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L’AMOUR FOR FOUR: POLYGYNY, POLYAMORY, AND THE STATE’S COMPELLING ECONOMIC INTEREST IN

NORMATIVE MONOGAMY

ABSTRACT

Some Americans are changing the way they pair up, but others aren’t satisfied with pairs. In the last few years, while voters, legislatures, and judiciaries have expanded marriage in favor of same-sex couples, some are hoping for expansion in a different dimension. These Americans, instead of concerning themselves with gender restrictions, want to remove numerical restrictions on marriage currently imposed by states. These people call themselves polyamorists, and they are seeking rights for their multiple-partner relationships. Of course, polygamy is nothing new for the human species. Some scientists believe that polygamy is actually the most natural human relationship, and history is littered with a variety of approaches to polygamous relations. Only in recent centuries has society’s preference for monogamy developed, yet that preference has proven robust, as most Western governments vehemently support monogamy as the only marital option.

This Comment explores polygyny and polyamory in the United States and walks through the traditional legal, political, and sociological arguments for and against polygamy. While most polygamy throughout the world stems from cultural or religious bases, this Comment primarily focuses on freely entered-into polygamy. The traditional human rights arguments against cultural- and religious-based polygamy do not necessarily apply to coercion-free polyamory. While some claim the absence of coercion leaves the state without a compelling reason to ban polygamous marriage, this Comment disagrees and finds several compelling reasons for states to favor monogamy.

Alarmingly, in the face of challenges by would-be polygamous couples, states are unable to articulate exactly what interest they have in normative monogamy. Attorneys defending states’ polygamy laws usually rely on historical or administrative reasons, essentially claiming that monogamy should hold because that’s what we have always done, and it would be too hard to change. These typical arguments sell monogamy short. This Comment proposes other, more dynamic reasons that states should continue to support normative monogamy, reasons that have thus far been ignored by the legal

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world. Normative monogamy plays a far greater role in the development of Western society than states have argued. In fact, social science research shows that normative monogamy makes members of society more productive by encouraging long-term investments instead of short-term, mating-focused expenditures of resources. This natural shift in priorities among the monogamous has led to radical advancement in societies that practice normative monogamy. Monogamy’s contribution to society has been largely ignored by the legal world and unargued before courts deciding the merits of laws proscribing polygamy; yet normative monogamy’s role in the advancement of society is the single most compelling interest that states have. This Comment advances that previously ignored interest. INTRODUCTION ............................................................................................ 2095 I. POLYAMORY DELINEATED FROM POLYGYNY .................................. 2099 II. RELIGIOUS-BASED POLYGYNY IN THE UNITED STATES ................... 2103

A. Historical Context: Mormon Polygyny .................................... 2104 B. The State’s Compelling Human Rights Interests ..................... 2108

III. THE STATE’S COMPELLING INTEREST IN BANNING POLYAMORY .... 2113 A. The Weak Interest: Existence of Laws Premised upon

Monogamy ............................................................................... 2115 B. The Unknown Interest: Polygamy’s Link to Crime ................. 2115 C. The Strong Interest: Nurturing Intra-Household

Relationships ........................................................................... 2117 D. The Strongest Interest: Normative Monogamy as an

Economic Stimulant ................................................................. 2120 IV. STANDARD AND TEST FOR STATE BANS OF POLYAMORY ................ 2123

A. Why Reynolds Should Not Control Polyamory ....................... 2124 B. Potential Polyamory Challenges to Polygamy Laws ............... 2126

1. Fundamental Right ............................................................ 2127 2. Suspect Classifications ...................................................... 2130 3. Animus ............................................................................... 2132 4. Rational Basis Review ....................................................... 2132

C. Cohabitation Laws: Brown v. Buhman ................................... 2137 CONCLUSION ................................................................................................ 2138

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INTRODUCTION

Terisa Greenan and her boyfriend, Matt, are enjoying a rare day of Seattle sun, sharing a beet carpaccio on the patio of a local restaurant. Matt holds Terisa’s hand, as his 6-year-old son squeezes in between the couple to give Terisa a kiss. His mother, Vera, looks over and smiles; she’s there with her boyfriend, Larry. Suddenly it starts to rain, and the group must move inside. In the process, they rearrange themselves: Matt’s hand touches Vera’s leg. Terisa gives Larry a kiss. The child, seemingly unconcerned, puts his arms around his mother and digs into his meal.

