Polygamists Out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause

• Citation: Vol. 17 No. 3
• Publication year: 2010

Polygamists out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause

Keith E. Sealing

Introduction

The Romer v. Evans[1] colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy[2] cases to the more current debate over gay rights and same-sex marriages[3] was of more than academic interest to the estimated 25,000 to 50,000 Mormon[4] practitioners of polygamy, as well as the nearly 1,000 Christian polygamists,[5] and Islamic[6] and African[7] practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era.

Part I of this Article first discusses at the Romer v. Evans colloquy.[8] Part II briefly explores the history of the Mormon Church including its adoption and later repudiation of polygamy.[9] Part II also examines non-Mormon polygamy.[10] Part III considers the scriptural basis for polygamy.[11] Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent: Reynolds v. United States,[12] Murphy v. Ramsey,[13] Davis v. Beason,[14] and Late Corp. of the Church of Jesus Christ of Latter-day Saints v. United States.[15] This Part also discusses a modern polygamy case, Potter v. Murray City.[16] Part V explores modern Free Exercise Clause jurisprudence: Sherbert v. Verner,[17] Employment Division, Department of Human Resources of Oregon v. Smith,[18] and Church of the Lukumi Babalu Aye v. City of Hialeah.[19] Part V also considers Congress' counterstroke to Smith, the Religious Freedom Restoration Act (RFRA), which was subsequently invalidated in City of Boerne v. Flores.[20]

Part VI surveys today's diverse religious landscape[21] and argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim.[22] Second, under Church of the Lukumi Babalu Aye v. City of Hialeah,[23] the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.[24] Furthermore, the prohibition against polygamy, a practice that is required of those who desire to ascend to heaven under original Mormon teachings, is a substantial burden on religion.[25] Following the breakdown of the traditional family as the sole child-rearing unit, there is no compelling government interest in prohibiting polygamy.[26] The Article concludes that opponents of same-sex marriages are wrong to rely on the nineteenth century anti-Mormon cases for support because when those cases are re-examined in a twentieth century context, they must be held unconstitutional.

As a final introductory note, the genesis of this Article lay in a desire to repudiate Justice Scalia's reliance upon the nineteenth century polygamy cases in his attack on Justice Kennedy's majority opinion in Romer v. Evans.[27] However, in making that attempt, the Article raises other troubling issues. The vast majority of those known as polygamists—both of Mormon and non-Mormon origin—actually practice polygyny, one man with multiple wives, while polyandry, one wife with multiple husbands, is rare and often condemned.[28] Even discounting for a degree of anti-Mormon hysteria—tales of incest, underage girls forced into polygamy with older men, slave-like situations for unwilling plural wives—the typical polygamist family still seems like a male sexist's dream world. Indeed there is much about polygamy that offends modern feminist theory. For example, early Mormon polygamists believed that women could only reach heaven through their husbands, a belief that encouraged plural marriage to the reluctant but virtuous person. Certainly, the polygamists are not the only group whose religious beliefs are potentially harmful to women. Many Christian groups limit women's roles in the clergy. In addition, Islamic treatment of women is offensive to feminists, and suttee[29] is perhaps the most offensive religiously based concept imaginable.

Perhaps the lesson to be learned is that the Free Exercise Clause should not be the weapon used to attack polygamy. Rather, the Free Exercise Clause needs to be read, not narrowly as it was in Smith, but broadly as it was in Church of the Lukumi Babalu Aye so as to protect unpopular, non-mainstream practices. In any case, the lessons of Reynolds and the other polygamy cases, regarding both the Free Exercise Clause and the more current dispute over same-sex marriage, must be re-examined despite their more troubling implications.[30]

I. The Romer v. Evans Colloquy

In Romer v. Evans,[31] Justice Kennedy affirmed the opinion of the Colorado Supreme Court[32] that Colorado's Amendment 2, which declared all existing local legislation providing protections to homosexuals unconstitutional and required a constitutional amendment to adopt any new local legislation protective of gays, violated the federal Constitution.[33] Justice Kennedy found that Amendment 2 failed even the rational relationship test because it imposed "a broad and undifferentiated disability on a single named group" and seemed "inexplicable by anything but animus toward the class."[34]

Justice Kennedy, although writing the majority opinion, was actually responding to Justice Scalia's dissent, which discussed Davis v. Beason.[35] Justice Kennedy noted that to the extent Davis held that a person may be denied the right to vote because he advocated a certain practice, Davis had been overruled by Brandenburg v. Ohio.[36] Further, to the extent that Davis stood for the proposition that a convicted felon may be denied the right to vote, "its holding is not implicated by [the Court's] decision and is unexceptionable."[37] Most importantly, Justice Kennedy argued: "To the extent [Davis] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome."[38] Justice Kennedy did not specify why strict scrutiny was appropriate. Clearly, polygamists as a group were not per se entitled to strict scrutiny. Had Justice Kennedy adopted the Colorado Supreme Court's reasoning, one could infer that Mormon polygamists were entitled to strict scrutiny because they had been denied the right to fair participation in the political process.[39] We are left with the conclusion that strict scrutiny would be appropriate because voting is a fundamental right. Overall, Justice Kennedy did little to rebut Justice Scalia's argument that the Mormon polygamy cases support the constitutionality of Colorado's Amendment 2.[40]

Justice Scalia's arguments in reliance upon Mormon cases came in the context of a harshly critical dissent in which he challenged that "the Court has mistaken a Kulturkampf for a fit of spite."[41] Justice Scalia wrote: "[T]here is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it."[42]

Justice Scalia assumed that the anti-polygamy provisions in the Utah,[43] Oklahoma,[44] Idaho,[45] and New Mexico[46] state constitutions are constitutional.[47] Justice Scalia then wrote: "The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."[48]

Of course, Justice Scalia's aim was not to provide support for polygamists, but rather to discredit the majority opinion with a parade of "horribles." However, Justice Scalia succeeded in removing the anti-polygamy provisions he cited from the generally applicable law of his heavily criticized Smith holding, and by showing that the provisions were aimed against a particular group, placing them in the Church of the Lukumi Babalu Aye category.

Turning to Davis v. Beason,[49] Justice Scalia described the Idaho provision at issue in that case as depriving polygamists of the ability to achieve their political goal of making polygamy legal by effectuating a state constitutional amendment. Specifically, by depriving polygamists of the power to vote, they were prevented from voting to amend their state's constitution.[50] Further, the fact that one could be denied the right to vote because he had been convicted of the felony of polygamy begs the question of whether making polygamy a felony withstands constitutional scrutiny. However, according to Justice Scalia, it is still good law that polygamy can be criminalized.[51] Further, Justice Scalia explained that the Beason Court considered and rejected the Equal Protection Clause argument.[52] Finally, Justice Scalia noted that Justice Kennedy had cited Beason with approval in his 1993 Church of the Lukumi Babalu Aye opinion.[53] Thus, Justice Scalia concluded, the Court could only reconcile the two cases if the perceived social harm of polygamy was a legitimate government concern and the perceived social harm of homosexuality was not.[54]

Justice Scalia then concluded his review of the polygamy analogy with a lengthy quote from Murphy v. Ramsey,[55] which is a paean to heterosexual monogamy and which suggests that adherence to monogamy is a necessary precursor to worthiness for admission to the Union as a state.[56] The quote demonstrated to Justice Scalia the differing levels of animosity the Court would allow on the issues of polygamy...