place for a bachelor.

After my parents were married in the First Baptist Church in Burlington just before Christmas, 1939, they set up housekeeping in Galax. At first they lived in a series of basement and garage apartments, all of which my mother would later describe as very Spartan. By the time my mother was pregnant with me in 1944, however, they were living in a house rented from a couple named Moore with whom they had become friends. Mr. Moore, who also worked for Burlington Mills, had been drafted and his wife had gone back to her hometown in another state to wait out the duration of the war, so they turned their house over to my parents. Given the acute shortage of housing in Galax during World War II this was a great stroke of luck. Because Galax had no hospital, my father sent my mother back to Burlington to await my arrival, which is why I am “a Tar Heel born” rather than a native Virginian. I was born at the old Alamance Memorial Hospital on Rainey Street on August 29, 1944, but spent my first ten years in Galax.

My mother’s parents, both of her brothers, and one of her sisters lived in or near Burlington, so we made regular visits when I was a youngster. I sometimes spent a week or two in the summer visiting with my first cousin Lynn Smith, whose family lived on St. John Street a few doors from my grandparents.[1] Consequently, when my parents moved back to the city in the spring of 1954 I came to a place that was not completely strange to me. My parents rented a little house at 318 Highland Avenue where we were to live while they built a new house across town.

One thing that I expected I would not like about Burlington was the summer heat, which I had experienced during my visits. Galax sits at about 2500 feet above sea level, in a valley of the Blue Ridge Mountains. Although it certainly experienced hot summer days, they were relatively few and infrequent, and the nights generally were cool and pleasant. Burlington seemed sultry by comparison. Whereas I usually slept under a light blanket at home, I had vivid memories of sleeping, or trying to sleep, at my cousin’s house while lying on top of the bed clothes in my underwear with an oscillating electric fan blowing on my sweaty body. My expectations and fears were borne out soon after we moved; in June of 1954 the thermometer hit 100 degrees several days in a row. My mother repeatedly said of our little rental house, “This place is like an oven.” (Actually, “sauna” would have been a better metaphor, but at that point in our lives none of us had ever heard of such a thing.)

In those days almost no homes, and few businesses, had air conditioning. May Memorial Library, which did, quickly became one of my favorite places, and would have even had I not been a voracious reader. Like most major churches, First Baptist, which we attended, was air conditioned, as was Sellars’ department store and Burlington’s two movie theaters – the Paramount and the Town. The Paramount was the classier of the two, but the Town, on Front Street, was where Lynn, our neighborhood friends and I went on Saturday mornings to cool off and enjoy the weekly “kiddie show,” which usually included several cartoons, a western (Lash LaRue, the “King of the Bullwhip,” was a favorite), a comedy featuring Abbott and Costello or Huntz Hall and the Bowery Boys, and one or two serials, each episode of which had a cliffhanger ending.

Admission to the kiddie show was nine cents. Our mothers would give each of us a quarter, which would allow us to buy a box of popcorn for a dime and a Coke or a candy bar, which were a nickel each. In retrospect, our parents must have considered it astonishingly cheap and effective babysitting.

In early afternoon we would emerge blinking into the heat and head straight for Zack’s, a hot dog stand steps from the theater. Zack’s, the official name of which was the Alamance Hot Wiener Lunch, is still in existence. Having been run by the Touloupas family since 1928, it was and is a classic example of the Greek-owned hot dog stands and short-order restaurants that you could find in any North Carolina town of any size in the 1950s. Several, including Dick’s Hot Dogs in Wilson and the Roast Grill in Raleigh, are still in operation. (You can read a history of Zack’s, and see historic photographs, here: http://www.zackshotdogs.com/portal/History.aspx .)

What we went to Zack’s for in 1954 are what you go there for today: traditional Southern style hot dogs featuring a grilled wiener in a steamed bun topped with mustard, chili and either slaw or onions (or both). If Lynn and I were together, as we usually were, one of us would have a dollar for our lunch. The hot dogs were 15 cents each, so we would order six. The ritual involved in dispensing them was endlessly fascinating. The counter man, who in those days usually was John Touloupas, would pull six warm buns from the steamer, put a grilled hot dog in each, and line them up from on his left arm from hand to elbow. Mustard was swiftly applied with a wooden stick and chili with a wooden spoon, followed by your choice of slaw and/or onions. Then, in a feat of legerdemain at which I still marvel, he would deftly remove each “dog” from his arm and, using only his right hand, wrap it in onionskin paper and put it into a paper bag.