Terisa and Matt and Vera and Larry—along with Scott, who’s also at this dinner—are not swingers, per se; they aren’t pursuing casual sex. Nor are they polygamists of the sort portrayed on HBO’s Big Love; they aren’t religious, and they don’t have multiple wives. But they do believe in “ethical nonmonogamy,” or engaging in loving, intimate relationships with more than one person—based upon the knowledge and consent of everyone involved. They are polyamorous, to use the term of art applied to multiple-partner families like theirs, and they wouldn’t want to live any other way.1

Terisa, Matt, Vera, Larry, and Scott are hardly alone in eschewing monogamy for polygamy. While polygamy is virtually nonexistent in modern mainstream Western culture, the majority of cultures on earth today still practice polygamy.2 Even in the United States, polygamy may be more common than one might think. A recent study from the University of Michigan found that approximately four percent of the adult population participates in consensually nonmonogamous relationships.3 This means that there may be 10 to 12 million polyamorists4 in the United States,5 which is enough of a

1 Jessica Bennett, Polyamory: The Next Sexual Revolution?, NEWSWEEK (July 28, 2009, 8:00 PM), http://www.newsweek.com/polyamory-next-sexual-revolution-82053. 2 George Peter Murdock, World Ethnographic Sample, 59 AM. ANTHROPOLOGIST 664, 686 & tbl.2 (1957) (“[M]onogamy is characteristic of about 24 percent of the world’s societies, polyandry of 1 percent, and polygyny of 75 percent . . . .”). Amongst primates, monogamy may be even more rare. One study has found that only three percent of primate species are monogamous. See Agustin Fuentes, Re-Evaluating Primate Monogamy, 100 AM. ANTHROPOLOGIST 890, 900 (1998). 3 See Terri D. Conley et al., The Fewer the Merrier?: Assessing Stigma Surrounding Consensually Non-monogamous Romantic Relationships, 13 ANALYSES SOC. ISSUES & PUB. POL’Y 1, 3 & n.1, 12 (2013) (conducting a study of 1,101 sample participants where forty-seven “identified [themselves] as currently engaging in a consensual nonmonogamous relationship”). 4 Polyamory is a subset of polygamy involving multiple males and multiple females. This is to be contrasted with polygyny, which involves multiple females but only one male. For further analysis of the differences between polyamory and polygyny, see infra Part I. 5 Olga Khazan, Multiple Lovers, Without Jealousy, ATLANTIC (July 21, 2014), http://www.theatlantic.com/features/archive/2014/07/multiple-lovers-no-jealousy/374697/. Finding an accurate

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population to lead University of Michigan researchers to conclude that polyamorists’ “sheer numerical size . . . suggests the potential to start a social movement for civil rights.”6

In actuality, the push for polygamist rights in the United States has been underway for more than a century. In 1879, the United States Supreme Court unanimously affirmed the criminal conviction of a practicing polygamist in Reynolds v. United States, declaring polygamy to be “odious.”7 In Reynolds, Chief Justice Morrison Waite described the West’s long history of criminalizing polygamy, dating back to the statute of James I in the Eleventh Century, declaring, “From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society.”8 Since that time, federal courts have consistently rejected constitutional challenges to polygamy laws.9

However, the nineteenth-century Supreme Court cases upholding laws banning polygamy also would have upheld now-arcane laws restricting marriage on divorce and gender bases. For example, in the 1885 case of Murphy v. Ramsey, the Supreme Court upheld the denial of voting privileges to polygamists under the Edmunds Act.10 But in doing so, the Court uses language indicating a much narrower view of marriage:

