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American Lawbreaking

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from: Tim Wu

What Is a Criminal?

Posted Wednesday, Oct. 17, 2007, at 7:19 AM ET

Click here to launch Slate V's The Copyright Problem.This is a five-part series about the laws we are allowed to break in America and why. Tim Wu was online on Oct. 18 to chat with readers about this article. Read the transcript.

What group lives in the greatest defiance of American law? Criminal organizations like the Mafia or inner-city gangs come to mind. But if you account for volume and time, otherwise peaceful religious groups like the Amish or Mormon fundamentalists are certainly contenders.

Illustration by Alex Eben Meyer. Click image to expand.

The Amish are, as reputed, quiet people. But they have also consistently dodged many of the U.S. laws scrupulously followed by other Americans, including labor, Social Security, and education laws. Meanwhile, Mormon fundamentalists—splinter groups from the main church—live outside the law, in some instances violating bigamy, welfare, and sometimes even statutory-rape laws. As we'll see, the fate of these two groups before the legal system after 50 years of struggle with the state is very different. The Amish have "won" in the sense that, for most of the issues they care about, American law has either changed or been left unenforced. Mormon fundamentalists, meanwhile, have settled for zoning: Polygamists are unmolested, provided they remain with certain geographic limits and stay out of public view. All this shows how America in this century has used tolerance of lawbreaking to give more room to groups that want to live differently.

The Amish are a splinter group of Swiss Anabaptists—Christian reformists who emerged during the 1500s. They, like other Anabaptists, sought a return to the original teachings of Jesus Christ, including the tough parts—loving your enemies, forgoing violence, and resisting the accumulation of material treasures. Famously, the Amish today also reject most post-1860s technologies, from electricity to MySpace.com. Less well known is that the Amish also refuse to participate in any form of justice based in retribution, formally living by Jesus' instruction to "turn the other cheek."

Since migrating to America, the history of the Amish has been peaceful. But not law-abiding. While they will "give to Caesar the things that are Caesar's," when push comes to shove the Amish put the laws of heaven before those of man. While never violent, they have historically refused to obey many American laws, including education, zoning, child labor, Social Security, and conscription laws, among others.

The Amish have long refused to pay Social Security taxes, which they view as a form of compelled insurance; they also do not accept the Social Security payments. They will not educate their children beyond eighth grade, regardless of mandatory education laws. Teenagers are expected to work in fields and shops, whatever the child-labor laws may say. Some, including investigative journalist Nadya Labi, document allegations that sexual abuse is widespread in Amish communities and that state intervention is minimal. It all adds up to a degree of widespread tolerated lawbreaking that would likely lead other Americans to prison.

The Mormon fundamentalists splintered from the main Church Jesus Christ of Latter-day Saints in the 1920s, after the main church renounced "plural marriage" or polygamy. The capitulation of the main church was the consequence of a long and aggressive federal campaign against the Mormons in Utah that, much like the war on slavery, at some points involved the federal army. Thousands of Mormons were arrested for polygamy, and Mormons were effectively banned from holding government positions. Under the weight of all that federal coercion, the Mormon church renounced polygamy in 1890, and by the 1910s it had begun excommunicating active practitioners of plural marriage.

The capitulation of the main Mormon church led to the founding of fundamentalist groups that, like the Amish, disagreed with what they saw as deviations from original doctrine. Most notably, that means some fundamentalist Mormon groups continue to believe in plural marriage as holy. It also can mean adherence to other doctrines abandoned by the main church, including the law of consecration, which demands dedication of property to the church. Living by the original rules, the fundamentalists moved to remote areas of Utah and Arizona, where they remain today, practicing plural marriage and, often, communal property systems.

Should lawbreaking by the Amish and fundamentalist Mormons be tolerated? During the 20th century, federal and state officials often answered "no" for both groups. Thus, in the 1950s, the IRS began trying to collect Social Security payments from the Amish. In one famous incident in 1961, three IRS agents seized the plow horses of an Amish farmer named Valentine Byler, auctioned them off, paid off his taxes, and then sent him his $37.89 in change. Later, in the 1960s, Amish parents were arrested, fined, and imprisoned for taking their children out of schools, until in 1972 the Supreme Court declared leaving school at age 13 to be protected as the free exercise of religion.

But today, relations between the Amish and the state are generally stable and low-key. There remain some laws with which state and federal officials still demand full compliance, largely concerning threats to the outside community. For example, states have insisted upon—and largely succeeded in—forcing the Amish to put reflectors (if not lights) on their horse-drawn carriages to prevent traffic accidents.

But those laws whose violation hold consequences for the Amish alone are today by and large left unenforced. In some instances, this is because the government and the Amish have explicitly settled their differences by working out special compromises. (The Amish refusal to pay Social Security has, since 1988, been legalized pursuant to a special congressional exemption. The Amish also won an exemption from child labor laws in the mid-2000s.) But in other circumstances, local police and law enforcement officials have simply given up. For example, in the 1980s, Pennsylvania began to insist that Amish teachers have at least three years of high-school education and state certification. The Amish didn't comply, and eventually the state folded.

The story of the Mormon fundamentalists is more violent, and much less settled. In the 1930s and '40s, enforcement against the splinter groups was sporadic. That changed in 1953, when Arizona Gov. J. Howard Pyle announced what he called a "police action against insurrection." He directed more than 100 police officers to raid and arrest an entire polygamous settlement in what was then the town of Short Creek, Ariz. The settlement, said Pyle, was "dedicated to the production of white slaves." Officers arrested every adult and took more than 200 children into custody to send a message to all such groups.