We paid and left the store, each carrying a bag (or, to use our terminology, a “paper sack”) containing three extraordinarily odorous and greasy hot dogs. Our destination was a little grocery and service station that our grandfather, W. L. Smith, operated on the corner of Holt and North Main streets; our goal was to get there before the grease from the hot dogs ate the bottoms out of the paper sacks.

Our “Paw-Paw,” who was known as “Smitty” to his friends and patrons like Paul “Hardrock” Simpson, Burlington’s legendary “running postman,” had been a merchant his entire adult life. My mother said he kept his little corner store primarily “to have something to do” after my grandmother died in 1950. His store had a single Sinclair gas pump, the access to which had been created by “cutting off the corner” of the building’s first floor to create a triangular overhang. Patrons drove their cars into the space from one street and exited into the other. As a consequence of this arrangement, the tiny store itself also was triangular. Its interior was dominated by a glass-fronted case displaying “Mary Janes,” “Bit O’ Honeys,” “Bulls Eyes,” “Fireballs” and other kinds of penny candy. The case also held “Tootsie Rolls,” “Baby Ruths” and many other kinds of candy bars, as well as chewing gum, “Bazooka” bubblegum, and candy cigarettes (which our parents forbade us to buy). In summer there was a box of bubblegum pieces, each of which was enclosed in a wrapper that also contained a baseball player’s card. The store also offered an eclectic array of useful everyday items ranging from cigarettes and matches to bread and Vienna Sausage.

Outside the store, under the overhang, were an ice cream box and two large “chill boxes,” or refrigerated chests, of soft drinks – one red, for the drinks delivered by the Coca-Cola route man, and the other blue, for Pepsi products. Lifting the four lids on the ice cream box revealed an array of frozen treasures. Beneath one were popsicles in various colors and flavors and other concoctions on wooded sticks, including “Brown Mules,” “Fudgsicles,” and “Dreamsicles.” Another compartment contained “Dixie cups” in various flavors, while a third was the place to look for an ice cream sandwich, a “Nutty Buddy,” or a “Push-Up.” The fourth held pints and half gallons.

In addition to Cokes and Pepsis, the drink boxes dispensed Orange Crush (my personal favorite), Nu-Grape soda, Seven-Up, Cheerwine, ginger ale, two or three brands of root beer, and Yoo-Hoo, a chocolate drink for which I could never acquire a taste despite its being endorsed by Yogi Berra, one of my baseball heroes. In the chill boxes, which were also known as “sliders” because of the way they operated, the bottles sat in cold water in rows with their necks protruding up through metal guides. A coin-operated mechanism allowed patrons to slide the soft drink of their choice along the guides and lift it out through a kind of gate, which promptly closed. Paw-Paw sometimes allowed us to fill the drink boxes and empty the “cap catchers” attached to the bottle openers.

Alongside the soft drink chillers and the ice cream chest were two or three slightly dilapidated wooden chairs. Our grandfather, who always wore a sweat-stained grey fedora, often sat in one chatting with men from the neighborhood while he waited for the next customer. If all the chairs were occupied a patron could join the conversation by turning a wooden soft drink crate up onto its end and sitting on it.

I guess “Smitty’s” was a good place for old men to sit and swap yarns; for sure it was an especially good place for a young boy to sit and eat hot dogs and drink an Orange Crush on a hot summer afternoon.

---

[1] Lynn, who was a year younger than me, became an excellent baseball player. He played third base for WHS and for East Carolina University in the 1960s.

Blue Bags

Blue Bags

The conversation took place early one morning about five years ago while I was walking my dog, who had just made her daily deposit on a neighbor’s lawn. As usual, I inserted my right hand into a plastic newspaper bag, pulled the bag up over my arm, and bent down to retrieve the poop with my now shrouded hand. As I carefully picked up the offensive material I heard a woman’s voice from behind me.

“Pardon me,” the voice said, “but do you mind telling me where you got that cute blue bag?”

I straightened up and carefully reversed the plastic bag down over my hand, which now held Millie’s droppings, and tied a knot in the end.

“Certainly,” I said, “I got it from The New York Times.”

The woman, whose own dog was tugging at his leash, looked puzzled.

