POLYGAMY

The offense of willfully and knowingly having more than one wife or husband at the same time. The offense of willfully and knowingly entering into a second marriage while validly married to another individual is bigamy.

The Crime

The law in every state prohibits a man or a woman from being married to more than one living person at a time. The crime of having more than one current spouse is called either bigamy (having two spouses) is a subset of the crime of polygamy (having more than one spouse), and the law makes no practical distinction between the two. Even in states that separately criminalize both polygamy and bigamy, either crime is committed when a married person first enters into an unlawful marriage with a second person. However, additional marriages beyond the second would support prosecution for additional criminal counts and possibly a longer sentence.

Most states base their polygamy laws on the model penal code section 230.1, which provides that a person is guilty of the third-degree felony of polygamy if he or she marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. The crime is punishable either by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense. The crime of polygamy is deemed to continue until all cohabitation with and claim of marriage to more than one spouse terminate. Polygamy laws do not apply to aliens who are temporarily visiting the United States, provided that polygamy is lawful in their country of origin.

The existence of a valid marriage entered into by the defendant prior to the second valid marriage is an essential element of the offense in every jurisdiction. No particular type of ceremony is required for the first or subsequent marriage before someone can be prosecuted for polygamy. Even persons who satisfy the requirement for a common-law marriage can be prosecuted for entering a subsequent marriage that itself is either another common-law marriage or a traditional marriage.

Cohabitation is not typically a requisite element of the offense. Merely entering into a second marriage with knowledge that one is currently married to another living person will support an indictment for polygamy. An indictment for polygamy will not be found unlawful even if the defendant offers proof that his or her first marriage was a voidable marriage, or one that is valid until annulled. If neither party to a voidable marriage successfully voids the marriage by obtaining an annulment, then the remarriage of either constitutes polygamy.

Ordinarily the state in which the polygamous marriage occurred has jurisdiction over prosecution of the crime. Some statutes, however, provide that the accused may be convicted in the state where the polygamous cohabitation takes place, even though the marriage occurred elsewhere. For example, California law provides that "when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge." Cal. Pen. Code § 281.

Defenses

Under certain statutes it is not considered polygamous for an individual to remarry after a certain period of time has elapsed during which the former spouse was absent and thought to be dead. For example, California exempts from its law "any person by reason of any former marriage whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living." Cal. Pen. Code § 282. Remarriage before the expiration of the statutory period, however, constitutes polygamy, even if the missing spouse later turns out to be dead, since the first marriage is still regarded as valid until the statutory period lapses.

In some jurisdictions a sincere and reasonable belief that a valid divorce has been granted is a defense to polygamy. In most jurisdictions, however, it is not a defense. It is sometimes said that polygamy is a strict-liability offense because the prosecution need not prove

a criminal intent to obtain a conviction, and defendants may not rely on erroneous legal advice, ignorance, or mistake law as a defense. However, prosecutors are more likely to pursue indictments against persons who knowingly enter into a polygamous marriage than against persons who enter a second marriage under a good faith belief that their first marriage has been nullified.

As mentioned above, a person who successfully annuls his or her first marriage before entering a second marriage cannot be prosecuted for polygamy. The same rule applies to persons who successfully have their marriage dissolved by divorce or nullified for any other reason before entering the second marriage. However, a divorce or annulment obtained subsequent to a second polygamous marriage is no defense. Nor will a solemnly held religious belief that it is not unlawful to have more than one spouse serve as a defense to an indictment for polygamy. In affirming the criminal conviction of a Mormon for practicing polygamy, the U.S. Supreme Court rejected the argument that a Utah law prohibiting polygamy violated either the Establishment or Free Exercise Clauses of the first amendment to the federal Constitution. (Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878).

