The Legal Consequences Of Polygamy
What Is Polygamy?
“Polygamy” refers to the practice of having more than one spouse. The terms stem from the Latin roots polys—meaning “many”—and gamos—meaning “marriage.” The term broadly encompasses the concept of a woman marrying more than one husband (polyandry) or a man marrying more than one wife (polygyny).
The practice of polygamy is generally frowned upon in most countries. Those countries that legally recognize polygamy have populations where its practice is part of organized religion, namely denominations of Islam. However, other religions also recognize polygamy, such as small, unofficial sects of Mormonism. Notably, the official stance of the Church of Jesus Christ of Latter-day Saints (LDS Church)—the mainstream Mormon religion officially recognized in countries throughout the world—does not promote or condone polygamy.
Most countries that accept some form of polygamy limit legal recognition to the practice of polygyny but prohibit polyandry. The cultural practice of polyandry can be observed in cultures in Tibet, Nepal, and Northern India and is connected to systems of inheritance and land ownership.
Polygamy in any form is generally prohibited throughout the United States, warranting criminal and civil legal ramifications with varying degrees of severity.
Family Law Implications of Polygamy
Marriage, the divorce process, and other matters of family law are governed by state law. All U.S. jurisdictions prohibit polygamy by invalidating marriages involving more than two spouses. State laws against bigamy—getting married to someone while still legally married to another person—are usually grounds for an annulment.
Similar to divorce, an annulment results in the termination of a marriage. However, unlike divorce, a successful action requesting for an annulment can render the marriage null and void from its alleged inception.
Annulment actions are available for certain, extreme situations, including:
- Bigamy
- Incest
- One or both parties haven’t reached the legal age to marry
- Fraud, duress, and undue influence
Because the facts supporting an annulment are typically sufficient to treat the parties as if they never married under the law, issues that arise from the legal duties of a spouse in divorce cases may not apply to annulment proceedings in certain situations. This is because establishing a legally valid marital relationship is required to trigger certain marital duties, such as the duty to pay child and spousal support.
However, in some cases, the parties may be entitled to forms of legal relief similar to those provided in divorce cases. Agreements between the “spouses” regarding certain marital duties might serve as a basis for legal action for certain remedies regarding contracts.
Criminal Prohibitions on Polygamy
Virtually every state has outlawed the practice of polygamy as an offense punishable pursuant to applicable criminal laws. Under California law, the act of bigamy is among the crimes listed together with other “crimes against nature,” and is punishable by up to $10,000 in fines and a jail sentence of no more than one year in year. California Penal Code § 281 defines “bigamy” to mean “having a spouse living, who married or enters into a registered domestic partnership with any other person…”
Since the 19th century, the practice of polygamy in the United States was subject to legal prohibitions, namely from the federal government. In 1862, President Abraham Lincoln signed the Morrill Anti-Bigamy Act into law, prohibiting the practice of bigamy. At that point, many Republican politicians campaigned on the idea that polygamy was the only other moral wrong next to slavery worthy of abolishing
.Then in 1882, President Chester A. Arthur signed the Edmunds Anti-Polygamy Act which reinforced the Morrill Anti-Bigamy Act by classifying polygamy as a felony and establishing “unlawful cohabitation” as a misdemeanor offense which barred unmarried couples from living together. This made catching more unofficial polygamous acts easier by eliminating the need to prove the existence of a legal marriage.
These laws were specifically directed at the Mormon Church, which had come into conflict with the federal government when Utah was still a state territory. The Anti-Bigamy Act of 1862 also capped all church-owned property in the federal territories to $50,000—virtually all of which was attributed to the Mormon Church.
By 1887—only five years after passage of the Anti-Polygamy Act—the federal government passed a law aimed at disbanding the Mormon Church and seizing its property.
Constitutional Issues
Ever since the United States government issued the first federal prohibitions on the practice of polygamy—modernly re-termed by the LDS Church as “plural marriage”—proponents of the practice have tried to argue that such prohibitions amounted to an unconstitutional infringement of their right to the free exercise of religion under the First Amendment to the United States Constitution.
One of the first Supreme Court cases pitting freedom of religion against laws banning polygamy was Reynolds v. United States in 1878. In response to that argument, the Supreme Court held that the federal ban on polygamy did not qualify as an infringement on the religious rights of members of the Mormon Church, citing that the government was free to ban acts that coincided with religious practices without violating the First Amendment.
Today, some people claim that banning polygamy violates the Equal Protection Clause of the Fourteenth Amendment. Arguments in support of polygamy point that the fundamental right to marry as interpreted by the Supreme Court in the 2015 Obergefell v. Hodges case provides the constitutional basis for decriminalizing plural marriage.
This idea was mentioned in the dissenting opinion for Obergefell, questioning why the right to marry should be afforded to LGBT couples without extending it to religions that practice some form of plural marriage.
