by Esther Raty*

Introduction

Bigamy, “the act of entering into a marriage with one person while still legally married to another,”^[1] is illegal in the United States.^[2] If a person’s first marriage remains intact, their second marriage is not legally binding and can even lead to criminal charges.^[3] Bigamy laws prohibit individuals in polygamous and polyamorous relationships from marrying more than one spouse.^[4] Since those who practice polygamy and polyamory are unable to marry those with whom they have a marriage-like relationship, they remain unprotected by the law in matters of inheritance, hospital visits, and parentage rights.^[5]

Three constitutional arguments have emerged to support the decriminalization and recognition of bigamous marriages.^[6] The first is a First Amendment argument that the criminalization and non-recognition of bigamous marriages interferes with the free exercise of religion.^[7] This argument is unique to groups seeking the legalization of bigamous marriages who practice bigamy as a tenant of their religion.^[8] The second argument is grounded in the U.S. Supreme Court’s finding that the right to personal choice regarding marriage is protected by the  Due Process Clause of the Fourteenth Amendment.^[9] Proponents of this argument claim that the right to choose whom to marry can be extrapolated to give individuals a right to enter a bigamous marriage.^[10] The last argument claims that not granting people in bigamous marriages the same benefits as those in non-bigamous marriages violates the Equal Protection Clause of the Fourteenth Amendment.^[11] In this post I will describe the legal grounds for each of these arguments.

The Free Exercise Clause of the First Amendment

In the United States, up to sixty thousand people practice polygamy, many as part of a religious practice. Though controversial even among coreligionists,^[12] some  Muslims and originalist Mormon groups in the U.S. engage in polygamy as a religious practice.^[13]  Many originalist Mormon groups in Utah who practice polygamy have been fighting to decriminalize bigamy in the state, making successful strides in narrowing the legal definition and decreasing criminal sanctions for bigamy.^[14]

A Utah family who practices polygamy as a religious tenant successfully narrowed the legal definition of bigamy in the 2013 case Brown v. Buhman.^[15] The Browns are nationally known for practicing polygamy, which they believe is a core religious practice, from their reality TV show “The Sister Wives” on TLC Network.^[16] After the first episode of “The Sister Wives” aired, Utah state officials investigated the Brown family.^[17] Even though none of the Browns are married to multiple other people, Utah officials charged them with violating the state’s anti-bigamy law because the statute criminalizes both bigamous marriages and bigamous cohabitation, which “encompasses a broad category of private relations in which a married person ‘purports to marry another person or cohabits with another person.’”^[18] The Browns argued that Utah’s anti-bigamy statute was unconstitutional under the First Amendment because the statute was not generally applicable as it prohibited religious cohabitation but not other partnered cohabitations.^[19] The court agreed and struck the cohabitation prong of the statute.^[20] In deciding the criminalization of bigamous cohabitation was unconstitutional, the court looked to the Free Exercise Clause of the First Amendment to find that Utah’s bigamy statute was not justified by a compelling government interest and was not narrowly tailored to advance a compelling government interest.^[21] While only the cohabitation prong of the Utah statute was under question in this case, a Free Exercise Clause argument could be used to argue that the illegality of bigamous marriages is not justified by a compelling government interest and is not narrowly tailored to advance a compelling government interest.

The Due Process Clause of the Fourteenth Amendment

The court in Brown also found that the criminalization of bigamous cohabitation (including polygamous living arrangements) violates the Due Process Clause of the Fourteenth Amendment .^[22] Brown drew on the 2003 Supreme Court case, Lawrence v. Texas, decriminalizing private sexual conduct, to find that the cohabitation prong of Utah’s bigamy statute does not survive rational basis review and must be striken as a violation of substantive due process.^[23]

Since Brown was decided, a Supreme Court dissent discussed the legal recognition of bigamous marriages in the 2015 case Obergefell.^[24] In his dissent in Obergefell, Chief Justice Roberts pointed out that the majority’s reasoning for finding a constitutional right to same-sex marriage could also be applied to find a constitutional right to “polyamorous families” and/or “a family of three or more persons raising children.”^[25] The majority in Obergefell found “[t]he right to marry is fundamental under the Due Process Clause”^[26] for four reasons: (1) choice in marriage is inherent in the concept of individual autonomy; (2) marriage supports a union of committed individuals; (3) marriage safeguards children and families; and (4) marriage is a keystone of the Nation’s social order.^[27] While Roberts appears to be trying to make a slippery-slope argument against the legal recognition of same-sex marriage, his reasoning highlights one of possible constitutional grounds for legal recognition of bigamous marriages: the Due Process Clause of the Fourteenth Amendment.^[28]