[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth . . . than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and

number of polyamorous relationships in the United States has proven to be a difficult task for researchers, due in part to the newness and fluidity of the concept. Other research has suggested that the number is far smaller, at perhaps 500,000 in the United States. See Bennett, supra note 1. 6 Conley et al., supra note 3, at 3. 7 98 U.S. 145, 164 (1879). 8 Id. at 165. 9 See, e.g., Davis v. Beason, 133 U.S. 333, 334, 341 (1890) (unanimously rejecting a First Amendment challenge to a law requiring voters to swear they were not bigamists or polygamists by stating that “[f]ew crimes are more pernicious to the best interests of society” than polygamy); Murphy v. Ramsey, 114 U.S. 15, 35, 37 (1885) (rejecting challenge to law prohibiting cohabitating polygamists from voting); Potter v. Murray City, 760 F.2d 1065, 1070–72 (10th Cir. 1985) (holding that Utah is justified in banning plural marriage because of its compelling interest in protecting monogamous marriage); see also Romer v. Evans, 517 U.S. 620, 650 (1996) (Scalia, J., dissenting) (“[T]he proposition that polygamy can be criminalized . . . remains good law.”); cf. Brown v. Buhman, 947 F. Supp. 2d 1170, 1217–18 (D. Utah 2013) (holding that Utah “has an important interest in regulating marriage, but only insofar as marriage is understood as a legal status,” thus overturning Utah’s criminalizing of polygamy (quoting State v. Holm, 137 P.3d 726, 771 (Utah 2006) (Durham, C.J., concurring in part and dissenting in part)) (internal quotation mark omitted)). 10 114 U.S. at 35, 37.

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one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.11

Despite the Murphy Court’s sanctioning of legislation requiring “union[s] for life,” we now conceive of divorce as being something akin to a fundamental right.12 And, despite Murphy’s statement that marriage is between “one man and one woman,”13 nearly all legal prognosticators agree that the Supreme Court will soon declare same-sex marriage to be a right.14 Are Murphy’s statements condemning polygamy bound to suffer the same fate? This Comment attempts to answer that question by exploring polygamy and polygamy laws in the United States.

An interesting, yet often overlooked, group of American polygamists consists of those who seek relationships not because of religious or cultural reasons but because of a personal desire to have a nonmonogamous relationship. The bulk of American polygamy law is intertwined with the First Amendment’s Establishment Clause rationale and polygamy’s base presence in several faiths. In Reynolds and Murphy, for example, the polygamy law challengers were Mormons.15 In fact, many nineteenth-century polygamy laws, including the Edmunds Act, were targeted at members of the Mormon Church.16 Today, the usual polygamy tale involves not only Mormons but also Islamic and African immigrants who carried their polygamous marriages with them.17 Thus, most laypersons (and most legal scholars, according to one

11 Id. at 45. 12 See, e.g., Boddie v. Connecticut, 401 U.S. 371, 372, 382–83 (1971) (holding that the Due Process Clause guarantees ability to dissolve marriages without regard to ability to pay for fees and costs associated with divorce proceedings). See generally LESLIE JOAN HARRIS, JUNE CARBONE & LEE E. TEITELBAUM, FAMILY LAW 270 (5th ed. 2014) (“In the 20-year period between 1965 and 1985, every state passed legislation recognizing some form of no-fault ground for divorce.”). 13 114 U.S. at 45. 14 See, e.g., Keith E. Sealing, Polygamists Out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause, 17 GA. ST. U. L. REV. 691 (2001) (citing various scholars who agree that same-sex marriage is a right). 15 See 98 U.S. 145, 164 (1879); see also Murphy, 114 U.S. at 28. 16 Shayna M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 CORNELL J.L. & PUB. POL’Y 101, 127–34 (2006). For an additional overview on this point, see generally Mary K. Campbell, Mr. Peay’s Horses: The Federal Response to Mormon Polygamy, 1854–1887, 13 YALE J.L. & FEMINISM 29 (2001); Elizabeth Harmer-Dionne, Note, Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy as a Case Study Negating the Belief-Action Distinction, 50 STAN. L. REV. 1295, 1319– 40 (1998). 17 See Sealing, supra note 14, at 692–94.

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professor)18 assume the discussion about polygamy interests only those whose religion teaches polygamy, all of whom live on the fringe of society, far away from most good, law-abiding, taxpaying citizens.

But, as Terisa, Matt, Vera, Larry, and Scott show, many polygamous relationships are developing not through culturally or religiously engrained teachings but through natural feelings of love for multiple persons.19 Yet most discussions on the legality of polygamous marriages are based solely on the Free Exercise Clause and result from polygamy’s historic ties to religion.20 This Comment claims that the most worthy challenge to monogamy laws will come from coercion-free polygamous arrangements.