Origins of Anti-Polygamy Laws

The ban on polygamy originated in English common law. In England polygamy was repudiated because it deviated from Christian norms; marriage, it was believed, properly existed only between one man and one woman. In 1866, for example, in the seminal case of Hydev. Hyde, 1 L.R.-P. & D., an English court remarked that "the law of [England was] … adapted to the Christian marriage, and it is wholly inapplicable to polygamy." During the nineteenth century, English and U.S. law did not recognize polygamous marriage in any form. Only in the late twentieth century has either nation given limited legal recognition to polygamous partners from other countries.

Anti-polygamy laws in the United States also sprang from religious conflict. In the mid-1800s, widespread public hostility arose toward the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints, known as Mormons. A small religious sect in the territory of Utah, the Mormons believed that their founder and prophet, Joseph Smith, had a divine revelation in 1843 that called for men to marry more than one woman; in 1852 the church announced that the practice was religiously superior to monogamy. This position angered critics throughout the country, ranging from religious leaders to novelists, editorialists, and particularly politicians. In 1856 the Republican party's first national platform denounced polygamy and slavery as "those twin relics of barbarism."

Legal controversies over the propriety of prohibiting polygamous marriages persisted in the United States for 150 years and were expected to continue as long as sects within the Mormon religion continued to openly support the practice of plural marriage. The Church of Jesus Christ of Latter-day Saints disavowed polygamy in 1890 and excommunicates those members who practice plural marriage.

further readings

Altman, Irwin. 1996. "Polygamous Family Life: the Case of Contemporary Mormon Fundamentalists." Utah Law Review (spring).

Dane, Perry. 1996. "The Public, the Private, and the Sacred: Variations on a Theme of Nomos." Cardozo Studies in Law and Literature 8 (spring-summer).

Forbes, Stephanie. 2003. "Why Just Have One?: An Evaluation of the Anti-polygamy Laws Under the Establishment Clause." Houston Law Review 39 (spring).

cross-references

Aliens; Common Law; Marriage.

POLYGAMY

POLYGAMY is defined as having more than one wife or husband at the same time, usually a man with several wives. Polygamy differs from bigamy in that the wives and children of the polygamist generally form one family. Often in a polygamous marriage, a man marries sisters or the daughter of a wife. The bigamist, on the other hand, keeps his plural marriages a secret and marries the next woman without the other wife's knowledge.

Throughout history many societies have condoned or accepted plural marriages, another term for polygamy. References to its acceptance are in the Bible, the Koran, and other religious texts. Plural marriage is still legal in many Muslim countries, as a practice in accordance with the Koran. However, most modern Muslim families do not practice polygamy, often for financial reasons. Although accepted elsewhere, polygamy has not been a generally accepted practice in the United States. It is illegal in every state and is a federal crime as well.

Nevertheless, the definition and discussion of polygamy is not that simple. Throughout U.S. history, several groups have practiced "free love," which some consider polygamy. In the mid-1800s, during the Second Great Awakening, the Oneida Perfectionists, followers of John Humphrey Noyes, lived together as one family, sharing property, housing, production, and children. They claimed that because there was no marriage in heaven, on earth all men were married to all women. Men and women could have a relationship with whomever they chose. However, Noyes became the arbiter of which men and women could procreate, a situation termed a complex marriage. Although expelled from Putney, Vermont, the Oneida Perfectionists settled peacefully in Oneida, New York. In 1880 the group voted to disband themselves and form a company, Oneida Ltd., which still exists and is famous for its silverware.

Another group, the Church of Jesus Christ of Latter-day Saints, popularly known as Mormons, originated in 1830 in Palmyra, New York. The original leader, Joseph Smith, and his followers believed in polygamy. Persecuted for their beliefs, the Mormons fled to Illinois, where Joseph Smith and his brother were lynched in 1844. Seeking refuge, Brigham Young led the majority of Mormons west to the Great Salt Lake to establish the State of Deseret.

Relatively few Mormons, usually church leaders, practiced polygamy. Polygamy was not a federal crime until passage of the Morrill Act in 1862. Mormon leaders unsuccessfully challenged this act, charging that banning polygamy violated First Amendment rights to freedom of religion. To achieve statehood in 1896, the Utah constitution and the Mormon church had to renounce the practice of plural marriage.