As the Chief Justice points out in his dissent, it is not a far stretch to argue that the choice of whether to engage in bigamy is also inherent in the concept of individual autonomy, that bigamous marriages are uniquely committed in the same way two-person unions are, that children and families are safeguarded by the recognition of each parent in a family, and that marriage of individuals in bigamous relationships allows for “social order” when individuals are already in bigamous relationships practically. Those seeking legalization of bigamous marriages can show how the Obergefell factors finding a due process right to same-sex marriages also apply to bigamous marriages.

The Equal Protection Clause of the Fourteenth Amendment

Obergefell also lays out an Equal Protection Clause argument for the legal recognition of same-sex marriages, which can also apply to bigamous marriages. The Court explained that laws that only recognize heterosexual marriage “are in essence unequal” because they bar same-sex couples “from exercising a fundamental right” and deny them “benefits afforded opposite-sex couples.”^[29] Currently individuals who wish to be part of a bigamous relationship are barred from exercising the fundamental right to marry how they want. Those individuals are also denied benefits afforded to two-person unions such as the right to be recognized as a legal parent, tax benefits, and protections against discrimination.

Drawing on the First and Fourteenth Amendments, bigamous groups may continue to find success in using constitutional arguments to seek legal recognition of their marriages.

*Esther Raty, University of Minnesota Law School Class of 2022, JLI Volume 40 Managing Editor

[1] Bigamy, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/bigamy (last visited Aug. 29, 2021).

[2] Bigamy in the U.S.—Is It Criminal in All States? HG.org, https://www.hg.org/legal-articles/bigamy-in-the-u-s-is-it-criminal-in-all-states-48723.

[3] Id.

[4] Andrew Solomon, How Polygamorists and Polygamists are Challenging Family Norms, New Yorker (Mar. 22, 2021), https://www.newyorker.com/magazine/2021/03/22/how-polyamorists-and-polygamists-are-challenging-family-norms.

[5] Id.

[6] Id.

[7] Jennifer Dobner, Part of Utah’s Bigamy Law Struck Down in Victory for U.S. TV Star, Reuters (Dec. 14, 2013), https://www.reuters.com/article/us-usa-polygamy-sisterwives/part-of-utahs-bigamy-law-struck-down-in-victory-for-u-s-tv-star-idUSBRE9BD02720131214;, Harmeet Kaur, Bigamy is No Longer a Felony in Utah, CNN (May 12, 2020), https://www.cnn.com/2020/05/12/us/bigamy-decriminalized-utah-trnd/index.html.

[8] Solomon supra note 4.

[9] Obergefell v. Hodges, 576 U.S. 644, 644 (2015).

[10] Id.

[11] Id. at 647.

[12] See, e.g., Barbarra Bradley Hagerty, Some Muslims in U.S. Quietly Engage in Polygamy, NPR (May 27, 2008), https://www.npr.org/templates/story/story.php?storyId=90857818.

[13] Solomon supra note 4.

[14] Jennifer Dobner, Part of Utah’s Bigamy Law Struck Down in Victory for U.S. TV Star, Reuters (Dec. 14, 2013), https://www.reuters.com/article/us-usa-polygamy-sisterwives/part-of-utahs-bigamy-law-struck-down-in-victory-for-u-s-tv-star-idUSBRE9BD02720131214;, Harmeet Kaur, Bigamy is No Longer a Felony in Utah, CNN (May 12, 2020), https://www.cnn.com/2020/05/12/us/bigamy-decriminalized-utah-trnd/index.html.

[15] Brown v. Buhman, 947 F. Supp. 2d 1170, 1234 (D. Utah 2013).

[16] Id. at 1178-79.

[17] Id.

[18] Id. at 1204.

[19] Id. at 1210.

[20] Id. at 1233.

[21] Id. at 1175-26.

[22] Id. at 1226.

[23] Id. at 1225.

[24] Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, J., dissenting).

[25] Id. at 650.

[26] Obergefell v. Hodges, 576 U.S. 644, 644 (2015).

[27] Id. at 644–46.

[28] Id. at 1125-26.

[29] Id. at 647.