What just happened?

Earlier this week the Utah Senate unanimously passed a bill that effectively decriminalizes polygamy. The bill, which will be taken up by the state’s House of Representatives, would make polygamy an infraction, amending the current penalty punishable by up to five years in prison. As the Associated Press points out, while mainstream members of the Church of Latter-day Saints abandoned the practice of polygamy in 1890, an estimated 30,000 people living in polygamous communities follow teachings that taking multiple wives brings exaltation in heaven.

What is polygamy?

Polygamy is the practice or custom of having more than one wife or husband at the same time. Polygamy has historically taken two forms, polyandry and polygyny. Polygyny is the state or practice of having more than one wife or female mate at a time, while polyandry is the practice of having more than one husband or male mate at one time.

Isn’t polygamy illegal in the United States?

Since the Edmunds Anti-Polygamy Act of 1882, bigamy has been a federal crime under U.S. law. Bigamy is a crime that occurs when a person is married to two different people at the same time as part of two different marriage contracts. If a person is married, it is a requirement for him or her to have the marriage dissolved through death, annulment, or divorce before he or she can legally enter into a new marriage. If a person intentionally fails to have the first marriage dissolved before entering into a new marriage contract, he or she can be charged with bigamy.

While bigamy is technically still a crime in the United States, polygamy is, in essence, already decriminalized. In certain states, a couple could be legally married (husband/wife, husband/husband, or wife/wife), be cohabiting with another married couple, and claim that all four are married to each other (though not legally). Such arrangements are protected under the Supreme Court ruling Lawrence v. Texas (2003), in which the court claimed, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” As Justice Antonin Scalia recognized in the minority opinion, the Lawrence decision could be used to legalize bigamy and would be a “massive disruption of the current social order.”

In the on the ruling in the case of Obergefell v. Hodges (2015), which legalized same-sex marriage in all 50 states, Chief Justice Roberts predicted that the reasoning of the Court’s majority allowing would lead to the legalization of polygamy. As Roberts wrote in the minority opinion:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?

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