On Marriage and Polygamy

This Article posits that the Supreme Court’s historical recognition of the fundamental right to marry, the development of Justice Kennedy’s analysis in the gay rights trilogy of Romer, Lawrence, and Windsor, and the Supreme Court’s recent recognition in Obergefell of the constitutional right of same-sex couples to marry all come together to open the door to the ultimate recognition of polygamous marriages. While much has and will be written regarding the development of the law as it relates specifically to the recognition of same-sex marriage, very little has been written examining how this doctrinal development might impact the recognition of marriage in other relational contexts. The intent of this Article is not to advocate for the recognition of polygamous marriages or, for that matter, any other marriage construct. Rather, this Article makes the somewhat radical and unique claim that the development of the jurisprudence in the area of the recognition of same-sex marriages raises significant questions regarding historical regulations impacting marriage that have not been questioned in the legal context for generations, specifically regulations prohibiting polygamous marriages. Part II of this Article briefly reviews the history of polygamy generally. Parts III and IV then examine the history of the Mormon faith in the United States and the history of the practice of polygamy in historical contexts. Part V then examines how courts have treated the issue of polygamy over time. Following this extensive examination of polygamy in both historical and legal context, this Article then turns to the develop of the jurisprudence of privacy and marriage by the Supreme Court, culminating in the Court’s predicted recognition of the right of same-sex marriage. Part VI reviews the Supreme Court’s development of the doctrine of the fundamental right to marry. Part VII then explores the development of Justice Kennedy’s jurisprudence related to the doctrines of equal protection and due process through the trilogy of gay rights cases in which he wrote for the Court. Part VIII then examines Supreme Court’s decision in Obergefell striking down state prohibitions against same-sex marriage and recognizing the constitutional right of same-sex couples to marry. Part VIII specifically examines the background leading to Obergefell, the oral arguments in the case, and the ultimate decision, focusing specifically on concerns raised throughout this process about the implications the Court’s decision in Obergefell might have for future challenges to prohibitions against plural marriage. Part IX, this Article’s conclusion, asserts that the Supreme Court’s recognition of the fundamental right to marry and Justice Kennedy’s evolving analysis in Romer, Lawrence, Windsor and Obergefell ultimately provide a legal framework for challenges to the recognition of polygamous marriages. At a minimum, this developing jurisprudence related to privacy and marriage with its wholesale rejection of majoritarian morality and social animus as an appropriate basis for the state to burden fundamental rights or to classify groups will force states to be more thoughtful and creative in articulating their basis for prohibiting polygamous marriages.