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Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

Separate and Unequal: The Women and Children of Polygamy

APPENDIX A: U.S. JURISPRUDENCE ON RELIGION AND POLYGAMY

Freedom of Religion

Examples of cases following the strict scrutiny test:

Sherbert v. Verner, 374 U.S. 398 (1963): The employer discharged a Seventh-Day Adventist, because she refused to work on Saturdays. She applied for state unemployment benefits, because her conscientious scruples against Saturday work prevented her from obtaining other employment. The United States Supreme Court held that the denial of compensation benefits constituted a burden on the free exercise of religion. Further, although the state argued that there would be fraudulent religious objections to Saturday work, which would dilute the state compensation fund and interfere with employers trying to schedule Saturday work, the Supreme Court held that potential abuse did not justify the abridgment of the woman's freedom of religion. The court noted that "only the gravest abuses, endangering paramount interests, give occasion for permissible limitation" (p. 406).

People v. Woody, 61 Cal. 2d 716 (1964): Defendants had been convicted under a state statute of illegal possession of peyote, which had been used by Navajo Indians as a sacramental symbol in their religious ceremonies. The court concluded that the statute infringed on the observance of religion. The state asserted that there was a compelling reason for the prohibition of peyote: it had a deleterious effect on the Navajo community, and allowing this exemption would make it difficult to enforce state narcotics law, as people would fraudulently claim religious use of peyote. The court held that the state interests did not outweigh the defendant's interest in religious freedom and ordered that the Navajo community be exempted from the narcotics law.

Wisconsin v. Yoder et al., 406 U.S. 205 (1972): Members of an Amish community were convicted of violating Wisconsin's compulsory school attendance law, by declining to send their children to school after they had graduated from Grade 8. Evidence showed that the Amish truly believed that high school attendance was contrary to the Amish religion and way of life and that they would endanger their salvation and that of their children if they complied with the law. The Amish also provided for informal vocational education after Grade 8. The U.S. Supreme Court held that the Amish had demonstrated the sincerity of their religious beliefs. Further, the State's interest in universal education was not absolute and was subject to the Amish's claim to free exercise of religion. The court held that the Amish had provided sufficient evidence that accommodating their religion by allowing their children to leave school at Grade 8 would not impair the physical or mental health of their children, nor impair their ability to be responsible citizens, nor detract from the welfare of society in any material way.¹⁶⁶

Examples of cases following the facially neutral test:

Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990): The State of Oregon prohibited all use of peyote, including use by Native Americans. A person who was fired from her job for ingesting peyote was thereby ineligible for unemployment insurance. Justice Scalia noted that this was a case where a generally applicable law that was not aimed at religious practice had a negative impact on religious practice. He went on to state that cases where generally applicable law was found to violate the First Amendment involved a second constitutional protection. The test in Sherbert was not applicable to generally applied government regulations. Thus, the law was not unconstitutional. Justice Scalia was soundly criticized for this judgment and the federal congress passed the Religious Freedom Restoration Act in 1993, in an attempt to restore Sherbert as the applicable test (Sealing 2001).

Church of the Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520 (1993): The Santeria practice of animal sacrifice was at issue. The City adopted three ordinances clearly aimed at prohibiting animal sacrifice, and the Church argued that they violated the Church's rights under the free exercise clause. Justice Kennedy cited Smith for the proposition that a law that is neutral and of general application need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice. In this case, the laws were not neutral, because they were aimed at suppressing the central element of Santeria worship. Indeed, the ordinances allowed almost all animal killings except those for religious purposes. Kosher slaughter by Jews was also protected. Thus, the law was neither neutral nor of general application and had to be subjected to "the most rigorous of scrutiny."¹⁶⁷ The government had not demonstrated its interests were compelling and the ordinances were invalidated.

U.S. Cases Dealing with Polygamy

Reynolds v. U.S., 98 U.S. 145 (1878): The Supreme Court of United States upheld a congressional criminal bigamy statute that was challenged under the free exercise clause. In upholding the statute, the Court justified its decision based on "public morality." The Court first held that civilized cultures had frowned upon polygamy and England had consistently treated polygamy as an offence. Further, the practice of polygamy would undermine the "sacred obligation of marriage" as an institution and lead to societies grounded in despotism.¹⁶⁸ To allow a person to practise polygamy would permit people to derogate from the established regulation of marriage and would create an unstable society that valued religion over the "law of the land."¹⁶⁹ The Court continued by comparing consensual polygamy to ritual human sacrifice and Suttee (suicide).¹⁷⁰ This decision has been criticized for being the result of prejudice against Mormons at that time in United States history (Vazquez 2001-2002).

Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. U.S.,136 U.S. 1 (1890): The Congress passed the Morrill Act of 1862, which made polygamy a criminal offence and revoked the Mormon Church's organizational charter and confiscated all of the Church's real estate holdings in excess of $50,000. In a proviso, the congressional majority noted that the sole purpose of this provision was to end the Church's practice of polygamy. In 1887, the government passed the Edmunds-Tucker Act, which called for all real properties of the Church held in violation of the Morrill Act to be confiscated and sold to pay for public schooling. The statute also barred the church from using trust accounts to protect its property. The majority opinion affirmed the previous findings on polygamy, holding that it was not a religious practice, but rather "being against the enlightened sentiment of mankind." ¹⁷¹

Cleveland v. U.S., 329 U.S. 14 (1946), reh'g denied, 329 U.S. 830, reh'g denied 329 U.S. 831 (1946): The Supreme Court reviewed the convictions of six men for transporting their plural wives across state lines. The Mann Act¹⁷² criminalized the use of interstate commerce for the transport of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." The Court concluded that the defendants' conduct fell within "immoral purpose." Justice Douglas described polygamy as "in a measure, a return to barbarism."¹⁷³ The establishment and maintenance of a polygamous household is "a notorious example of promiscuity."¹⁷⁴

Potter v. Murray City, 585 F. Supp. 1126 (D. Utah 1984), aff'd, 760 F.2d 1065 (10^th Cir. 1985): An FLDS police officer was fired, because his employer became aware of his polygamous lifestyle. Potter filed suit, seeking reinstatement and back pay. Both courts sided with the city, holding that the requirement of monogamy met the compelling state interest test, declaring it to be "inextricably woven into the fabric of our society" and the "bedrock upon which our culture is built."¹⁷⁵