To arrive at this conclusion, this Comment must first consider conventional legal arguments about religious-based polygyny. Part I of this Comment defines and analyzes the various types of polygamous relationships, as well as the law’s historic treatment of those relationships in America, and will briefly review the scant literature on the rights of polygamous individuals and groups.

Part II then considers the state’s interest in regulating religious-based polygamy. It will also outline the state’s most compelling interest in regulating marriage, namely to protect potential victims from harm. The flood of information over the past two decades presents a new compelling state interest with regard to religious-based polygamy, enough to seemingly defeat any Free Exercise Clause challenge. Part II concludes, however, that the harm present in religious-based polygamy, which is used as the basis to defeat these free exercise claims, is different from the potential harm in coercion-free polyamory.

Part III seeks to determine whether states have a compelling interest in restricting marriage to two people even in the absence of coercion. In undertaking this analysis, this Comment looks to relevant social science to consider the prudence of favoring monogamy. Ultimately, Part III determines

18 Sigman, supra note 16, at 102 (“Everything judges, legislators, policymakers, and legal scholars think they know about polygamy is based on faulty assumptions and presumptions, conceptions and misconceptions.”). 19 See Bennett, supra note 1. 20 The debate on religion-based polygamy will be discussed in Part II and mainly involves competing concepts of the right to freely exercise one’s religion and the state’s compelling interest in mandating two-person marriages. However, as will be discussed in Part II, the state also has a compelling interest in preventing potential coercion and harm to women and children that is ever-present in religious-based polygamy. For this reason, this Comment argues that the coercion-free structure of polyamory will have a better chance at overturning polygamy laws in the future.

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that, even without the coercion frequently found in religious-based polygamy, states still have compelling reasons to favor monogamy and disallow polygamy. The strongest of these reasons is the strong link between economic productivity and normative monogamy.

Part IV then takes up the task of determining how the law should analyze polygamy that is free from coercion and religious interests. This Part explores constitutional law sources to determine how a challenge to a state’s polygamy ban might proceed. In addition, Part IV looks at states’ cohabitation laws that seek to prohibit polygamous couples from living together despite marital status. This Comment then concludes by suggesting that proponents of legalized polygamy would be best served pursuing their objectives in the legislative arena, rather than the judicial arena. Even then, normative monogamy’s influence on productivity and societal progress cannot be ignored as a compelling interest in maintaining the relationship structure.

I. POLYAMORY DELINEATED FROM POLYGYNY

Before undertaking an analysis of the legal differences between the various forms of polygamy, it is necessary to actually define those forms. Given the shifting interests the government may have in banning a certain type of plural marriage, understanding the construction of certain arrangements becomes an essential prerequisite to our study. Moreover, the academic study of plural marriage is quite new, and therefore different scholars have used different words to describe plural arrangements. Thus, this Part seeks to clarify the terms used in the later Parts of this Comment.

“Polygamy” is the broad word that encompasses all arrangements of marriage between more than two persons at the same time.21 Historically, jurists have lumped most instances of plural marriage into the category of “polygamy” and treated them essentially the same under the law. “Polygyny” is the paradigmatic construction of polygamy in Western culture, describing the arrangement of a man having two or more wives.22 Polygyny is exponentially more common than other forms of polygamy and has been rationalized by some as based on gender differences in the procreation

21 JOHN WITTE, JR., THE WESTERN CASE FOR MONOGAMY OVER POLYGAMY 26–27 (2015). 22 Id. at 28 (explaining the etymology of polygyny as coming “from the Greek poly for many and gyne for wife or woman”). Subsets of polygyny are bigamy, which means marriage to two persons; trigamy, meaning marriage to three persons; etc. Id. “Polygyny” is to be compared with “polyandry,” which is the historically rare instance of a woman having two or more husbands. Id. at 26–28.

