Texas bigamy: Through the Looking Glass
by Doran Williams
Evidence suggests that the Texas legislature enacted its bigamy statute, Texas Penal Code Section 25.01, in a special session held inside Alice in Wonderlands Looking Glass.
To the untrained eye, it may seem that the statute is clear and concise. In fact, as illustrated by this initial survey, it is quite the opposite. It is a monument to the illogical absurdity that results when a state attempts to achieve an unconstitutional end - the eradication of a religion - through an otherwise constitutional tool like statute.
For this post, Ive rearranged the statute** a bit - inserting my own A through D to facilitate discussion. At this point, I dont address marriages to non-adults and I assume that none of the women in these examples is married to any person other than the cad I will be using as an example of a bigamous dummy.
Section 25.01 says in part:
An individual commits an offense if
he is legally married and he
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, (B) under circumstances that would, but for the actors prior marriage, constitute a marriage
or
(C) lives with a person other than his spouse in this state under the appearance of being married
.(D) For purposes of this section, under the appearance of being married means holding out that the parties are married with cohabitation and an intent to be married by either party.
Being married is the linchpin under (A) above. Obviously, by the plain language of the statute, an unmarried man can have as many women bear him children as can tolerate him, he can live with them communally or visit them at their homes, and he does not commit bigamy for so long as he does not hold out [see (D)] that he is married to any of them. That means he does not refer to them as his wives, nor they to him as their husband. It means none of them can have an intent that they be married in the present sense, not at some future time.
Being married is also the linchpin under (C). Here, the man is, let us assume, legally, formally married pursuant to license. He lives with another woman, IN TEXAS, and holds out, by the actions described in the first example above, that she is his wife. Dummy. He commits bigamy is he does that. If he does not do the holding out, he can live with as many other women and have children by them till he drops dead, and he does not commit bigamy. Notice also, that he could be married and live with his wife in the Texas section of Texarkana, and live in the Arkansas section of that city with another woman under the appearance of being married, and not be in violation of the Texas bigamy statute.
The language in (B) will produce loads of litigation, billable hours for attorneys, persecution, and reams of judicial opinions. What are the circumstances that would, but for the [scoundrel's/cad's/sex fiend's] prior marriage, constitute a marriage? Here are two that come easily to mind: He gets married to a second wife pursuant to a marriage license that is fraudulently or illegally obtained; or, he enters into a second, informal marriage and/or registers a declaration of informal marriage with the County Clerk pursuant to the Texas Family Code.
How about going through a marriage ceremony with someone not yet 16 years old (post Sept. 05)? Nope, that kind of marriage is void.
How about going through a marriage ceremony with an adult, conducted by a person
who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony
but without a marriage license?
There is at least one civil case opinion out of the 3rd Court of Appeals in which the Court said that the statutes which regulate the mode of entering into a marriage relationship, including the requirement of a license, are merely directory. That is to say, even without a license, the marriage is valid anyway, unless it is declared void by some other statute. Thus, in the hypothetical I set out above the second marriage would be valid except for the existence of the first, and the dummy has committed bigamy. On the other hand, according to the language of the Court in that case, he would not commit bigamy if he attempted to marry someone under the age of 16, because such marriages are void.
What if the officer of the religious organization has not been authorized by that organization to conduct a marriage ceremony? No help to the dummy, as the Family code says the validity of the marriage is not affected by lack of authority.
What if the religious organization means something by the word marriage and by the marriage ceremony that is not contemplated by the Family Code and the Penal Code? This is the really difficult question. It will probably be THE difficult issue in some of the bigamy prosecutions, if any, of FLDS people. A decent answer to this question will require a trial court and attorneys to create an exhaustive record of just what marriage means historically and in contemporary Texas. It will also require the same kind of record to be made concerning a defendants understanding of the words, and his religious organizations understanding of the words.
If marriage does not mean to the religious organization and its members the kind of immediate joining together physically, as well as spiritually and emotionally, for the purpose of creating a family, in the way the words and ceremony seem to mean to most main-stream American religions, then maybe bigamy is not present.
What if the religious organization never uses the terms marriage, spouse, husband, and wife? Heres a hypothetical to test that question:
Imagine parties to a ceremony as just a Joining Together and to each other as Pumpkins, not as spouses or husband and wife. They dont purport to be married, - whatever this means and they dont hold themselves out to be husband and wife, or spouses. Rather, they hold themselves out to be Joined Pumpkins. And they dont intend to start making babies immediately or even to set up housekeeping together. They may have in mind doing these things later on, but not right now.
The statutes, after all, speak in terms of marrying, and of spouses. If Pumpkin people do not use the language of the Code, because the Code does not contemplate or address the consequences of the Joining Ceremony, or even indicate any understanding of the Joining Ceremony, then to find a Pumpkin Person guilty of bigamy may imply a violation of due process of law.
Prosecution of the Pumpkin people could be extremely difficult if they use certain words to mean something the State of Texas does not mean by those words. Indeed, Texas prosecutors may have to cite Humpty Dumpty:
When I use a word, it means just what I chose it to mean - neither more nor less.
The issue will be made difficult in part because the State has not defined in detail the word marriage, much less purporting to be married. That is not surprising, since marriage undoubtedly means so many different things to so many Texans that a detailed definition cannot be formulated.
But the difficulty of all such cases is that they are so fact dependent: Some may be easier to decipher than others. I suspect that very soon the prosecution of the FLDS people for bigamy will get to be so legally technical that a lot of people will not understand what is going on.
Those who want to keep up with what really is happening not just with the garbled reports of pundits - will need to pay close attention as Texas courts and prosecutors plunge headlong through the looking glass in pursuit of Pumpkins. Why they do it is anyones guess.
Kurt Schulzke contributed to this post.
* * *
* Adapted from Through the Looking Glass, by Lewis Carroll.
** Full text of the bigamy statute appears below.
Tex. Penal Code § 25.01 (2007)
§ 25.01. Bigamy
(a) An individual commits an offense if:
(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actors prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:
(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the persons prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.
(b) For purposes of this section, under the appearance of being married means holding out that the parties are married with cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)(1) that the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actors prior marriage was void or had been dissolved by death, divorce, or annulment. For purposes of this subsection, an actors belief is reasonable if the belief is substantiated by a certified copy of a death certificate or other signed document issued by a court.
(d) For the purposes of this section, the lawful wife or husband of the actor may testify both for or against the actor concerning proof of the original marriage.
(e) An offense under this section is a felony of the third degree, except that if at the time of the commission of the offense, the person whom the actor marries or purports to marry or with whom the actor lives under the appearance of being married is:
(1) 16 years of age or older, the offense is a felony of the second degree; or
(2) younger than 16 years of age, the offense is a felony of the first degree.
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