Since then even fewer Mormons have practiced polygamy. As of 2002, in Utah, with a population of 2.5 million, somewhere between 20,000 and 40,000 people lived in polygamous situations. The financial burden was evident; in the areas where most polygamous families lived, roughly one-third lived on welfare.

Occasionally, a case of polygamy received national attention. In 2000–2001, Tom Green of Utah confessed on two national television shows that he had five wives and some twenty-five children. Consequently, he was tried for bigamy, welfare fraud, nonsupport, and child rape (for allegedly marrying his thirteen-year-old daughter).Green had divorced each wife before marrying another, yet he continued to live with them all; hence, they were common law marriages. The case was the first major prosecution in over fifty years and received a great deal of media coverage. Green was convicted and sentenced to five years in jail.

In keeping with the open cultural mores of the late twentieth century, some groups still advocated polygamy, usually on secular grounds. They argued that plural marriage avoids bigamy and adultery. Other groups stated that the high American divorce rate results in a form of "serial polygamy," as distinguished from "simultaneous polygamy." Still other groups, generally formed by former plural marriage wives, fought against the practice of polygamy on the grounds that it inappropriately and un-duly subjugated women to the power of a particular man.

BIBLIOGRAPHY

Altman, Irwin. Polygamous Families in Contemporary Society. New York: Cambridge University Press, 1996.

Foster, Lawrence. Religion and Sexuality: The Shakers, the Mormons, and the Oneida Community. Urbana: University of Illinois Press, 1984.

Foster, Lawrence. Women, Family, and Utopia: Communal Experiments of the Shakers, the Oneida Community, and the Mormons. Syracuse, N.Y.: Syracuse University Press, 1991.

Gordon, Sarah Barringer. The Mormon Question: Polygamy and the Constitutional Conflict in Nineteenth Century America. Chapel Hill: University of North Carolina Press, 2002.

Kilbride, Philip. Plural Marriage for Our Times. Westport, Connecticut: Bergin and Garvey, 1994.

Klaw, Spencer. Without Sin: Life and Death of the Oneida Community. New York: Penguin Books, 1993.

Litchman, Kristin Embry. All is Well. New York: Delacorte Press, 1998.

Diane NagelPalmer

See alsoLatter-day Saints, Church of Jesus Christ of ; Mormon War ; Oneida Colony .

Polygamy

Sources

Polygamy among the Mormons. The Church of Jesus Christ of Latter-Day Saints was among the most distinctive American religious communities of the nineteenth century. The founder of Mormonism, Joseph Smith, claimed that an angel had revealed golden plates to him on which a religious history was written. These plates, Smith said, told the story of the appearance of Christ in the New World after his crucifixion. The church grew rapidly, both within the United States and in Europe. Between 1837 and 1846, for example, Mormon missionaries baptized nearly eighteen thousand people in England, of whom nearly five thousand immigrated to Nauvoo, Illinois, to join the Mormon community there. Smith was killed by a mob in 1844. His role as leader was taken by Brigham Young. Driven from Missouri, Ohio, and Illinois by hostile neighbors, the Mormons set out in 1846 for the West. In 1847 they established Salt Lake City, the new headquarters of the Mormon Church. In the forty years after 1846 some one hundred thousand converts moved to Mormon communities in the West.

Family and Marriage. Between the mid 1840s and 1890 polygamy was the ideal form of Mormon marriage, but even during this time fewer than one-fifth of Mormons lived in polygamous households. Even dedicated Mormons initially found the idea of plural marriage troubling. According to the historians Leonard J. Arrington and Davis Bitton, when Brigham Young heard of Smith’s revelation allowing plural marriage, he said “it

was the first time in my life that I desired the grave.” Later, however, both men and women defended the practice as a command of God that was also “a practical, honorable means of providing marriage and motherhood for thousands of deserving women who would otherwise be condemned to a life of spinsterhood.” Mormons claimed that polygamous families offered distinct advantages. Women with several children might find another woman’s assistance invaluable, and the presence of another adult could ease loneliness. Older women, without means of support, might find a polygamous marriage promised a secure old age. Still, polygamy remained controversial and difficult even for believers. Men might find it hard to support more than one wife while women struggled with jealousy.