The governor probably expected a victory parade. But to his undoubted surprise, the raid led to a popular backlash, premised on the injustice of seizing children and removing them from their families. Photos of the community, published in LIFE magazine, made the group look like innocent victims. The 1953 raid in fact became a turning point in the opposite direction from that which was intended. After Short Creek, state officials never again attempted the kinds of mass arrests that had forced the main church into submission in the 19th century. Instead, over the last 50 years, enforcement of polygamy laws has been rare in Utah and Arizona—at least when the groups stay discreet.

In 1989, a Mormon fundamentalist named Tom Green went on the Sally Jessy Raphael show to discuss and defend his polygamous lifestyle. He went from there to Queen Latifah, Jerry Springer, and finally to prison, when in 2001 he was arrested, tried, and found guilty of bigamy, criminal nonsupport, and statutory rape. Likewise, in 2005, Warren Jeffs came to national attention as the grandstanding leader of a fundamentalist group in Colorado City, Ariz., where he called himself a prophet and reportedly married more than 70 women, including many of his father's ex-wives. Jeffs was arrested in August 2006 and charged with "accomplice rape," for facilitating the marriage of underage girls. These kinds of enforcement actions are the current face of law enforcement against Mormon fundamentalists. They are targeted only at open or particularly flagrant polygamists who violate other laws as well. And they are directed primarily at the abuse of minors instead of plural marriage itself.

That's why at least one polygamous group celebrated the arrest of Warren Jeffs as a relief for "normal polygamists." Mark Henkel, founder of the national "Christian polygamy" organization TruthBearer.org, argued in a press release that " 'normal' pro-polygamists should no longer be libelously smeared by any implied association with Jeffs and his abhorrent variant of Mormon polygamy." These enforcement actions are thus a form of informal zoning: Polygamy itself will not be punished, so long as it's discreet, but abusive or public polygamy crosses the line. So only a tiny fraction of polygamists are punished; for while estimates may be unreliable, most seem to agree that there are more than 30,000 people living in fundamentalist communities of one kind or another.

In these stories of the Amish and fundamentalist Mormons, we see a form of tolerated lawbreaking different from what we have seen before. What the Amish and the fundamentalist Mormons want is not freedom from all laws. Rather, they want, as a group, to live by laws different than those that govern the rest of the state or nation. They want group rights against the nation's laws.

Such group rights are a challenge for a legal system centered on the individual. The U.S. legal and political systems, when dealing with group rights, do so only awkwardly. The states, as political units, are meant to stand in for differing preferences of the people who live there. But states are rarely good proxies for tightknit religious communities like the Amish. States are just too big and roughly drawn—even a small state like Rhode Island includes so many different groups it cannot reflect a true political community in a coherent way.

Sometimes (though more rarely in recent decades) the Supreme Court creates a group right by giving a religious or other group the right, under the First Amendment, to ignore a law that others must follow. In 1972, the court thus gave the Amish an exception to laws mandating high-school education in Yoder v. Wisconsin. But such exceptions are unpredictable and seem to depend on the popularity of the group in question. In 1878, when the Mormons claimed a group right to plural marriage, the Supreme Court said "no dice." On the other hand, the Boy Scouts of America, the Supreme Court held in 2000, have the right to fire Scoutmasters for being gay, despite state anti-discrimination laws. In contrast, when Oregon police arrested men using peyote as part of a Native American religious ceremony, the Supreme Court upheld the conviction, finding the First Amendment no defense to a law of "general applicability." In short, the Amish and the Boy Scouts were given a group right to break the law that the Mormons and Indians were not. The First Amendment is a fickle source of group rights.

These formal legal mechanisms can create important legal space for some groups who want to live differently. But they don't quite give the Amish everything they want and they certainly don't work for the Mormon fundamentalists. Consequently, tolerance of lawbreaking creates a more radical form of deviation from uniform national rules. It is by nature messy, awkward, and informal. But it is the de facto bargain we've reached, creating a legal system that allows the Amish to be not just different in the ways Texans are, but different like, well, the Amish; and it's this system that lets the Mormon fundamentalists exist at all.

There is a conspicuous difference in our tolerance of Amish and fundamentalist Mormon lawbreaking. The Amish have successfully avoided the law—they do not evade it. Their practices, or most of them, are open, and they live in peace. But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a "don't ask, don't tell" state of legal limbo that could break open at any time. They are outside the law in a different way.

That strangeness leads some, like Minnesota law professor Shayna Sigman, to argue that polygamy ought to be decriminalized, so as better to focus on the abuse of children in fundamentalist Mormon communities. Yet the chances of that happening seem remote at best. It might make sense, in an ideal legal system, to have a system of group rights that makes it clear what can be tolerated and what cannot. It might be better, if that's what we really want, to clearly zone practices that the majority finds perverse—you're free to do that behind closed doors, but don't let anyone know about it. Yet the hypocrisy, strangeness, and complexity of such a law, and the kind of political conversation necessary to sustain it, seem impossible to imagine in the United States. That's why tolerance of lawbreaking is the way this nation deals with some of its most sensitive questions of religion, marriage, and group difference.

Tomorrow: How immigration laws might have been taken seriously.

jurisprudence
entries
123456
from: Tim Wu

What Is a Criminal?

Posted Wednesday, Oct. 17, 2007, at 7:19 AM ET
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Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?
Illustrations by Alex Eben Meyer.
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