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Now that a U.S. appeals court has declined to strike down Utah’s bigamy laws, it’s reasonable to ask: What does the Constitution, properly interpreted, have to say about the topic?
Legally speaking, the issue can be split in two. The first question is whether a state may criminalize marriage to more than one person. The second is whether, in light of the U.S. Supreme Court decision last year to require states to recognize same-sex marriage, there now exists a fundamental right to marry more than one person – and to make states treat plural marriages on equal terms with marriages between two people.
The first one is easier. Under current laws in many states, if you’re already married, then it’s a crime to marry another person as well. These laws are part of our legal tradition, and perhaps make some sense if you restrict them to bigamists who marry a second spouse without telling them about the existence of the first.
But consider the consolidation of constitutional rights that already exist: I can have sex with any consenting adult under the court’s 2003 precedent of Lawrence v. Texas, which struck down anti-sodomy laws. I can freely engage in any religious ritual under the free-exercise clause of the First Amendment. And using my freedom of speech, I can talk about both my sexual relationships and religious rituals that I’ve used to solemnize them.
Given these rights, it seems strange that the law prohibits me from forging sexual relationships with multiple partners and calling them my spouses after we’ve made a mutual religious commitment. If I called them girlfriends or boyfriends, I’m protected by the Constitution. So, it seems indefensible that I can’t call them wives or husbands.
It might just be plausible to say that I can’t call my life partners legal wives or husbands so long as the law doesn’t recognize plural marriages. But even a rule prohibiting me from doing so on the grounds that it might mislead others is almost certainly unconstitutional. In U.S. v. Alvarez in 2012, the court struck down a law that criminalized lying about winning a medal of honor. The right to lie is therefore enshrined in the constitutional pantheon. If I can lie about a medal, why not about marriage?
The harder question is whether the state should be obliged to recognize plural marriage and treat polygamists equally with those who marry one person. In the Supreme Court’s gay-marriage decision, Obergefell v. Hodges, Justice Anthony Kennedy said that there was a fundamental right to marry the person of your choice, and he said that everyone is owed the opportunity for the equal dignity of marriage regardless of sex or sexual orientation. But he did not say those rights could be extended to polygamy and polygamists.
Logically, however, that extension is warranted unless the government has a compelling interest in preventing plural marriage. Start with the fundamental right to choose a partner. Suppose I am not married and want to choose someone who is already married. My autonomy demands that I be free to make that choice, much as I should be able to choose a partner regardless of that person’s sex.
Then there’s the question of equal dignity. If all humans are inherently entitled to have their marriage choices respected and acknowledged by the government, there’s no good reason to exclude people who choose plural marriage. The fact that some religions tend to be the people seeking this right gives a further free-exercise reason to treat them equally.
Often, the Supreme Court asks whether a fundamental right is trumped by a compelling state interest to the contrary. This does not seem to be such a case. Considering that the law already allows me to share my life with multiple partners, what interest can the state have in refusing recognition to that relationship? Certain versions of plural marriage may be associated with cult-like behavior or abuse. But the solution is to outlaw abuse and coercion, not polygamy itself.
Practical legal problems regarding child custody and property division would arise in plural marriages. And it remains to be worked out whether such marriages would consist of overlapping bilateral relationships or comprehensive joint ones. But these are the kinds of problems that family law excels in solving. Plural marriage, after all, is not some newfangled invention. It’s in the Bible, and was known to most ancient civilizations in one form or another. Its roots lie even deeper than those of gay marriage. It’s time the Supreme Court recognized it.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Noah Feldman
Bloomberg View
April 14, 2016
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books. He has a bachelor’s degree from Harvard, a law degree from Yale University and a doctorate from the University of Oxford, where he was a Rhodes scholar. He clerked for Justice David Souter on the U.S. Supreme Court. He lives in Cambridge, Massachusetts, and is a senior fellow of the Society of Fellows at Harvard.
Yesterday afternoon, the United States Court of Appeals for the Tenth Circuit reversed the decision of Brown vs. Buhman, which had struck down the cohabitation provision of the Utah polygamy law. They ruled that the lower court should have dismissed the case, while they failed to address any constitutional issues or violations.
Jonathan Turley, lead counsel for the Brown Family, respectfully disagrees with the court decision and intends to appeal, as he believes that the underlying rights of religious freedom and free speech are too great to abandon after prevailing in the lower court.
Perhaps the reason behind the higher court’s ruling is as simple as what one has suggested:
My sense is that the panel looked for a reason to avoid handling a hot potato.
We agree with the assessment of another who wrote,
Thinking strategically … if [the state of Utah] had lost, the state might not have appealed, and the decision would only apply to the 10th circuit; but because the Browns lost, they can choose to appeal to the Supreme Court, and thus have a chance to have the law struck nationwide.
It was Justice Harry Blackmun, addressing another issue, who once wrote in his dissent from the majority opinion in Bowers v. Hardwick:
That certain … religious groups condemn … behavior … gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.
Listen to these adapted comments related to this issue:
What’s the difference between (1) marriage, (2) serial marriage, (3) cohabitation, (4) serial cohabitation, (5) friends with benefits (6) one night stands and (7) plural marriage?
6 are legal in many states.
In contrast, another observes:
Pop culture hates polygyny for the same reasons they like same-sex marriage: [our culture] is anti-family and anti-progeny. Polygynists stand against modern values.
In some societies a man may marry several wives. Western society allows this in a different way, in what is sometimes called “serial polygamy” – a man may marry several wives so long as he legally divorces the current one before marrying the next.
Arguably, the “Christian” form of polygamy is a more primitive and callous arrangement for the man’s existing family than ordinary polygamy. In polygamous societies, the first wife and their children remain viable parts of a viable social entity… In serial polygamy the children are brought up in a broken home, the wife is discarded in a difficult social position.
Understanding Human Behavior
Human Relationships: Man & His Women, Vol. 4, p. 438
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Much of what I teach is regarding absolute truth – it is fixed and foundational.
On the other hand, however, there’s a lot of what I share that is relative. In this area I deal with the application of absolute truth in day-to-day life. It is here, in the relative (how we relate the truth practically to our lives), that things are more difficult. This is due to the barrage of unparalleled circumstances that today’s believers must face. These circumstances are so removed from the divine ideal that we are caught in extremely difficult situations. These conflicting settings are, more often than not, less than ideal, if not in outright opposition to God and His revealed principles.
For this reason, believers frequently simply have to do the best that they can do under the circumstances. God knows all about it since, obviously, it is He Who has designed these challenges of faith. We must play the hand we are dealt.
Although, having said that, by the grace of God, utilizing divine wisdom and the courage of faith we may take advantage of the opportunity to discard and draw again – daring to cross the currents of a society that has recklessly abandoned God and His revelation. This is not an easy course, and it is one that we likely will walk alone.
The Patriarchs' Journal 