“We get the Times delivered to our office,” I explained, “so I collect the blue bags in which it comes and bring them home to use for picking up after my dog.”

“Oh,” she said. “I thought maybe you could buy them at a pet store or somewhere.”

“Not that I know of,” I replied, “but of course you can use the bags the local paper comes in, too. I just think the blue ones are a bit more esthetically pleasing.”

* * * * * *

That conversation, which occurred before the Times began offering home delivery in my neighborhood, probably wouldn’t happen today. As The News & Observer’s circulation has dwindled in my section of town in recent years, the Times’ presence has become increasingly apparent. When I walk Millie these days, blue newspaper bags outnumber translucent ones on some streets in my neighborhood.

In my perambulations I often find myself wondering why so many of my neighbors now get the Times delivered. It’s not as if a glib salesman showed up at our doors and we subscribed just to get him to move on; to the contrary, signing up requires a conscious effort – not to mention a financial commitment. (Ours is the sort of neighborhood where almost everyone has a high-speed internet connection, so they could read the newspaper on line for free if they wished.) I doubt that even the most status-conscious residents in our area have subscribed solely because of whatever cachet is attached to being identifiable as a Times reader, and most don’t even own a dog.

At the end of the day I’m left to assume that most the blue bags that appear each morning in my neighbors’ yards and driveways are there for the same reason as mine: i.e., that there are still a lot of people who will pay for the opportunity to hold an honest-to-God printed newspaper in their hands – provided, of course, that it provides them with deep, literate and intellectually stimulating information they want to know.

Polygamy and the First Amendment

Copyright, 2008 by Hugh Stevens

I'm teaching First Amendment Law at the University of North Carolina School of Law this semester. On February 1, 2008 I presented the following paper at the school's annual "Festival of Legal Learning," a kind of Continuing Legal Education smorgasbord.


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

A confluence of legal and cultural trends – including such disparate influences as the HBO series “Big Love,” the Internet, the Supreme Court’s 2003 decision in Lawrence v. Texas, and Mitt Romney’s presidential campaign – are bringing polygamy out of the closet. Members of “plural families,” all of whom look like typical suburbanites, openly discuss their lifestyle with Oprah and her studio audience. A polygamist family is featured in a documentary film. Internet sites such as http://www.polygamy.com/ and http://www.principlevoices.com/ give voice to polygamists and advocate for the lifestyle. The state of Utah charges the leader of a polygamist sect with accessory to rape. Children of polygamist unions stage a public demonstration to show they are just like other kids. The New York Times reports that a woman and nine children killed in a Bronx house fire were members of a polygamist community whose cultural roots were in West Africa.

Experts estimate that although state statutes (and, in Utah, the state constitution) make polygamy illegal in every U.S. jurisdiction, 30,000 to 50,000 people practice polygamy in this country, although the exact number understandably is elusive. In North Carolina, as in many states, the criminal code does not specifically reference polygamy; rather, the prohibition is accomplished by a ban on “bigamy.” See G.S. §14-183, which makes it a Class I felony for a married person to marry a second person.

Many of the polygamists who have gone public have done so in order to advocate for the “decriminalization” of the practice. They argue that the Supreme Court’s opinion in Lawrence v. Texas, 539 U.S. 558 (2003) provides support for their contention that sexual and living arrangements among and between consenting adults are among the fundamental liberties protected by the due process clause of the Fourteenth Amendment. They point out that society currently tolerates or condones a wide array of family arrangements and lifestyles, including open cohabitation by unmarried persons and “serial polygamy” facilitated by liberal divorce laws.

Many – perhaps most – of the Americans who practice polygamy say they do so out of a conscientious desire to comply with sincerely-held religious beliefs. Does this mean that the “free exercise” clause of the First Amendment protects them against prosecution for violating anti-polygamy and anti-bigamy laws? As far is the law is concerned, the answer is an emphatic “no” and was settled by the Supreme Court more than 125 years ago. As we shall see, however, the fact that an issue is settled constitutionally does not necessarily mean that it has been resolved once and for all culturally and philosophically.

