The “P” Word, Again

December 10, 2003 | 17 comments
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Polygamy is in the news once again. CNN reports that an excommunicated member was banned from discussing his ideas about polygamy with his daughter in a child-custody case, and is now suing for the right to teach her about polygamy.

I am of mixed opinion as I read this article. I don’t think the lower court’s decision (banning him from discussing polygamy) is a bad outcome in this particular case, but I am concerned about the implications.

First, I recognize that courts should apply a “best interests of the child” standard in custody disputes. Teaching your daughter about polygamy, and advocating it as a way of life (though it’s not clear from the article how much he was advocating it), could reasonably be seen as going against the child’s best interests.

On the other hand, there are potential negative applications of this idea, both within the polygamy context, and within the larger church doctrine context.

As to polygamy, while the church does expel polygamists now, we have not disavowed the Doctrine and Covenents sections discussing it. It is downplayed, but the church history of polygamy is still there. Does this decision open the door for a court order prohibiting a parent from teaching a child church history, or from reading the Doctrine and Covenants? (Or, if Dave is right about “closet polygamists” in the church, from being a member at all?)

In addition, there are other church practices which might be said to be against the child’s best interests. Is telling your child to save money for a mission against their best interests? How about paying tithing? I am troubled by the idea that church participation and obedience to commandments may be constrained under a best interests analysis.

Finally, I can’t help but note that recent discussions on this site and elsewhere have focused on whether gay marriage is similar to polygamy. If gay marriage is similar to polygamy, could this decision’s logic be used in states where gay marriage is not legal, to prevent parents from advocating gay marriage to their children?

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17 Responses to The “P” Word, Again

  1. Michelle on December 10, 2003 at 8:29 pm

    This wasn’t a custody dispute – the mother just sued to prohibit the father from teaching about polygamy. Custody had already been decided as split. And as your questions implicate, the ruling could seriously quell what parents can talk to their kids about. This is a major affront to many rights — the right to free speech, the right to direct the education of your children, the right to privacy — and should not be tolerated.

  2. Cassie on December 10, 2003 at 8:55 pm

    Michelle,
    But one could ask where would this stop….. is it then in the child’s best interest for parents to teach children racism, and hate and such?

  3. Kaimi on December 10, 2003 at 9:13 pm

    I thought the decision on polygamy was part of the resolution of the custody dispute, though the article is not particularly clear.

  4. Dave on December 10, 2003 at 9:31 pm

    Yes, it sounds like this was just part of the original custody agreement, and it also sounds like Dad is honoring the proscription but fighting it in court.

    This sounds like a straight speech issue so it’s hard to see how the court can make an order of the form “you can’t speak to your daughter about X” stick. Dad could even cite Reynolds in his favor, as this is plainly belief, not practice.

    Incidentally, if Dad can’t talk about it, then neither can Mom, so she would appear to be proscribed from reading certain LDS scriptures (D&C 132, Jacob 2) to the daughter, as well as a fair amount of 19th century LDS history. And if that applies to those two parents, I suppose it should apply to every parent in Pennsylvania, divorced or not. Hmmm.

    Aren’t we glad this is a Pennsylvania case, not a Utah case?

  5. Matt Evans on December 10, 2003 at 9:35 pm

    Hi Cassie,

    Why do you compare polygamy to racism and hate mongering? Polygamy is an accepted practice in Islam — should the government tell Muslims which parts of their religion they can teach to their children?

    Should the state prohibit parents from teaching their children that homosexual behavior is sinful? that homosexuality is normal and acceptable?

    You asked the right question — where will this stop?!

  6. Nate on December 10, 2003 at 10:26 pm

    Matt: As I understand it, polygamy is permitted by Islamic law, but I don’t think that it is encouraged per se. (In Islamic there are five categories: forbiden, discouraged, indifferent, encouraged, required. I think that polygamy is indifferent.)

    On The Case: If both parents have a right to teach their daughter, why doesn’t the mother have a legitimate interest in controlling what is said to her child?

  7. brayden on December 11, 2003 at 1:34 am

    I think the issue stems from what was in the original custody agreement. I have a friend who, recently divorced from his wife, allowed her to include in the custody agreement that he would not advocate the gay lifestyle (given that he is now openly homosexual). Further, when the children are in his house, he is required to read the scriptures daily with them and have FHE on Monday nights. I don’t see that this is any different from the PA polygamy case. Custody arrangements can not only tell parents what they should not be teaching their children but also what they should be teaching them. I’m fairly certain that if my friend had fought the arrangement hard enough in the beginning, all of it could have been avoided, but now that it’s in the arrangements, he must abide. One of you lawyers can inform me if I’m wrong on this point.