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process.23 Regardless of rationale, history shows that polygyny, a man taking multiple wives, is the most common form of polygamy.24

“Polyamory,” on the other hand, describes all manner of plural spousal and sexual arrangements.25 The way its advocates use the term today, “polyamory” means the practice “of having more than one sexual [or, for some, romantic] loving relationships at the same time, with the full knowledge and consent of all partners involved.”26 Terisa, Matt, Vera, Larry, and Scott’s relationship, as described in the Introduction, is an example of the modern polyamorous relationship. Polyamorous relationships are between three or more knowing and consenting persons, with the full group participating in romantic relations together, or just a subset of the group engaging in romantic relations.27

The practice of polygyny has been criticized for centuries and for a myriad of reasons. Despite Thomas Aquinas’s acknowledgement of the natural place of polygyny, he argued against its practice because of its harmful effects on women and children.28 “‘This is not marriage, but servitude,’ said Aquinas.”29 It betrayed the fidelity and mutuality of marriage and altered the fundamental bond between children and parents.30 Later scholars added to the list of polygyny critiques, including biblical,31 equality,32 and feminist33 arguments for monogamy. The essential thread in polygyny’s historical criticism has been its unjust and unequal result of treating women as something less than men. When polygyny becomes the dominant model of marriage in a society,

23 See id. at 192. Thomas Aquinas believed that, because men bond with children only if they are certain of their paternity, polygyny but not polyandry was a natural form of procreation. Id. at 170–76. 24 See Sarah L. Eichenberger, Note, When for Better is for Worse: Immigration Law’s Gendered Impact on Foreign Polygamous Marriage, 61 DUKE L.J. 1067 (2012) (discussing the various constituencies of polygamy). Indeed, most of the religious-based polygamy occurs in the polygyny form. “An estimated 5.8 percent of Hindu marriages are polygamous, and an estimated 5.7 percent of Muslim marriages are polygamous.” Id. at 1069 n.12. 25 WITTE, supra note 21, at 27. 26 Ann E. Tweedy, Polyamory as a Sexual Orientation, 79 U. CIN. L. REV. 1461, 1479 (2011) (alteration in original) (quoting Hadar Aviram, Make Love, Not Law: Perceptions of the Marriage Equality Struggle Among Polyamorous Activists, 7 J. BISEXUALITY 261, 264 (2008)). 27 Id. 28 WITTE, supra note 21, at 170–71. 29 Id. at 173. 30 Id. 31 Id. at 255. Calvinist jurist Theodore Beza declared polygamy to violate God’s commandments against adultery, theft, false testimony, and coveting at once. Id. 32 Id. at 455. English philosopher John Locke said that polygyny violated the natural-born equality of men and women. Id. 33 Id. at 371. Eighteenth-century women’s rights advocate Mary Wollstonecraft said that polygyny forced women to compete with other women, especially younger women, for the love of their husbands. Id.

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undesirable results occur that harm women and children. This is especially concerning when women have no alternative choice in their marital arrangements, a concern that continues with polygyny in America today.34

Polyamory, on the other hand, is largely seen to be free of the traditional concerns of polygyny because of its participants’ choice to engage in the practice for reasons other than religion or culture.35 Polyamory is very much the modern descendent of the 1960s and 1970s Free Love movement, which opposed marriage as a form of social and financial bondage.36 This movement declared that marriage was a natural organization that should be outside the scope of legal regulation, advocating instead for a new structure to accomplish both love and propagation of the human race.37 Thus, the Free Love movement sought to break from government’s mandate of monogamous marriage because of concerns for both equality and love.

Modern-day polyamory is justified by the same basic thinking. One advocate claims that polyamory governs itself by five main principles: “self-knowledge, radical honesty, consent, self-possession, and privileging love and sex over other emotions and activities such as jealousy.”38 Just as the leaders of the Free Love movement viewed marriage as producing unequal