Polygamy – A Brief Overview

For many Americans “polygamy” is synonymous with, or at least inextricably linked to, Mormonism. The association is natural, because polygamy was a fundamental tenet of the Mormon Church from its founding in 1830 until the late 1880s, when the church officially repudiated the practice in order for Utah to gain statehood. The church’s abandonment of the practice doctrinally did not eradicate it, however. Mitt Romney’s great-grandfather, Miles Park Romney, married his fifth wife in 1897 – more than six years after the church’s hierarchy banned the practice – and polygamy continued to flourish among breakaway fundamentalist Mormon adherents, many of whose descendants live today in isolated rural communities in southern Utah and northern Arizona.

Although polygamy is associated primarily with Mormonism in the United States, where it is socially aberrant and universally illegal, it is practiced and accepted in a wide array of other countries and cultures. According to Israeli anthropologist Joseph Ginat, who co-authored a leading academic treatise on the subject, polygamy is practiced openly in Jordan, Israel, Syria, Yemen, Iraq and Iran, as well as some of the Muslim nations of North Africa -- including Egypt, Sudan, Morocco and Algeria. Plural marriages also are commonplace in other parts of Africa, including some countries where Christianity is flourishing. (One of the more interesting sidelights of the controversy over sexuality currently roiling the international Anglican Community is a dispute between some Episcopal clergy in the United States who advocate for greater acceptance of gays and lesbians and the former Bishop of Kenya, who staunchly opposes an revision of the church’s views about same-sex relationships while simultaneously advocating for open-mindedness and pastoral care for Christians who live in polygamous marriages.)

Historically, polygamy was practiced and accepted by many cultures and religions. The Bible does not condemn it. Genesis says Abraham had at least three wives, and Deuteronomy includes instructions on how a man’s property should be divided among his sons born to different wives (Deut. 21:15). David had several wives (2 Samuel 5:13) and Solomon, the champion Old Testament polygamist, had 700 – and 300 concubines (1 Kings 11:3). According to the Encyclopedia of Islam, Muhammad had 10 wives and two concubines. Experts on Native American culture say that polygamy was fairly widespread among American Indian tribes, which frequently included many more women than men owing to male deaths resulting from warfare and hunting.

Polygamy and Mormonism

Joseph Smith was a 24-year-old New York farmer when, in 1830, he founded the Church of Jesus Christ of Latter-Day Saints on the basis of “instructions” contained in a long-buried book, inscribed on gold plates, which he dug up on his farm after being guided to it by an angel. Because Smith derived the new church’s principles primarily from his interpretation of the Old Testament, it is not surprising that his views about marriage and familial relationships were similar to ancient Israelite traditions. Among other things, he concluded that polygamy was prescribed by God’s law, and he made it a central tenet of the LDS faith. During the early years of the church the practice was hidden and, owing to the small number of Mormon adherents, attracted little attention, but after church leaders publicly embraced the doctrine in 1852 public opposition grew rapidly. Clergy and newspaper editors vehemently decried polygamy as heretical, un-American and abusive to women, and urged that it be outlawed. In 1856 the newly-created Republican Party’s presidential nominee, John C. Fremont, pledged to abolish the "twin relics of barbarism -- slavery and polygamy."

Public and Congressional antipathy toward Mormons became especially virulent in the wake of a violent 1857 episode that became known as the “Mountain Meadows Massacre.” For reasons that remain obscure even today, a colony of Mormons brutally murdered 120 men, women and children from Arkansas who were passing through southwestern Utah en route to California. The killings, which have been described as “the darkest deed of the nineteenth century,” were especially heinous because the Mormons, who had besieged the settlers’ campground for several days, lured their victims out of their camp under a white flag of truce, then systematically shot the men and bludgeoned the women and the children, sparing only a few infants and toddlers. A web site detailing this grim episode and its aftermath is at http://www.law.umkc.edu/faculty/projects/ftrials/mountainmeadows/leetrial.html.

The first anti-polygamy law, the Morrill Anti-Bigamy Bill, was enacted by Congress in 1862 and signed into law by President Lincoln. The law banned polygamy in all U.S. territories; annulled all laws enacted by Utah’s territorial government that “establish, support, maintain, shield or countenance polygamy” (including the statute incorporating the LDS church); and prohibited all religious and charitable organizations in the territories from owning property having a value greater than $50,000. Statutes at Large, 37th Congress, Second Session, p. 501-02. The law included a proviso that it was not to be construed as to interfere with “the right to worship God according to the dictates of conscience,” but only to “annul all acts and laws which establish, maintain, protect or countenance the practice of polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.” Id.

