KEN DRIGGS is a criminal lawyer in Tallahassee, Florida. He holds an LLM in Legal HIstory fro the University of Wisconsin Law School where the topic of his thesis was the legal rights of polygamous parents in Utah.

THE UTAH Supreme Court on 27 March 1991 ruled that polygamists could be considered by state juvenile courts as candidates to adopt children. The 3-2 decision was further evidence of increasingly tolerant judicial attitudes toward fundamentalist Mormons who continue to practice religiously motivated polygamy.

The sharply divided court made a point not to extend special protections to polygamy, but did afford polygamists the same standing as other litigants in adoption proceedings. Without mentioning it by name, they seemed to reverse a 1955 decision, In Re Black, which held that polygamists were social outcasts with no rights to their own children.

The case In the Matter of the Adoption of W. A. T., et al, involved a Hildale, Utah, couple who sought to adopt the children of another of the husband's plural wives who had died of cancer.

Vaughn and Sharane Fischer were legally married in 1964. A second plural wife also lived in the home and had children by Vaughn. In 1987 a third wife with six children by a previous polygamous marriage entered the home. Proceedings for Vaughn Fischer to adopt the third wife's children began in 1987 while she was still alive and appeared before the court to voice her approval. With her death from cancer, her relatives intervened and asked that the adoption petition be thrown out because of Fischer's freely acknowledged polygamy. The Fifth District Juvenile Court in Washington County agreed, largely because of In Re Black, and dismissed the petition.

On appeal to the Utah Supreme Court, the case gained national attention. It was covered extensively by the New York Times, the Washington Post, and the Ladies' Home Journal. CNN broadcasted the oral arguments live. The Utah chapter of the American Civil Liberties Union (ACLU) filed briefs on behalf of the Fischers and experienced considerable internal division as a result. A child advocacy group, Utah Children, weighed in against the Fischers. The Fischers were represented by St. George attorneys Steve Snow and Dave Nuffer, both active members of the LDS church.

The case was argued in the Utah Supreme Court in June 1989. Utah newspapers described the oral argument as both bitter and divisive. At one point, counsel for Utah Children was chastised by one justice for her "emotional overtones."

The 3-2 ruling came 21 months after the argument. The six children involved stayed in the Fischer home pending the appeal. Two are now adults and have elected to remain; a third is approaching majority.

The Supreme Court's decision now remands the matter back to the juvenile court for an evidentiary hearing as to whether, in the words of the governing Utah statute, "the interests of the child will be promoted by the adoption." At this point, neither side has indicated a desire to appeal the matter into the federal courts. The evidentiary hearing is expected late this summer or early in the fall. Appeals of that decision seem certain.

In April, the national ACLU adopted a new position urging that government not involve itself in unorthodox marital arrangements among consenting adults, clearing the way for the organization's help in expected further appeals. The ACLU has not endorsed polygamy, nor has it addressed the matter of underaged participants in polygamous marriages. Opponents of the Fischer adoptions alleged that child brides were the norm in fundamentalist Mormon marriages.

In a carefully-worded opinion, Justice Christine Durham rejected In Re Black's blanket denial of polygamists' civil rights. "The fact that our constitution requires the state to prohibit polygamy does not necessarily mean that the state must deny any or all civil rights and privileges to polygamists." Justice Durham noted that although polygamy was a crime in Utah, so was adultery, fornication, nonsupport of children, surrogate parenthood contracts, and unauthorized abortions. "It is not the role of the courts to make threshold exclusions dismissing without consideration, for example, the adoption petitions of all convicted felons, all persons engaging in fornication or adultery, or other persons engaged in illegal activities."

Justice Durham went on to pose a series of hypothetical questions to illustrate why a blanket rule prohibiting adoptions by polygamists would not be appropriate: "What if there were no willing relatives or other suitable adopters and dismissing a petition meant foster placement and separating siblings? What if the practicing polygamists seeking to adopt were unwilling to abandon their commitment to the lifestyle but strongly opposed promoting it to their children? What if the child to be adopted were so severely physically or mentally handicapped that he or she could never participate in plural marriage but facts indicated that a polygamous family could provide optimal specialized care?"

Justice Michael D. Zimmerman joined the Durham opinion.

Justice I. Daniel Stewart concurred in the result, but wrote a separate, more cautious opinion.

"As I view the matter, the issue is not whether polygamous adults who wish to adopt have a right to a hearing with respect to an adoption petition; rather, it is whether the children who are subject to adoption have a right to have as adoptive parents those who may be the only people who can give the children the reasonable nurture, care, guidance, and love as a foundation for realizing their highest potential as human beings," Justice Stewart wrote.

He went on to observe that "polygamy is more than just an `alternative lifestyle,' as that term is sometimes used in describing a manner of living that is unorthodox and outside the accepted norms and established customs of society. Having said that, I add that I do not subscribe to a view that condemns polygamists as being depraved and debased. Much evidence suggests that polygamists, as they are generally known in this state, are honest and hard working."

Justice Stewart is an obvious and important swing vote, and he will be courted by both sides in future appeals.

Associate Chief Justice Richard Howe wrote a strong dissent, in which he was joined by Chief Justice Gordon Hall. They agreed that Utah's constitutional and criminal statute prohibition on polygamy, religious or otherwise, supported the decision of the trial court. They found that the appealed ruling, that "the petitioners' teaching and practicing polygamy in their home outweighed the factors which ran in favor of the petitioners," should have been affirmed.

Justice Howe went on to write that "it would be difficult to conceive of a factor which works more against the `interests of the child[ren]' than ongoing criminal conduct by the adoptive parents in the home where the children are being nurtured and raised."

