Can We Still Criminalize Polygamy

Strict Scrutiny of Polygamy Laws Under State Religious Freedom Restoration Acts After Hobby Lobby

State criminal polygamy laws substantially burden the religious polygamy practiced by Fundamentalist Mormons and others, and can be subjected to strict scrutiny in those states where mini-RFRAs have been enacted. Such strict scrutiny may be influenced by the Supreme Court’s most recent RFRA case, Burwell v. Hobby Lobby Stores, Inc., which continues the Court’s development of an even “stricter” form of scrutiny under the RFRA than it has applied in free exercise cases. Defense of polygamy laws will initially require identification of a compelling state interest. The illegitimate, vague, and unsupported state interests previously provided in the Supreme Court case of Reynolds v. United States, as well as subsequent lower court and state cases, must be replaced by a more modern and empirical understanding of the harms of polygamy. This can be found in the recent Canadian case on the constitutionality of its criminal polygamy law, Reference re: Section 293 of the Criminal Code of Canada. Reference relied upon a statistical analysis of empirical data from 172 countries on the differential impact of monogamy versus polygamy; in addition to expert testimony from academics in the fields of evolutionary psychology, economic, political science, and nursing, from medical and psychological clinicians; and anecdotal evidence from husbands, wives, and children of polygamy. The goal was to specifically identify the harms of polygamy to women, children, men, and society at large. The Reference Court concluded that these harms outweighed burdens on religion and liberty. Avoiding these harms would be a compelling state interest, but there are questions as to whether the empirical evidence relied upon by Reference would be sufficient to satisfy the new RFRA requirement that the compelling state interest be specifically served by not exempting religious actors. In particular, it is not yet clear how the use of statistical evidence to satisfy this requirement would be evaluated. If this obstacle can be overcome, criminalization must still be the least restrictive alternative. I consider, and ultimately reject, the possibility that refusing to legally recognize polygamous marriages could be a less restrictive and sufficiently effective way to keep polygamy in check, even in light of Hobby Lobby’s suggestion that a less effective alternative may serve as a least restrictive alternative, given the recent trajectory from decriminalization of sodomy to same-sex marriage. I conclude that, while the Reference harms go a long way toward shielding state criminal polygamy laws from RFRA attacks, the ultimate result would depend upon the resolution of a number of novel questions about RFRA scrutiny itself.

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