  8. Sharon on December 11, 2003 at 1:57 am

    Just FYI, a judge ruled on Oct. 22 that Shepp and his ex-wife had both violated their child custody orders. She for not allowing Shepp to take Kaylynne on a vacation to Canada and he for teaching Kaylynne about polygamy. He was fined $250 at that time. He was recently fined $50 more and put on 6 months probation for not paying the original fine. The judge threatened him with jail if he doesn’t come through this next time with the money.

    I’ve briefly met Stan and listened to him speak at Sunstone. I’ve sort of watched a metamorphosis in him over the past few years. I believe he is hoping to be a test case for more than just this. I believe he’d be willing to be a test case for polygamy in general. The advantage Stan has over Tom Green in making the attempt is a cleaner background. He has even condemned marrying young girls or step-daughters as Tom Green did. Still, he is part of Tom Green’s spiritual family.

    (Strangely, philosophy and fundamentalist groups intrigue me.)

  9. Matt Evans on December 11, 2003 at 2:08 am

    Hi Brayden,

    I’ve never dealt with custody issues, but my legal intuition is that courts would be reluctant to enforce a provision that said what a parent could or couldn’t say to his children.

    The parent would have a very strong case that the contractual custody arrangements were made under duress. There aren’t many forms of duress more palpable than the threat of not seeing your kids again if you don’t say what the court wants.

    Hi Nate,
    If polygamy is permitted, doesn’t that mean they accept it? Or did you mean that even though Moslems permit polygamy, given that their stance is indifference, it’s not something parents teach their children?

  10. Dave on December 11, 2003 at 2:42 am

    I posted links to the Pennsylvania appellate decision and dissent at my weblog (click on Dave below), as well as a couple of other links on the interesting Mr. Shepp. He’s not your average trailer park polygamist, this one.

  11. Nate on December 11, 2003 at 11:33 am

    Matt: My point about Muslims is that I don’t think they are a very good analogy to 19th century Mormons or modern Mormon fundamentalists. Mormon polygamists taught that polygamy was affirmatively commanded by God and that one’s willingness to enter into polygamy was a test of one’s obedience to him. As the persecution against polygamy intensified, so did Mormon teachings, and BY, Heber C. Kimball, John Taylor, etc. ended up strenuously arguing that polygamy was superior to monogamy.

    I don’t think that there is any similar theological emphasis on polygamy in Islam. It is something that people can do if they want. I think that some interpretations of Shar’ia even put it in the discouraged camp, kind of like drinking Diet Coke, perhaps. Anyway, my understanding is that isn’t conceptualized as a divine commandment, a mark of special faithfulness, or anything like that.

    Of course, I could be wrong on this. I am speaking on the basis of my vast experience of one class on Islamic Law at HLS. Someone correct me if they have good authority that I am mistaken.

  12. Cassie on December 11, 2003 at 12:39 pm

    “Why do you compare polygamy to racism and hate mongering?”
    I was simply trying to find something else that is considered “not in the child’s best interest” I’m sure there are many things that one could argue ie. homosexuality, masturbating, pre-marital sex I just picked the first thing that came to mind. I apologize if it was a little extreme. My main point was, like you also said, where will this stop?

  13. Michelle on December 11, 2003 at 1:34 pm

    Good job Dave on finding the links. Yes – it appears that the original custody order included the prohibition on polygamous teachings. I wonder, though, why he didn’t fight it back in 2002. I think the custody order was different than the agreements Brayden is talking about in that Shepp didn’t appear to agree to the prohibition — it was a court order.

    I agree with the dissent in the PA Superior Court — the trial court found that the teachings didn’t harm the child — and therefore weren’t against the “best interests” of the child. I think the important distinction here is between teaching it and practicing it. Polygamy in theory is arguably still part of the LDS church – not just the “fundamentalist” church — and it’s for sure part of our history. I’m sure many families in the church teach about polygamy — including the current prohibition, legal and religious, against it. Does this case draw the line sufficiently between teaching/advocating and just teaching? It doesn’t. The custody order prohibited Shepp from even talking about polygamy.

  14. Admin on June 23, 2004 at 1:23 pm

    All:

    We can’t have personal accusations and allegations relating to ongoing litigation being posted here. Such comments have been removed.

  15. lyle on June 23, 2004 at 1:34 pm

    How are my comments re: discomfort over the precise comments you deleted, grounds for deletion? Perhaps they were unnecessary since you deleted them?

  16. stanshepp on June 24, 2004 at 9:32 am

    Thank you for deleting ALL of the comments. (Even though comments by one side were allowed to remain for 6 months.)

    This is a custody dispute – if you have never been involved in one, there are generally major disagreements in the “facts” involved. To allow comments from one side only would certainly be wrong.

    Again, I appreciate your removal of all of the comments. I am afraid that this dispute is not even close to being over.

  17. stanshepp on June 24, 2004 at 9:35 am

    If anyone wants an update on this case – the events of the current Superior Court Oral Arguements, etc. – or if you have other questions, please feel free to Email me privately.

    And remember that whatever I tell you will still only be one side – only my perspective.

    Thanks!

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