|Custody Battle in Utah's Top Court Shines Rare Spotlight on Polygamy|
By LISA BELKIN, Special to The New York Times|
The New York Times
HILDALE, Utah — The main route into this thumbnail-size town is barely marked - just a tiny street sign on a red dirt road, easy to miss without detailed directions. There is no reason to increase the size of the sign. The people of Hildale would rather not be found.
If the sign to Hildale is small, the houses here are are oddly large, with additions in all styles and directions. Nearly everyone in Hildale belongs to a tightly knit religious group that still practices polygamy, just as their Mormon forebears did, and most of these homes hold several wives and dozens of children.
In one of those houses is the family of Vaughn Fischer, who, street signs or none, is attracting attention lately. Mr. Fischer wants to adopt the six children of his No. 3 wife, who died two months after they married in 1987.
His two remaining wives agree to the adoption, as do the six children, who continue to live here with the Fischer family. The children's father has also consented.
But the dead woman's two half-sisters, Patricia and Janet Johanson, are trying to stop the adoption on the ground that polygamy is illegal and the state cannot place children into a home that practices it. They want the children to live with Janet Johanson, a college administrator in Salem, Ore.
Going to Top State Court
The Fischers say a prohibition on adoptions by polygamous families would violate their freedom to worship as they choose. The Johansons' suit to prevent the Fischers from adopting will be argued in the State Supreme Court in Salt Lake City on Monday.
Each sides has said that if it loses it will appeal to the United States Supreme Court, which ruled more than a century ago that states may prohibit polygamy.
The dispute throws a rare spotlight on the bittersweet feelings this largely Mormon state has for its polygamous past. When Joseph Smith founded the Church of Jesus Christ of Latter-day Saints in the 1830's, he allowed men to take several wives, saying that was in the tradition of David and Abraham.
Congress refused to grant statehood to the Utah territory until polygamy was banned. Monogamy was made the law in 1890, and the Mormon Church has condemned and distanced itself from polygamy ever since. But a small group of polygamists fled south and built Hildale and Colorado City.
The two are really one town straddling the Utah-Arizona border, built that way so residents could easily flee to another state if the police arrived. But no one has had to flee for a while. "There hasn't been an active prosecution of polygamy in more than 35 years," said the Fischers' lawyer, Steven E. Snow, who can trace his roots to four polygamous great-great-grandfathers. "That says something about how accepting we are."
Tim Anderson, the Johansons' lawyer, is descended from a great-great-grandfather who had three wives. "In Utah there's a little bit of desensitization to the oddity of the whole thing because of our past," he said. "There's the feeling that it isn't hurting anybody. But it hurts the children." This custody dispute really began before the children were born. Their mother, born Brenda Johanson, was reared from early childhood in another small polygamous community outside Salt Lake City in the home of her mother and stepfather, Phil Thornton, who gave her his family name.
When she was 17, Brenda Thornton was told by the group's leader that the Lord had ruled that she, too, should be married to Mr. Thornton. For the next 17 years she lived as her stepfather's other wife, and they had four daughters and two sons.
In 1984 she left the Thornton house and took the children to Sandy, Utah, where she sent them to public school, let them wear blue jeans and short sleeves, bought them a television set and took them swimming - all of which are prohibited in the strict polygamist communities. Soon after her move she learned she had breast cancer. Afraid her illness was retribution from God, she went to the polygamist leader, Rulon Jeffs, for help.
Her marriage to Mr. Thornton had been dissolved when she left the group. Mr. Jeffs told her to move to Hildale and marry Mr. Fischer, who already had two wives and more than a dozen children. She and Mr. Fischer were wed in June 1987 three hours after they met, and she and her children moved to the Fischers' 14-bedroom weatherbeaten home. A trailer home was added to provide enough room for the expanded family.
On a recent trip to that home, children were everywhere, peering around corners at their visitor. There was a very long table in the kitchen, homebaked bread on the counter, and two barbecue grills outside.
Brenda Thornton signed a will saying she wanted her children to be adopted by the Fischers. But Patricia Johanson, who was in Hildale caring for her half-sister in the three weeks before she died, said Brenda Thornton told her she had signed the will as the only way she could get care for the children while she was ill.
In the weeks before her death, her half-sister said, she orally rejected the will. "She said she did not want the kids to grow up in that environment," said Miss Johanson, who lives near Washington, D.C. "She said she wanted them to have full access to their own family and she didn't want her little girls to get married to some old man when they were 16 and 17."
The Fischers have said little about the case, but in a brief telephone interview and again at her home, the elder of Mr. Fischer's two remaining wives, Sharane Fischer, said Miss Johanson's account is untrue. "Brenda warned us 'I have a sister that will probably cause trouble.' " she said.
"This is our family," she said. "Their mom asked us to adopt the children and we are honoring her wishes."
'A Good Family'
Brenda Thornton died in August 1987. Within weeks, Mr. Fischer filed a request to adopt the children. The paperwork went unremarkably, smoothed by the mother's signed request and the consent of the father, Mr. Thornton.
A home study by the state Department of Social Services, finding the Fischers to be an upstanding religious family and "a good family for adoption," recommended that the adoption be allowed.
But at the end of last year, Judge Dean E. Conder of Family Court agreed with the Johanson sisters and ruled that the Fischers were not eligible to adopt because "the practice of polygamy is a crime and constitutes immoral conduct."
Judge Conder stayed his opinion until the Utah Supreme Court ruled, He allowed the children, then ranging in age from 19 to 5, to stay with the Fischers in the interim.
In court, Judge Condor said he was troubled by the case. "On both sides of my family tree I have polygamists," he said, according to a hearing transcript. "My great-grandfathers on both sides. I have some reticence to say, 'O.K., they're criminals.' "
That ambivalence is felt by many throughout the state despite the Supreme Court ruling that upheld the state's ban on polygamy. The 1878 ruling, in Reynolds v. United States, held that while the right to free religious belief was unconditionally protected, the right to act on those beliefs could be curtailed by the states in certain situations, including polygamy.
A friend of the court brief filed by the American Civil Liberties Union of Utah Foundation on behalf of the Fischers argues that polygamy should be permitted in the state and asks the Utah Supreme Court to determine whether the Reynolds case is "still good law." "Reynolds was decided at a different time and in a different era" the brief states, and "the Supreme Court has adopted a different standard for determining the constitutionality of regulations which burden religious conduct."
Richard G. Wilkins, a professor of law at the J. Reuben Clark School of Law at Brigham Young University, said he felt that in the century since the Reynolds case, the United States Supreme Court has broadened its definition of freedom of religion and of privacy as it applies to child rearing.
"The standards established by Reynolds are clearly fraying around the edges and the Supreme Court might agree to hear this case," he said. "If they do, that would certainly stir up feelings around here even more."
Originally published June 12, 1989
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