34 See infra Part II for a discussion of polygyny’s practice and regulation in the United States. 35 Compare Libby Copeland, Is Polygamy Really So Awful?, SLATE (Jan. 30, 2012, 5:18 PM), http://www.slate.com/articles/double_x/doublex/2012/01/the_problem_with_polygamy.html (disapproving of polygyny as a societal tool of inequality), with Libby Copeland, Making Love and Trouble: The Surprisingly Women-Friendly Roots of Modern Polyamory, SLATE (Mar. 12, 2012, 12:51 PM), http://www.slate.com/articles/double_x/doublex/2012/03/polyamory_and_its_surprisingly_woman_friendly_r oots_.html (approving of polyamory as a tool of feminist empowerment). The logic behind this Comment’s assumption, that religious- and cultural-based polygyny have elevated risks of coercion, is based on the fluid notion of marital choice. Polygynous religions and cultures do not provide women with a choice between polygyny and monogamy. Instead, women refusing to participate in polygyny often have no monogamous option without leaving their religion or culture. These pressures subtly coerce women into accepting polygyny and the potential human rights abuses that accompany polygyny because these women value their religion or culture more than monogamy. These pressures are not felt by women engaging in polyamory, and thus this Comment considers polyamory to be less coercive than polygyny. 36 See generally Alexandra Murray, Note, Marriage—The Peculiar Institution: An Exploration of Marriage and the Women’s Rights Movement in the 19th Century, 16 UCLA WOMEN’S L.J. 137, 151–56 (2007) (describing the ideas of the Free Lovers in the nineteenth century). 37 Id. at 153–56. Victoria Woodhull, one of the leaders of the Free Love movement, declared that marriage would be superseded “in the near future, by some kind of socialistic arrangement” because marriage was the equivalent of slavery Id. at 153–54. Woodhull also believed that child rearing should be the responsibility of the state instead of women. Id. at 154. 38 Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277, 283 (2004).

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rights for women in the mode of slavery,39 polyamorists promote their relationships’ endorsement of values like consent and self-determination. In a way, polyamory is the result that Free Love movement leaders would have constructed in the nineteenth century as a model of equality and love.

There has been far less written about polyamorous relationships for two reasons. First, there simply are not the inherent human rights concerns for women that are present in polygyny.40 Modern practitioners of polyamory choose that relationship because of their desire for its tenets. They choose polyamory for their love of multiple persons, not to meet the expectations of society or the rules of a deity. Therefore, there is less concern for the rights of these polyamory choosers, and thus their situation is written about less in academic literature and popular media.

Second, practitioners of polyamory have yet to push for extensive legal rights. In the vein of the Free Love movement, polyamorists are weary of the necessity of marriage as an institution. Those who are married have a single spouse, and the couple participates either individually or collectively with others in a romantic relationship, with full knowledge and consent, but they do not marry the other participants in the relationship, at least not in a legally recognized way.41 Thus, so long as participants in polyamorous relationships are not petitioning the state for recognition of their relationship as a marriage, and the state is not pursuing criminal actions against polyamorous participants, then polyamory is in a sort of legal holding pattern, just waiting for its chance to land.42

But polyamory could see its challenge in court in the coming years,43 and it is easy to imagine the potential scenarios. Taking the polyamorous relationship from the Introduction as an example, there are several reasons one or more

39 Murray, supra note 36, at 153–54 (quoting free-love leader Victoria Woodhull as comparing marriage to slavery and predicting the downfall of marriage in the same way that “thinkers” predicted the downfall of slavery during the civil war). 40 See supra note 35. 41 Cf. Angi Becker Stevens, My Two Husbands, SALON (Aug. 4, 2013, 8:00 PM EDT), http://www.salon.com/2013/08/05/my_two_husbands/ (describing the author’s polyamorous relationship with her husband of seventeen years and her boyfriend of two years and noting that the author plans a non-legal wedding ceremony with her boyfriend in the future). 42 But see infra Part IV.C (discussing cohabitation laws). 43 In a Canadian challenge to polygamy laws, many motions came not from polygyny groups, but from polyamorous groups. Andrew Brown, Is Monogamy the Root of all Equality?, GUARDIAN (July 26, 2010, 7.00 EDT), http://www.theguardian.com/commentisfree/andrewbrown/2010/jul/26/religion-polygamy-monogamy- psychology-crime.

