Why is Polygamy Illegal?

By Wendy Kaminer,

        Why is polygamy illegal?  Why don’t Mormons have a First Amendment right to enter into multiple marriages sanctified by their church, if not the state? There’s a short answer to these questions but not a very good one: Polygamy is illegal and unprotected by the Constitution because over 100 years ago, the Supreme Court decided it was “an offence against society.”   In Reynolds v U.S., the Court upheld the criminal conviction of a man convicted of taking a second wife in the belief that he had a religious duty to practice polygamy, a duty he would violate at risk of damnation.  The Court compared polygamy to murders sanctified by religions belief – human sacrifice or the burning of women on their husbands' funeral pyres.

        Even in Victorian American, this comparison made little sense.  (Most Victorian women, I suspect, would have chosen polygamous marriages over death by burning.)  Today, the Court's analogy is as anachronistic as a ban on adultery.  What’s the difference, after all, between an adulterer and a polygamist?  And if it’s not illegal for a married man to support a girlfriend or two and father children out of wedlock with them, how can it be illegal for him to bind himself to them, according to the laws of his church?  What’s the moral and practical difference between a man who maintains multiple families without the approval of any church and a man who maintains multiple families with his church's approval?

        "Polygamy encourages child abuse," people say, citing instances involving the marriage of older men to underage girls.  Assuming that’s true, it still doesn’t justify categorical prohibitions on polygamy.  Alcohol consumption may encourage sexual violence too.  Should we prohibit its use, as members of the Women’s Christian Temperance Union demanded over 100 year ago? Or should we prosecute alcohol fueled rape cases whenever we find them?

        All things considered, it seems impossible to enforce polygamy prohibitions fairly and indiscriminately, without also enforcing archaic laws against adultery; and there’s no reasonable basis for banning polygamy, especially when it’s considered a religious obligation.  No matter how distasteful some may find it, polygamy is simply not the equivalent of human sacrifice, and constitutional rights should not be determined by judicial hyperbole.

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