The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United Statesthe famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other.

In particular, American marriage law is built on a delicate balance between state authority and those various other dimensions.  For example, the state recognizes the authority of clergy and other private actors to solemnize marriages and give them civil effect.  In doing so, the state powerfully acknowledges that it did not invent marriage out of whole cloth.  At the same time, the state jealously guards its power to regulate marriage even in the face of its religious and other meanings.

Specifically, some states recognize marriage ceremonies as valid under state law even if the participants didn’t comply with state licensing and other formal requirements.  And many states will punish, if only as misdemeanors, officiants and participants at marriage ceremonies  conducted without a license.  And some states do both; that is to say, in some states, entering into a marriage without a license is a (minor) crime, but the marriage itself is (assuming no other problems) entirely valid.

In a real sense, the Utah bigamy statute reflects these same principles.  To be sure, it deals with multiple marriages rather than a single marriage, and the crime is defined as a felony rather than a misdemeanor, and the unlicensed marriage is void rather than valid.  But the basic idea is the same:  the state both recognizes the multiple dimensions of marriage, and asserts its power to regulate the outer limits of the institution as a real fact in the world and not only a set of licensing requirements or tax consequences.

It’s also significant, if only as a social datum, that this delicate status quo in the jockeying between state authority and cultural meaning has at least generally been respected on all sides.  Thus, quite apart from state law, most priests, rabbis, and ministers will, except in extraordinary circumstances, refuse to preside over “merely religious” weddings, even in traditions in which the idea of such purely religious marriages would be theologically coherent.  And I have always found it fascinating that most (albeit not all) gay couples who formalized their relationships even before the spread of same-sex marriages chose to call their rituals “commitment ceremonies” or the like rather than “marriages.”  These would fight for the right to a state-recognized marriage.  But, in the meantime, many of them (again, only many, not all) felt that using the term marriage without the legal recognition of that marriage would (even if they felt married) be to participate in a sort of make-believe.

Thus, if (a big if) the state has a compelling interest in prohibiting polygamy even against religiously-motivated objectors, then it has that same compelling interest whether the parties to the marriage try get a state license or not.  The meaning of marriage is multidimensional, and liable to fracture at any instant, but the state is not overstepping its bounds by trying to keep it tied together.

Should it matter, as the district court thought it did, that most “private” multiple marriages in Utah are religiously-framed (“religious cohabitation” in the court’s lingo)?  Not really.  They could just as easily be secular.  And should it matter that the statute doesn’t touch simple adultery or Hefneresque arrangements?  No.  Adultery betrays marriages, and the state confronts the private and public consequences of such betrayal in various ways.  But adultery does not challenge the meaning of marriage.  And consensual complex arrangements might raise the state’s interest (if any, or such as it is) in private sexual relations, but do not implicate — as the Utah bigamy statute does —  the state’s very different interest in defining the outer limits of a public institution that is a crucial piece of our society’s common cultural capital.

[Updated to fix a slip in wording.]

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