Ulysses S. Grant, who pledged to wipe out Mormon polygamy as a candidate, brought the full weight of the Morrill Bill to bear as President. At his direction United States marshals rounded up hundreds of Mormons and charged them with violating the anti-bigamy law. The church hierarchy selected George Reynolds, secretary to Brigham Young, to test the law.
Reynolds v. United States, (1878)

At Reynolds’ trial the government successfully challenged several potential jurors who acknowledged that they were or had been living in polygamy. In response to the charge of bigamy, Reynolds did not deny that he was a party to a plural marriage. He asked the court to instruct the jury that if they found, as he contended, that he had contracted multiple marriages pursuant to and in conformity with what he believed to be his religious duty, then they should find him not guilty on the grounds that he did not possess the requisite intent to violate the law. The trial judge refused, ruling that if he deliberately married a second time while having still married to his first wife, intent was implied; therefore, the fact that he may not have intended to commit a crime was irrelevant. Reynolds was convicted and sentenced to two years in prison and a $500 fine. After his conviction was upheld by the Supreme Court for the Territory of Utah, Reynolds appealed to the Supreme Court of the United States, which ruled against him unanimously, holding that religious practices inimical to the public interest did not fall under the protection of the First Amendment.

The Court described the issue before it as “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.” Chief Justice Waites’ opinion began by acknowledging that this issue implicates the First Amendment:

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

98 U.S., at 164.

After briefly but accurately summarizing Thomas Jefferson’s and James Madison’s views concerning the relationship between government and religion, and citing Jefferson’s analogy of a “wall of separation” between church and State as “an authoritative declaration of the scope and effect” of the First Amendment, Waite declared that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Id. In his next sentence he immediately made it plain that the Court considered polygamy to be such a subversive practice:

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. Id.

Turning again to the history of the First Amendment, Waite noted that in 1788, immediately after the Virginia Convention asked Congress to propose a Bill of Rights that would include a guarantee of religious freedom, the Virginia legislature made bigamy and polygamy crimes punishable by death. 98 U.S. at 165. “From that day to this,” he wrote,
it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Id.

Noting that marriage is both “a sacred obligation” and “a civil contract,” and that contracts can be regulated for the benefit of society, Waite laid down the central holding of the case:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
98 U.S., at 166.

Finally, the Court considered whether the trial court had erred by instructing the jury that in reaching their verdict they should consider the consequences of polygamy to its “victims,” which the trial judge had characterized as “pure-minded women and innocent children.” Waite concluded that the instruction was proper because Congress had made polygamy illegal owing to “the evil consequences that were supposed to flow from plural marriages.” 98 U.S., at 168.

Reynolds was the first occasion for the Supreme Court to construe and apply the First Amendment’s free exercise clause. On January 8, 1979 The New York Times applauded the decision as a “great gain” in “the organized effort to crush out polygamy in Utah” and predicted that despite the difficulty of procuring evidence from persons who wished to perpetuate this “last of the twin relics of barbarism,” it cannot be doubted that “this degrading practice cannot be very long-lived.”

As it happens, the Times was wrong. Reynolds is still the law of the land, and polygamy is a criminal offense in every state, but a visit to the Times’ own web site turns up more than 100 articles about the subject published by the newspaper since 1988, many of which chronicle the continuing but thus far ineffective efforts of federal, state and local authorities to “crush out” polygamy in Utah and elsewhere. Before turning to the current status of this perpetual struggle between religion and the law, however, let us consider other “polygamy cases” that arose in the western United States after Reynolds.

Murphy v. Ramsey (1885)

Four years after the Supreme Court’s decision in Reynolds the Congress passed laws barring polygamists from seeking public office, voting, or serving on juries. In Murphy v. Ramsey,114 U.S. 15 (1885) the Court upheld a lower court’s finding that a person was a polygamist if he had a plurality of wives, even if he had not cohabited with more than one of them since the anti-bigamy law was enacted.