Sources

Leonard J. Arrington and Davis Bitton, The Mormon Experience: A History of the Latter-Day Saints (New York: Knopf, 1979);

Jessie L. Embry, Mormon Polygamous Families: Life in the Principle (Salt Lake City: University of Utah Press, 1987).

POLYGAMY

Because polygamy was one of the early tenets of the Mormon Church, the movement to eradicate plural marriage became bound up with religious persecution. The Supreme Court has consistently held that the first amendment's protections of religious liberty do not protect the practice of plural marriage. Thus reynolds v. united states (1879) upheld a criminal conviction for polygamy in the Territory of Utah, and davis v. beason (1880) upheld a conviction for voting in the Territory of Idaho in violation of an oath required of all registrants forswearing belief in polygamy. The corporate charter of the Mormon Church in the Territory of Utah was revoked, and its property forfeited to the government, in church of jesus christ of latter-day saints v. united states (1890). The church's First Amendment claim was waved away with the statement that belief in polygamy was not a religious tenet but a "pretense" that was "contrary to the spirit of Christianity."

It would be comforting if this judicial record were confined to the nineteenth century, but it was not. In Cleveland v. United States (1946), the Court upheld a conviction of Mormons under the mann act for transporting women across state lines for the purpose of "debauchery" that took the form of living with them in polygamous marriage. The Court's opinion, citing the nineteenth-century cases and even quoting the "spirit of Christianity" language with approval, was written by none other than Justice william o. douglas.

More recently, the Court has recognized a constitutional right to marry, and in a number of contexts has afforded protection for a freedom of intimate association. With or without the ingredient of religious freedom, substantivedue process doctrine seems amply to justify an extension of these rights to plural marriage among competent consenting adults. Yet the force of conventional morality in constitutional adjudication should not be underestimated; the Supreme Court is not just the architect of principle but an institution of government. Polygamy is not on the verge of becoming a constitutional right.

Kenneth L. Karst
(1986)

Bibliography

Larson, Gustave O. 1971 The "Americanization" of Utah for Statehood. San Marino, Calif.: Huntington Library.

POLYGAMY

Islamic law allows only men to enter more than one marriage at a time, justifying it by reference to the Qur˒an (4:3, 24, 25) and the marriages of the prophet Mohammad. Although polygamy (strictly, "polygyny") has never been common in Muslim societies, in many areas it was always rare, and incidence has diminished in modern times. In the twentieth century, men's right to contract plural marriages became one of the contentious issues in debates over women's rights in Islam. Not only did the practice become stigmatized but its religious legitimacy began to be challenged by new readings of Islamic sacred texts and the introduction of notions of equity and justice in gender rights. In contrast to classical Muslim jurists, modern jurists tend to argue that interdiction of the practice, rather than its sanction, can be deduced from the Qur˒an verses, and that polygamy should be allowed only in exceptional circumstances and under limited conditions. Likewise, in some Muslim countries plural marriages are either outlawed (as in Turkey and Tunisia), or the registration of such marriages is allowed only by means of a court order that either requires the first wife's consent or grants her the right to divorce (as in Jordan, Malaysia, Iran, Iraq, and Syria). Elsewhere, especially in the Persian Gulf countries, men face no legal restrictions in contracting plural marriages. Because of social sanctions, plural marriages all over the Muslim world are often contracted in secret.

See alsoGender ; Marriage .

BIBLIOGRAPHY

Asghar, Ali. The Rights of Women in Islam. London: Hurst and Company, 1992.

Maghniyyah, Muhammad Jawad. Marriage According to FiveSchools of Islamic Law. Tehran: Department of Translation and Publication, Islamic Culture and Relations Organization, 1997.

Ziba Mir-Hosseini