Both polygamy and bigamy are illegal in every state, in spite of the fact that tens of thousands of people in North America are involved in multiple marriages. Polygamy is understood today to mean many marriages or unions entered into at the same time (for instance, one man having several wives); bigamy is smaller in scale, involving one person married simultaneously to two others. To be even more precise, polygynists are people involved in a one-man, several-wives situation; polyandry involves one woman and several husbands.
Polygamy’s Start in the United States
The majority of polygamists in the United States are polygynists and members of Mormon fundamentalist sects, who were and continue to be formally excommunicated from the Church of Jesus Christ of Latter-day Saints (“LDS”). But the LDS was slow to come to the decision to ban polygamy. Joseph Smith, Mormonism’s founder, made polygamy a central feature of his faith, writing in 1831 that a man with ten virgin wives, properly obtained, could not commit adultery. (Doctrine of Covenants, 132: 61-62.) Opposition by the federal government, however, resulted in a 1862 federal law that forbade polygamy; when challenged by the faithful as a violation of the Constitution’s guarantee of freedom of religion, the Supreme Court upheld the law. (Reynolds v. U.S., 98 U.S. 145, 164 (1878).) With reasoning that is still cited today, the Court argued:
- The practice was “odious” and offends society.
- The Constitution’s framers had accepted the English law banning polygamy; therefore they couldn’t have intended for the freedom of religion clause to sanction it, and (most relevant today),
- While the government cannot enact laws that ban beliefs, they can pass laws that forbid actions.
The twentieth century saw several additional federal laws target polygamy and survive court challenge. Switching tactics, Mormons attempted in vain to succeed and establish their own states, safe from the laws of the United States. Finally, bowing to pressure in 1890, the LDS president issued his “Manifesto,” advising Mormons to discontinue polygamy. Utah passed criminal statutes forbidding polygamy, as did Idaho, Oklahoma, and Arizona. (Utah Code Ann. § 76-7-101 (1953); Idaho Code Ann. § 18-1103 (1972); Ariz. Rev. Stat. Ann. § 13-3606 (1978).) Today, virtually every state makes polygamy a crime.
Enforcing Polygamy Laws
Ever since the Short Creek Raid, states have gone after polygamy primarily by focusing their attention on different and independent crimes that arise from the practice, such as:
- Child abuse and statutory rape. Many polygamist wives are underage. When forced into a consummated marriage, they become victims of statutory rape. The conditions in which some child wives live also constitute child abuse. In addition, in order to maintain a high ratio of young women to men, many adolescent boys are cast out of the society, which constitutes abuse and abandonment.
- Welfare fraud. Polygamist marriages typically result in many children, but the wives do not generally work outside the home. In order to feed the family, they apply for welfare, falsely claiming to be in monogamous relationships.
- Incest. The rate of incest among polygamist sects is hard to know, but prosecutions do occur.
- Corrupt business practices. Accounts abound of husbands keeping control of large sums of money while families labor to pay for basic essentials.
Hurdles to Effective Enforcement
The efforts of state and federal law enforcement to enforce anti-polygamy laws, either directly or by focusing on an independent crime (see above), have been hampered by several factors:
- Victims’ reluctance to testify. Children especially are indoctrinated to remain silent, told that they will be taken from their parents if they cooperate with law enforcement.
- No paper trail. Typically, a first marriage will be recorded, but not the many subsequent “spiritual” unions.
- Lack of willing enforcers. Sometimes, the local police are sympathetic, if not more.
- Not a serious offense. Some law enforcement agencies are not willing to spend time pursuing polygamy itself (though they might be more interested in the associated crimes of incest, rape, and abuse). (See “Polygamy As Entertainment,” below.)
Can Polygamy Become Legal in Today’s Climate?
Judges have argued for years that polygamy is abhorrent and unnatural, which justifies making it illegal. The same arguments were advanced for years when upholding laws criminalizing homosexual conduct between consenting adults and same-sex marriage. Yet these two prohibitions fell recently when scrutinized by the United States Supreme Court.
- Same-sex relations. In 2003, the Court held that same sex intimate conduct between consenting adults could not be criminalized. In a passage hailed by polygamists, the opinion’s author, Justice Kennedy, wrote, ““[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Lawrence v. Texas, 539 U.S. 558, 851 (2003).) A dissent written by Justice Scalia darkly argued that the opinion spelled the end of a long-held assumption that certain sexual behavior is “immoral and unacceptable” and can be the rational basis for regulation.
- Same-sex marriage. In 2013, the Court struck down a section of the Defense of Marriage Act that had been used to justify states’ refusal to acknowledge same-sex marriages performed in other states. The problem, said the Court, is that the law identified and made unequal “a subset of state-sanctioned marriages [by] depriv [ing] some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.” Not surprisingly, Justice Scalia pounced, noting that this was the logical result of the Lawrence decision, and predicting that polygamists in states laws outlawing polygamy had just been given a powerful rationale for striking those laws down. (Hollingsworth v. Perry, 133 S. Ct. 2652, 2709 (2013).)
Penalties for Polygamy and Bigamy
Violations of bigamy and polygamy laws are felonies in every state, resulting in prison time and hefty fines. As noted, however, many practitioners are prosecuted instead for satellite crimes, such as statutory rape, welfare fraud, child abuse, and corrupt business practices. These crimes are typically felonies.
Immigration Consequences
The federal government continues to take a dim view of polygamy and bigamy, in spite of the fact that the practice is common in the Islam religion and in many parts of the world. Importantly, the definitions of these terms for immigration purposes differ from those explained above: Bigamy is intentionally being married to more than one person at the same time; polygamy is multiple marriages or unions that is practiced for cultural or religious reasons. In either case, the USCIS will deny citizenship to all practitioners, whether the husband or the “wives.” The USCIS will ask citizen applicants, prior to their swearing-in, whether since their citizenship interviews, they have engaged in polygamy. A “yes” answer will disqualify the applicant; a false “no” might lead to later having their citizenship stripped.
Reporting Polygamy
As you have seen, law enforcement’s response to out-in-the-open polygamy has generally been tepid to nonexistent, in the absence of associated crimes. If you are aware of a polygamous situation that involves those crimes, you can talk to law enforcement, as you would do when reporting any suspicious, illegal activity. Victims of polygamy (children and wives) who believe they have been abused or are otherwise the victims of criminal acts can likewise contact law enforcement and ask for protection.