Davis v. Beason, (1890)

Chief Justice Waite’s opinion for the Court in Reynolds concedes that the First Amendment protects religious beliefs but permits the government to prohibit anti-social conduct, even if it is religiously motivated. It follows that the government cannot punish or discriminate against individuals who endorse or advocate on behalf of polygamy, but do not practice it. Nevertheless, in Davis v. Beason, 133 U.S. 333 (1890), the Court reached the opposite result. Davis v. Beason arose out of a statute enacted by the Territory of Idaho that required persons registering to vote to swear under oath that they were not members of any organization that “teaches, advises, counsels or encourages its members, devotees, or any other person, to commit the crime of bigamy or polygamy . . .” Samuel D. Davis, a Mormon who took the oath, was convicted of swearing a false oath and fined $500. Davis argued that the statute requiring the oath was unconstitutional because a citizen could only be punished or deprived of his rights if he engaged in a criminal act, not for his opinions. Nevertheless, the Supreme Court affirmed his conviction. Justice Field’s opinion for the Court treated the issues presented as though they were indistinguishable from the questions in Reynolds and seemed to assume that Davis’ membership in the Mormon church was sufficient to justify his conviction. He wrote:

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases.
133 U.S., at 341-42.

And,

It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.’

Id., at 345.

Unlike Reynolds, which has never been overruled, Davis v. Beason was expressly repudiated and abrogated by Romer v. Evans, 517 U.S. 620 (1996).

Polygamy and Utah’s quest for statehood.

Public antipathy toward Mormons and polygamy, coupled with aggressive enforcement of the anti-bigamy statutes by Republican administrations, thwarted Utah’s aspirations for statehood during the period before and immediately after the Reynolds decision. Between the end of the Civil War and 1890 nine states – Nebraska, Colorado, North Dakota, South Dakota, Montana, Washington, Idaho and Wyoming – were admitted to the union while the bills granting statehood to Utah were pigeonholed. In the mid-1880s Mormon leaders began negotiating with President Grover Cleveland’s administration about easing the tensions. Eventually they struck an arrangement with U.S. Solicitor General George Jenks whereby the Mormon Church would quietly support the inclusion of an anti-polygamy provision in Utah’s state constitution. The church leaders apparently realized that it was preferable to have anti-polygamy laws enforced by locally-elected officials than by federal marshals. Even though Jenks drafted the anti-polygamy provision and Utah’s voters ratified the constitution by a large majority, the statehood bill was again defeated by Congress because the Mormon leaders would not commit themselves firmly to eliminating polygamy. Meanwhile, federal enforcement of the anti-polygamy laws continued. According to official church history, between 1884 and 1893 approximately 1,000 Mormons were imprisoned for polygamy-related crimes in Utah, Arizona and Idaho.
Aided by a lobbying and public relations effort aimed at Congress and the nation’s newspapers, church and territorial leaders eventually persuaded key members of Benjamin Harrison’s administration, including Senator James G. Blaine of Maine, to adopt a more tolerant attitude toward Utah’s plea for statehood. Blaine came to Utah’s and the church’s rescue in 1890 by using his influence to block passage of the Cullom-Struble Bill, which would have confiscated all LDS church property and disenfranchised all Mormons, whether polygamous or not. Although the proposed legislation patently ran afoul of the First Amendment, the Mormon leadership feared that the Supreme Court’s decisions in the Reynolds, Murphy, Davis and other cases portended the total destruction of their church, so church president Wilford Woodruff issued a “Manifesto” declaring that the church would submit to the law of the land and use its influence to discourage its adherents from practicing plural marriage. This dramatic alteration of official church doctrine brought about a relaxation in anti-Mormon, anti-Utah sentiment, and Utah became a state on January 4, 1896. The statehood act provided that “the inhabitants of all that part of the area of the United States now constituting the Territory of Utah, as at present described, may become the State of Utah... [p]rovided, [t]hat plural or polygamous marriages are forever prohibited.” Utah, Admission as a State, ch. 138, 28 Stat. 107 (1894).

Prosecution of polygamy in the modern era.

Although Reynolds putatively resolved the question whether polygamy was protected by the First Amendment, and Utah was admitted to statehood in 1896 on the condition that polygamy was “forever prohibited,” law enforcement and the courts have continued to wrestle with polygamy issues down to the present day. In many instances these issues have arisen out of “indirect” prosecutions in which officials have eschewed use of anti-bigamy or anti-polygamy statutes in favor of criminal statutes of general application, such as statutes mandating child support and laws prohibiting child abuse, sexual exploitation of minors, and rape.
Fifty years after Utah joined the union the Supreme Court reviewed the convictions of six men, all of whom were members of a fundamentalist Mormon sect, for violation of the Mann Act, a federal statute that criminalized the transportation of women in interstate commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose.” 18 U.S.C. §§ 2421-2424. The defendants were charged with transporting their plural wives across state lines in violation of the law, which also was known as the “White Slave Trafficking Act.” The validity of their convictions turned on whether the Court deemed polygamy to be within the Act’s definition of an “immoral purpose.”