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members may sue for recognition of rights from the state. First, what if one of the five members died without a will? Would Washington’s intestate succession laws recognize one of the deceased’s partners? Or would the deceased’s property go to some relative? In the former scenario, a non-inheriting partner may decide to sue for recognition of beneficiary rights. In the latter scenario, any or all of the partners may sue for recognition of beneficiary rights. Either would result in the state needing to decide whether the polyamorous partner qualified as an eligible relationship for beneficiary rights. Second, if Vera dies, who gets custody of Vera’s son? Perhaps one of the men in the relationship is the son’s biological father, but that father would still need to take legal action to obtain custody. Third, what if none of the men are the son’s biological father? Would one of the people in the relationship be the best custodian of the son in the eyes of the court? Fourth, what if a child-services agency decides that the polyamorous home is not a suitable venue for raising a child? Surely, then, the polyamorous participants would sue to regain custody of their son. More and more examples exist, such as employment benefits and health insurance benefits, as well as the possibility of the state pursuing criminal sanctions under anti-polygamy laws. The stage is therefore set for a legal challenge to the state’s right to regulate the numerosity aspect of marriage for polyamorous relationships.

II. RELIGIOUS-BASED POLYGYNY IN THE UNITED STATES

The state’s first inclination, upon legal challenge by a polyamorous group seeking legal recognition, may be to argue the case as though polyamory is indistinguishable from traditional polygyny. This would be a mistake, for the reasons discussed below. This Part explains why polyamory and polygyny require two different analyses by the courts. To arrive at this understanding, this Part begins in section A by examining Mormon challenges to polygamy laws, which have been the emblematic challenges to polygamy in the United States. Section B then considers the more recent trend of practicing polygamists immigrating to the United States and maintaining their polygamy. Section C briefly touches on the legal issues that these types of polygyny raise, primarily examining the state’s human rights concerns in banning polygyny. Section C then espouses this Comment’s opinion that human rights concerns should trump any Free Exercise Clause concerns and that the state should continue to prevent cultural- and religious-based polygyny in furtherance of concerns for women and children. This point dovetails with the conclusion that polygamy laws would face a very different challenge, with potentially different

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results, from coercion-free polyamory marriage, which will be discussed in Parts III and IV.

A. Historical Context: Mormon Polygyny

As briefly discussed in the Introduction, the Mormon Church’s former practice of polygyny as a dogmatic church doctrine underscores polygamy law in the United States. The United States’ treatment and opinion of Mormons, both collectively and individually, were and are a driving force behind the banishment of plural marriage across the country and should thus be discussed as part of the greater narrative on the future of plural marriage.

Joseph Smith, the man who started the Mormon Church, taught that mankind could achieve godhood through their posterity on earth and that polygyny was a central part of the pursuit of godhood.44 Men who rejected polygyny, by contrast, were forfeiting godhood and allowing damnation.45 Mormons initially practiced polygyny in secret, until Brigham Young adopted polygyny as part of the Church’s scriptural canon in 1852.46 Following the Mormon Church’s public acknowledgement of its stance on polygyny, significant persecution occurred.47 In 1856, the newly formed Republican Party ran on a platform of eradicating the “twin relics of barbarism”: polygamy and slavery.48 In the following decades, Congress passed a series of bills targeted at ending the Mormon practice of polygyny.49

It is against this backdrop that the United States Supreme Court decided Reynolds v. United States and Murphy v. Ramsey, which were briefly discussed in the Introduction to this Comment. In Reynolds, Brigham Young’s personal secretary, George Reynolds, agreed to challenge the Morrill Anti-Bigamy Act.50 In the challenge, Reynolds testified that he engaged in plural marriage because it was the “Law of the Lord,” an affirmative obligation to please God.51 Nevertheless, Reynolds was twice convicted,52 and the Supreme Court

44 WITTE, supra note 21, at 430; Harmer-Dionne, supra note 16, at 1320. 45 Harmer-Dionne, supra note 16, at 1320. 46 WITTE, supra note 21, at 430; Harmer-Dionne, supra note 16, at 1320–21. 47 WITTE, supra note 21, at 430–31; Harmer-Dionne, supra note 16, at 1322–23. 48 Harmer-Dionne, supra note 16, at 1322. 49 WITTE, supra note 21, at 430–31; Harmer-Dionne, supra note 16, at 1322–23. 50 Emily J. Duncan, Article, The Positive Effects of Legalized Polygamy: “Love Is a Many Splendored Thing,” 15 DUKE J. GENDER L. & POL’Y 315, 318 (2008); Harmer-Dionne, supra note 16, at 1325. 51 Harmer-Dionne, supra note 16, at 1325. 52 The initial conviction was overturned on jury irregularities. Id.