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While enjoying my morning coffee, a headline popped up on my screen: “Utah Lawmakers Decriminalize Polygamy.”  My initial reaction was, this must be some fake news scare tactic by a shock jock media outlet.  But when I clicked on the article, to my surprise, a full-length article appeared published in the Wall Street Journal from a respected journalist. The Utah legislature had voted the day before to declassify polygamy as a felony.   In the eyes of the law, this meant that a man or woman in residing in Utah could now have multiple spouses without fear of arrest or prosecution for the crime of bigamy.

By definition, a person commits bigamy when they marry someone while being legally married to another person. All states, with the exception now of Utah, declare bigamy a felony.  In Tennessee, it is punishable by up to five years in prison.  

In 1878, in a case called Reynolds v. United States, the Supreme Court upheld the right of the federal government to outlaw the practice of polygamy. The court drew upon a longstanding history and tradition dating back to early English common law calling for strict punishment of this criminal offense. There was a time in England and Wales when the crime was even punishable by death.  As the court in Reynolds noted: “From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity.”

So why is it today we are finding acceptance again of this practice that once was so abhorred?

On September 26, 2010, a popular TV series “Sister Wives” made its debut as an American reality television series broadcast. The show documented the life of a polygamist family, starring a father Kody Brown, and his four wives (Meri, Janelle, Christine, and Robyn), and their 18 children.

The series led to the Brown family being investigated in Utah for possible prosecution. But when the Browns hired the ACLU and sued the state of Utah, challenging its criminal polygamy laws, they prevailed in the district court. The court ruled that certain aspects of Utah’s bigamy statute infringed upon the Browns’ “fundamental right” to practice polygamy as a form of “religious cohabitation.”  The decision was later overturned on appeal, but the district court opinion sent a clear message to use a Bob Dylan lyric that “the times, they are a changing.” 

Jonathan Turley, the ACLU attorney representing the Browns put it this way in his blog post:  “This ruling strikes down the criminalization of polygamy and will allow plural families to step out for the first time in their communities and live their lives openly among their neighbors.”

In 2013, the same year the Browns won their case in Utah, the Supreme Court, in a case called United States v. Windsor, held that the Defense of Marriage Act, which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment.  I recall some years ago debating two law professors at Vanderbilt Law School on the topic of same-sex marriage and I used, as the premise of my position, that legalizing same-sex marriage was an invitation to the decriminalization of polygamy.  Recent developments in Utah seem now to be reaffirming my argument. 

Without an anchor in the law protecting the sanctity of traditional marriage defined as a covenant between a man and a woman, there is no basis, from a constitutional standpoint, to outlaw plural forms of marriage. 

Court rulings are merely a reflection of changing norms and mores in our society. To quote again from the Wall Street article: “According to a Gallup poll, acceptance of polygamy appears to be increasing in the U.S. In 2018, 18% of Americans believed marrying more than one person was morally acceptable. In 2003, 7% of those asked took the same stance.”

Larry L. Crain, Crain Law Group, PLLC  [email protected]

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