Legality of polygamy in the United States

Couples have married in the United States for centuries. For most of US history, marriages were solemnized in an ecclesiastical setting. Government-issued marriage licenses are a modern innovation. Even before the advent of licensing, many states enacted laws to prohibit plural marriage style relationships. Early Mormons were persecuted for their practice of polygamy. No state permits its citizens to enter into more than one concurrent, legally-licensed marriage. People who attempt to, or are able to, secure a second marriage license are generally prosecuted for bigamy. The terms "bigamy" and "polygamy" are sometimes confused or used interchangeably. Some states' statutes refer to polygamy while others use the bigamy term. Criminal sentences differ widely. Prosecutions for either violation are extremely rare. Polygamy is a practice difficult to define since it virtually never occurs in the context of legal licensing. Given that Mormon polygamists migrated to the Rocky Mountains in 1847, partly to escape prosecution for polygamy in the eastern states, efforts to curb the practice focused intensely on Utah and the surrounding territories in the 1800s. Utah and four other western territories were constrained to incorporate a prohibition against plural marriages in their state constitutions. Given that almost no polygamists bother to seek a second marriage license, the practice of forming a family with more than one spousal-styled relationship is very difficult to criminalize. In the majority of cases, the additional partner is considered a wife in the context of religious beliefs. Legally speaking, the practice is more akin to adultery. Criminal prosecutions of adultery are unheard of in the U.S. Utah made the practice of polygamy a felony in 1935, after the Church of Jesus Christ of Latter-Day Saints publicly repudiated it in 1890, 1904 and 1910. Many convictions followed. Since the 1960s, polygamy prosecutions have been rare. Prosecutions included Robert D. Foster, Steve Bronson, Mark Easterday, Thomas Green, and Rodney Holm. The latter two prompted state supreme court challenges. Both failed. Nevertheless, Utah has remained reluctant to pursue prosecutions, citing a lack of resources, difficulties obtaining convincing evidence, and an understanding that any prosecution would trigger an inevitable appeal to the higher courts. The Supreme Court's 2003 Lawrence v. Texas ruling found that all adult, consensual, non-commercial sexual activity is protected, thus weakening any attempts to prosecute families for private residential or sexual arrangements that did not seek the imprimatur of the state.

In December 2013, Federal District Court Judge Clark Waddoups struck down part of Utah's felony bigamy statute, effectively decriminalizing the informal practice of polygamy in Utah. The state of Utah appealed the decision, arguing that polygamist Kody Brown lacked standing to bring his civil suit, since his county prosecutor, Jeff Buhman, had not followed through on any plan to prosecute the Brown family. The Tenth Circuit Court of Appeals (Denver) agreed with Utah and overturned Waddoups' decision, thus effectively recriminalizing felony bigamy.

In 2020, State Senator Deidre Henderson introduced a bill reducing the penalty for informal bigamy (polygamy) from a five-year prison sentence to an infraction. The bill passed with overwhelming support in Utah's House and Senate. Imprisoning informal polygamists brings special challenges, since a paroled polygamist will likely return to his wives and children, thus falling afoul of the law once again, requiring him to return to prison time and time again.

Utah is the only state where it is a civil infraction rather than a crime as of 2020. Federal legislation to outlaw the practice in federal territories was endorsed as constitutional in 1878, despite the religious objections of The Church of Jesus Christ of Latter-day Saints (Mormons), by the Supreme Court, in Reynolds v. United States.

On December 13, 2013, a federal judge, spurred by the American Civil Liberties Union and other groups,[1] struck down the parts of Utah's bigamy law that criminalized cohabitation, while also acknowledging that the state may still enforce bans on having multiple marriage licenses.[2]

Individualist feminism and advocates such as Wendy McElroy and journalist Jillian Keenan support the freedom for adults to voluntarily enter polygamous marriages.[3][4]

Authors such as Alyssa Rower and Samantha Slark argue that there is a case for legalizing polygamy on the basis of regulation and monitoring of the practice, legally protecting the polygamous partners and allowing them to join mainstream society instead of forcing them to hide from it when any public situation arises.[5][6]

In an October 2004 op-ed for USA Today, George Washington University law professor Jonathan Turley argued that, as a simple matter of equal treatment under law, polygamy ought to be legal. Acknowledging that underage girls are sometimes coerced into polygamous marriages, Turley replied that "banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse".[7]

Stanley Kurtz, a Conservative fellow at the Hudson Institute, rejects the decriminalization and legalization of polygamy. He stated:

Marriage, as its ultramodern critics would like to say, is indeed about choosing one's partner, and about freedom in a society that values freedom. But that's not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds in 1878 understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.[8]

In January 2015, Pastor Neil Patrick Carrick of Detroit, Michigan, brought a case (Carrick v. Snyder) against the State of Michigan that the state's ban of polygamy violates the Free Exercise and Equal Protection Clause of the U.S. Constitution.[9][10]

As of 2008 some conservative Muslims in the U.S. engaged in polygamous relationships in which each had one wife with a legal marriage and others with only religious marriages.[11] Around that time a phenomenon of polygamy occurred among Muslims in Philadelphia who were black.[12]

References
  1. ACLU of Utah to Join Polygamists in Bigamy Fight, July 16, 1999 press release.
  2. "Federal judge declared Utah polygamy law unconstitutional". The Salt Lake Tribune. 13 December 2013. ISSN 0746-3502.
  3. Korol, Bruce (2009). "Polygamy is a (al)right". Arts & Opinion. 8 (3). Reprinted by Wendy McElroy at wendymcelroy.com
  4. Keenan, Jillian (15 April 2013). "Legalize Polygamy! No. I am not kidding". Slate.
  5. ROWER, ALYSSA (29 December 2017). "The Legality of Polygamy: Using the Due Process Clause of the Fourteenth Amendment". Family Law Quarterly. 38 (3): 711–731. JSTOR 25740483.
  6. "Are Anti-Polygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults?" Samantha Slark, Journal of Law & Family Studies No. 6 (2004), p. 451-60.
  7. "Polygamy laws expose our own hypocrisy". Jonathan Turley, USA Today (3 March 2004)
  8. "Polygamy vs. Democracy". The Weekly Standard. Published: 5 June 2006.
  9. "Carrick v. Snyder et al". Justia Dockets & Filings.
  10. Oralandar Brand-Williams, The Detroit News (13 January 2015). "Minister sues Mich. for right to marry same-sex couples". The Detroit News.
  11. "Some Muslims in U.S. Quietly Engage in Polygamy". National Public Radio. 2008-05-27. Retrieved 2019-05-11.
  12. Hagerty, Barbara Bradley (2008-05-28). "Philly's Black Muslims Increasingly Turn to Polygamy". National Public Radio. Retrieved 2019-05-11.

Further reading
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