Tuesday, June 3, 2014

Cushman on Intestate Succession and Polygamous Mormons

Barry Cushman, Notre Dame Law School, has published from his backlist Intestate Succession in a Polygamous Society, published in the Connecticut Law Review 23 (1991).  Here is the abstract:
The pursuit of polygamous unions by members of the Church of Jesus Christ of Latter-Day Saints in nineteenth-century Utah posed challenges for the law of the family unique in the annals of American legal history. The exotic familial relationships generated by plural marriages created novel and peculiar problems for the traditional law of intestacy. Mormon leaders, in an effort to avoid these problems, urged their polygamous brethren to make wills. Many polygamists, however, either neglected to plan their estates or were actively opposed to doing so. Mormon legislators accordingly sought to craft statutory schemes that would accommodate the peculiar inheritance needs of polygamous families. These statutes ultimately became a point of contention between the Utah assembly and Congress; between the Utah assembly and the Utah courts; and, not surprisingly, among the Mormons themselves.

This dispute between Congress and the Utah legislative assembly was ancillary to the larger dispute between those two bodies over polygamy in general. The federal government had never looked favorably on plural marriage. In 1862, Congress made polygamy a felony in the territories, while the Justice Department initiated vigorous prosecution of offenders. In 1882, Congress disfranchised and disqualified from public office all polygamists and their wives. A congressional act of 1887 revoked the Mormon Church's corporate charter, confiscated much of the Church's property, and disfranchised all Utah women. Additionally, Utah was repeatedly denied statehood status due to the Church's refusal to repudiate the doctrine of plural marriage.

During Utah's territorial period, the great majority of its judges were federally appointed. Given the federal government's devotion to the eradication of polygamy, it is not surprising that many of the judges appointed to the Utah bench were hostile to plural marriage. This hostility was occasionally manifested in cases involving the estates of intestate polygamists. Ironically, when Utah finally achieved statehood, the plural families of polygamist decedents fared no better under an elective state judiciary than they had under its territorial predecessor.

But the Utah courts would never have had occasion to hear these cases had they not been litigated among the Mormons themselves. For much of the territorial period, such disputes had been handled by the Church's system of ecclesiastical courts. By 1890, however, Mormon society had undergone transformations that had diminished the viability of the theocratic commonwealth and of polygamy as an institution. The history of the law of intestacy in Utah during this period serves as a small illustration of the demise of a way of life.

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