The Court upheld the defendants’ convictions by a vote of 8-1. Cleveland v. U.S., 329 U.S. 14 (1946). The majority opinion was authored by Justice William O. Douglas, who is considered today as one of the Court’s most dedicated defenders of civil liberties. Citing the Reynolds and Davis decisions, Douglas summarily dismissed polygamy as “a return to barbarism” and “a notorious example of promiscuity.” Id.,at15-16. With respect to the defendants’ First Amendment defense, the opinion said:

It is also urged that the requisite criminal intent was lacking since petitioners were motivated by a religious belief. That defense claims too much. If upheld, it would place beyond the law any act done under claim of religious sanction. But it has long been held that the fact that polygamy is supported by a religious creed affords no defense in a prosecution for bigamy. Reynolds v. United States, supra. Whether an act is immoral within the meaning of the statute is not to be determined by the accused's concepts of morality. Congress has provided the standard. The offense is complete if the accused intended to perform, and did in fact perform, the act which the statute condemns, viz., the transportation of a woman for the purpose of making her his plural wife or cohabiting with her as such.

Id.,at 20.

In July, 1953 Arizona law enforcement officials raided Short Creek, an isolated polygamous community of about 300 residents that straddled the Arizona-Utah border. The families living on the Arizona side of the border were taken into custody and the fathers were prosecuted. Following the raid Utah officials filed a neglect petition against Leonard Black, who was legally married to one woman and who openly maintained familial relations with two others, Vera Johnson and Lorna Johnson, both of whom he had “married” in extra-legal religious ceremonies. Between the three women Black had fathered 26 living children; eight of them, whose mother was Black’s “second wife” Vera Johnson, were the subject of the Utah officials’ petition.

Although the juvenile court found no evidence that any of the children were destitute or without proper sustenance, clothing or medical care, it declared that Black and Johnson were rearing the children in “an immoral environment” and, because they practiced and advocated for plural marriage, had “knowingly failed and neglected to provide for said children the proper maintenance, care, training and education contemplated and required by both law and morals.” In re Black, 283 P.2d 887, 891 (1955) (emphasis in original). Because Black and Johnson had routinely flouted the anti-polygamy law and presented polygamy to their children as a legitimate and desirable life style, the court ordered the children removed from the home and placed in the custody of the Utah Department of Public Welfare. Id., at 891-92. The Supreme Court of Utah, relying on the Supreme Court’s decisions in Reynolds and Davis, rejected the defendants’ First Amendment defenses and affirmed the trial court’s decision. The court also denigrated the sincerity of the defendants’ religious convictions, castigated them for their life style, and decried the “embarrassment” they had brought upon the State of Utah. Among other things the court said:

[The defendants] had, and for 20 years have had, a method convenient, easy, illegal and immoral; for two decades they have lived above the law and, so far as this record discloses, without prosecution of any kind except the charge against Leonard Black by the Arizona authorities immediately following the raid of July 24, 1953. They, after such ceremony as was used, if any, without license or benefit of clergy, and without calling on a civil officer authorized to perform the ceremony, proceeded to ‘multiply and replenish the earth.’ Marriage licenses were not for them; legal ceremonies were passé; they ignored every law established for the orderly behavior of decent people. Why should it be assumed that Leonard Black and Vera Johnson are the proper persons to have the custody and control of these children? Is it possible that the best interest of the children will be secured? Is it likely that these children will be saved to useful citizenship be being left with the appellants?

Id., at 908. And,

They have not only failed to teach their children that polygamy and unlawful cohabitation are against the law and morals, but they have positively taught their children that the law of plural marriage and the practice of plural marriage was right and they have encouraged their children to teach, preach and practice it. Further these appellants have actually practiced plural marriage and have unlawfully cohabitated in the presence of these children. They have gone further than to advocate the correctness of plural marriage they have provided the horrible example to these children and have subjected the children to living with the system.