Michele Parish, Utah ACLU director, told the Salt Lake Tribune after the decision, "We can't just protect the religions we like, the ones we agree with and get along with. Freedom of religion is for everyone." She said the state's prohibition on polygamy violated the free exercise of religion, and threatened rights to privacy and equal protection.

Vaughn Fischer told the Tribune he was "very pleased" with the decision and saw "the Lord's hand" in it.

Utah Children executive director Roz McGee saw the decision as dangerous. She told the Tribune, "We feel the way women, female children and wives are treated in fundamentalism, that many of those practices are not in the best interest of healthy children. There are young women being forced into early marriages and men being driven out because there aren't enough women for them to marry."

The Salt Lake Tribune editorialized on the decision, writing that "what the high court really has upheld . . . is basic fairness and due process."

Vaughn Fischer is himself an adopted child of a plural marriage. He moved to Hildale in 1950 and has established himself as one of its leading citizens. His building contracting business thrives and federal income tax returns filed with the court show him to have a substantial income, especially by Southern Utah standards. At the time of the petition for adoption he had two surviving wives and fifteen children, counting the six stepchildren, in his sprawling home. Both wives have added children to the home and are full-time mothers. Vaughn Fischer and his family are devout fundamentalist Mormons affiliated with the Colorado City, Arizona-based group now headed by Rulon Jeffs, a successor to Leroy S. Johnson, who died in 1986. Before Brenda Thorton, Fischer's third wife, died, the adoption proceedings were initiated with her new husband. The natural father, now deaf and in his mid-60s, appeared in district court to voice his approval of the adoption. A Utah Department of Social Services home study avoided commnt on the family structure but otherwise characterized the proposed adoptees as an excellent placement.

Opposing the adoption are Brenda Thornton's father, Calvin Johanson of Salem, Oregon, and her two half-sisters, Janet Johanson, also of Salem, and Pat Johanson, of Washington, D.C. Both sisters are former fundamentalist Mormons who now express bitter feelings about their experience with it. Pat Johanson traveled to Hildale to be with her sister during the final days of her struggle with cancer. She now asserts that her sister changed her mind and did not want the children raised in the Fischer home, but no one else can verify this. The children's natural father continues to support the adoption.

Colorado City and Hildale are modern incorporations of the historic community of Short Creek, located on the Utah-Arizona border just off Arizona Route 389, about 45 miles from St. George. The area was first settled by a few cattle ranchers in 1913. Fundamentalist Mormons began to gather there in the early 1930s, among them members of the Johnson family who had previously lived at Lee's Ferry. This led to mass excommunications by the LDS church in 1934 and 1935 when the fundamentalists came out in the open.

The first twentieth-century convictions for polygamy involved Short Creek residents in 1935. Other prosecutions followed, including the massive Arizona raid of 1953 when almost the entire town was taken into custody. Utah authorities also became involved in that action and the case In Re Black was one of the results.

The Arizona efforts to seize children dragged on for almost two years at enormous expense to both sides. They finally collapsed for lack of public support and a failure to allow counsel's participation on behalf of the parents. In 1955 an Arizona trial judge ordered the state to release all children still held in foster care to their mothers. Most of them returned to Short Creek.

Utah authorities were both more determined and more focused. Vera Black and her eight children were selected as a test case designed to set a chilling precedent for all polygamous parents. The Washington County juvenile judge was the subject of intense ex parte communication with both Arizona and Utah authorities. The case was "decided" before an evidentiary hearing was even begun on the Black children.

The eight children were found to be in need of state supervision and all parental rights were terminated. State authorities were willing to return them to Mrs. Black if she would renounce her religious beliefs, but she flatly refused. The children remained in an Orem foster home over the next two years. The matter was appealed to the Utah Supreme Court which held against the mother in 1955.

In a unanimous opinion, the Court held that polygamists brought shame on the state of Utah and threatened to undermine the traditional family model. In finding that polygamists have no rights to the custody of their own children, the majority opinion held that "the practice of polygamy, unlawful cohabitation and adultery are sufficiently reprehensible, without the innocent lives of children being seared by their evil influence. There can be no compromise with evil."

The children remained in foster care until June 1956 when a face-saving compromise was worked out, allowing their return to their parents. Today, Vera Black, her two sister-wives, and all her children are respected members of the Colorado City community. Her husband, Leonard Black, died and was buried there in 1977.

In 1987 the Utah Supreme Court again considered the rights of polygamous parents in Sanderson v Tryon, a child custody dispute involving a dissolved polygamous household. The case involved fundamentalist Mormons who followed Owen Allred, a brother of Rulon Allred who was murdered in 1977 by the Ervil LeBaron group.

Sanderson involved sisters married to the same man. When the family dissolved in 1982, a custody dispute followed in which the then-monogamous husband tried to use In Re Black in support of his claim for custody of the children. His former wife had become part of another plural household.

Without mentioning In Re Black, the Utah Supreme Court held that the wife's continued polygamy did not disqualify her from retaining custody of the three children involved. A unanimous court applied the "best interests of the child" standard and remanded the case back to the trial court for an evidentiary hearing. Chief Justice Hall, a dissenter in the most recent case, wrote for the Sanderson majority, "A determination of the children's best interests turns on numerous factors, each of which may vary in importance according to the facts in the particular case. . . . The trial court's finding that a parent practices polygamy is alone insufficient to support a custody award or to permit meaningful review on appeal."

While Sanderson was a significant victory for fundamentalist Mormons, it did not affect matters in Utah's family courts where adoptions, neglect, and dependency matters are heard.

But the Fischer case appears to do that.
Originally published September 1991