The Marriage Debate and Polygamy:
Several Utah Cases Challenge Whether Anti-Polygamy Laws Are Constitutional

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Jul. 29, 2004

Several prosecutions and lawsuits against polygamists, now pending in Utah, are notable for the constitutional defenses that have been - or could be -- raised.

Polygamy is the practice (usually religious) of having multiple spouses (usually wives). There are two possible lines of constitutional attack on anti-polygamy statutes. One derives from the First Amendment's religion clauses. The other derives from Due Process "right to privacy" concepts - and in particular, from the Supreme Court's recent holding in Lawrence v. Texas that adults have a privacy right that extends to private, consensual sex acts.

In the end, neither of these lines of attack will - or should - be successful. Still, it is worth taking a close look at each to examine the extent to which the Constitution allows states to shape - or forbids them from shaping - the definition of marriage, and regulating who can marry whom.

The Argument Against Anti-Polygamy Laws Deriving From the Religion Clauses

First, let's consider the argument against anti-polygamy laws deriving from the Free Exercise and Establishment Clauses of the First Amendment.

The basis of this argument is a historical fact: When Congress outlawed polygamy in the Territories in the Nineteenth Century, its motive in part was to suppress the Church of Jesus Christ of Latter-Day Saints -- which at that time believed in the sanctity of polygamous marriages. Modern anti-polygamy statutes, the argument holds, continue to bear this taint.

The problem, though, is that motive is not generally relevant to the interpretation of a statute. The anti-polygamy laws were - and are -- facially neutral: They apply equally to secular and religious polygamists. That facial neutrality makes it clear that Congress was not focused solely on eradicating religious polygamists in the West, but also intent on preserving the long tradition of marriage between one man and one woman.

Under the key Supreme Court precedent of Employment Division v. Smith, a neutral, generally applicable law that, as applied, affects the free exercise of religion, is subject only to rational basis review. Smith definitively rejects the argument that the First Amendment's Religion Clauses give religious individuals and institutions the right to avoid the application of neutral laws.

The anti-polygamy statutes will easily survive constitutional review, for they plainly have a rational basis, as I will explain. Indeed, there are very good reasons for these statutes that will not and should not be gainsaid by any court.

The Rational Basis For Anti-Polygamy Laws

History shows that polygamous marriage --at least as it has been practiced in the United States by multiple religious sects--raises a significant danger that underage girls will be married to much older men. In other words, it has fostered and condoned statutory rape. There is also disturbing evidence that underage girls are being trafficked across state and international lines for purposes of polygamy, a practice that violates the federal Mann Act. (Shamefully, however, the federal government has failed to enforce the Mann Act in this context. As with the thousands of clergy abuse victims, the federal government has ignored polygamy's victims, which leads one to wonder what a religious group would have to do to a child to prod the federal government into action.)

History shows that polygamy raises a danger of incest as well. Polygamous husbands have married their own daughters or nieces.

Moreover, these dangers are not confined to any one religious organization's practice of polygamy. In the illuminating new book, God's Brothel, author Andrea Moore-Emmett describes the fate of 18 women who escaped from polygamous marriages in 18 different sects. Each portrait painted shows that the costs of such marriages are severe.

Evidence like this more than provides the rational basis that is needed to rebuff a Free Exercise challenge to the anti-polygamy laws. Indeed, such laws pass strict scrutiny as well, because the interest in protecting children from statutory rape and underage marriage is of the highest order. But what about other constitutional arguments?

The Opening of the Debate Over Marriage: A "Privacy" Right to Polygamy?

Of course, we are currently in the midst of a heated public debate over marriage - and in particular, over same-sex marriage. Will the ramifications of constitutional holdings relating to same-sex marriage affect the anti-polygamy laws?

Justice Antonin Scalia certainly thinks so. Recently, and famously, the Supreme Court held in Lawrence v. Texas that adults have a privacy right that extends to private, consensual sex acts - including sodomy, whether homosexual or heterosexual - that ensures that such acts cannot be criminally prosecuted. The Court explicitly stated that its privacy decision did not implicate marriage.

Justice Scalia's dissent, however, warned that the Court, in so holding, was undermining the ability of the state to regulate morals--and marriage. Indeed, he predicted that anti-bigamy laws would soon face constitutional challenges, too. But the extension of Lawrence to anti-polygamy laws is highly unlikely - as Joanna Grossman explained in a previous column on Scalia's "parade of horribles" in his dissent.

Shortly after Lawrence was decided, and also famously, the Massachusetts Supreme Judicial Court - in Goodridge v. Dep't of Public Health -- held that it was a violation of the state constitution's equal protection guarantees to prohibit same-sex marriages. Federal and state equal protection guarantees, however, will not aid the polygamists. Anti-polygamy statutes draw the line at the number of spouses, not their characteristics or status. There is long-settled precedent that limiting the number of spouses does not violate any constitutional guarantee, nor should it.

It Is Up to Each State To Define Marriage For the Good of Its Citizens

Still, the combined impact of Lawrence and Goodridge has opened the door to the question of whether marriage should be extended beyond the traditional male-female union. The primary power for marriage law resides in the states. And that is the way it should be: The question of the institution of marriage--which is a social construct--is best left to the states, which are the laboratories for the general welfare.

Congress only has indirect power over marriage, which is why the opponents of same-sex marriage introduced the FMA. Congress also has attempted to regulate marriage indirectly through court-stripping proposals and the Defense of Marriage Act, either of which may well be unconstitutional, as Joanna Grossman has discussed in a recent column. Regardless, the definition of the institution belongs to the states.

There is no single, wise answer as to what will serve society and citizens best in this arena. With each state free--within the state's own constitutional requirements--to have its own public debate about what serves society, and what does not, there is the possibility that there will be 50 simultaneous experiments - and that is much to be encouraged. The debate will have to range well beyond the religious reasons that have dominated the public debate to date. Marriage implicates the interests of children, the law of inheritance, and legitimacy, among many other issues. As with the law of divorce, the states will learn from their own experiments and mistakes, and from those of other states.

There is no constitutional requirement that marriage exist solely between a man and a woman. To impose that rule across the country would have required a federal constitutional amendment - such as the Federal Marriage Amendment (which addressed same-sex marriage). But the FMA failed. States have broad latitude to make these complex social decisions--all the way from keeping their laws as they currently stand, to opening their doors to other types of marriage.

Those who seek to enter into polygamous marriages legally thus should address their arguments not to the courts, but to the state legislatures. If they cannot persuade a majority of their state legislature that they are right, then they properly will have to abide by the law of marriage, established for all. The fact their marriage arrangement is religiously motivated should not alter that outcome.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on other church/state issues, can be found on this site. Her email is hamilton02@aol.com.