Id., at 909. And,

The good name of this State and its people, committed to sustaining a high moral standard, must not be obliged to suffer because of the unsavory social life of appellants and others claiming the constitutional right under the guise of religious freedom to bring shame and embarrassment to the people of this state. It is against the public welfare to permit such conduct as appellants indulge in to justify the people of this great nation in referring to us as a people high in religious adherence but low in morals and law observance.

Id., at 910.

Although the State of Utah has relied primarily on criminal statutes other than its anti-bigamy law to prosecute polygamists in recent years, the state did attack polygamy head on in the case of Tom Green, who had the temerity to appear on national television shows with his nine “wives” between 1998 and 2001 to promote the polygamous life style, and to collaborate with the British producers of a film about polygamy that was shown at the New York International Documentary Film Festival in 2000. Perhaps reflecting the embarrassment for Utah cited by the state’s supreme court in the Black case, the state’s attorney general sought to charge Green with bigamy. Because Green had serially obtained divorces from each of the four women whom he had married legally, however, and had “married” the others in unlicensed ceremonies, the state first had to convince the courts to declare that Green was a party to a valid common law marriage with one of the women, Linda Kunz. Upon obtaining the declaration that “legalized” Green’s marriage to Kunz, the state promptly charged Green with bigamy. Green’s 2001 conviction was affirmed by the Supreme Court of Utah, which not only looked to the Reynolds and Cleveland characterizations of polygamy as immoral but also cited some public policy grounds for its decision. The court noted that prohibiting bigamy implicates the state’s interest in preventing marriage fraud and the “misuse of government benefits associated with marital status.” State v. Green, 99 P.3d 820, 830 (Utah, 2004). “Most importantly,” the court said,
Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support.

Id.

In 2005 the Utah court upheld a second conviction of Green, this time for child rape. In that case the victim was Linda Kunz, who was 13 years old when she bore Green’s child in 1986. See, State v. Green,108 P.3d 710 (Utah, 2005). A law professor who criticized Green’s bigamy conviction as “hypocritical” on the grounds that “banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse” praised the rape conviction, saying “if Green had relations with [a 13-year-old] he is a pedophile and was properly prosecuted for a sex crime – just as a person in a monogamous marriage would be prosecuted.” Jonathan Turley, “Polygamy laws expose our own hypocrisy,” USA Today, October 3, 2004.

Because of the court decree obtained by the state Green, who was freed from prison in August, 2007, is still legally married to Ms. Kunz, who refused to testify against him in the rape case.

State v. Jeffs, (2007)

Utah’s most recent prosecutorial attack on polygamy also took the form of a statutory rape charge. In November, 2007 Warren Jeffs, the leader of the 10,000-member Fundamentalist Church of Christ of Latter-Day Saints, was convicted of two counts of acting as an accomplice to rape for forcing a 14-year-old girl to “spiritually” marry her 19-year-old cousin. Jeffs, whose trial drew widespread attention from the news media, was sentenced to 10 years in prison.

Where does polygamy go from here?

The convictions of Green and Jeffs aside, Utah Attorney General Mark Shurtleff has acknowledged that polygamy presents thorny issues for law enforcement officials in Utah and elsewhere. On the one hand, many people vehemently decry the practice as morally abhorrent, dangerous to children, and demeaning to women. At the same time a significant number of men and women find plural marriages so satisfactory, or believe them to be so necessary to their faith and personal salvation, that they engage in them despite the risks of prosecution and the certainty of opprobrium on the part of mainstream society. In recognition of this cultural gulf Attorney General Shurtleff has announced that his office will treat bigamy among consenting adults like fornication and adultery, which are still crimes under Utah law. “This is a big group of people,” he told The Washington Post. “They are not going away. You can’t incarcerate them all. You can’t drive them out of the state. So what do we do about it?”

What Shurtleff has decided to do is to prosecute polygamists for violations of other laws, especially those that protect children and women. In addition to pursuing charges of rape, domestic violence, and child abuse he also has vowed to go after fraudulent use of welfare and other government benefits and to seek court orders dissolving communal property arrangements that he views as exploitive and illegal.

Meanwhile, polygamists and their advocates continue to speak out for de-criminalization and tolerance. One of their long-range goals is to persuade the Supreme Court to overrule Reynolds, but given the Court’s almost unbridled discretion concerning the cases it chooses to take, and what is known about the personal philosophies of the current justices, the constitutional status of polygamy seems almost certain to remain “settled” for the foreseeable future, even as its cultural and social standing continue to generate controversy.