Bigamy, the act of one person getting formally married with a civil marriage license to two different people, is a crime in the US and most countries. I had always thought that polygamy was the same act carried out with three or more people. No doubt I had been swayed by the parallel with mathematics where the prefix ‘bi-‘ signaled two and ‘poly-‘ signaled an indeterminate number that was more than two.
So when I wrote about the recent decision in Utah where a US District Court judge ruled that cohabitation of one man with three women was not illegal, I said that the ruling did not mean that polygamy is now legal, because the man had a formal marriage license for only one of the women. The family that the judge was ruling on was a ‘plural’ family where one man was cohabiting with three women.
But Jonathan Turley, the lead attorney who argued for the right of ‘plural families’ to be free from prosecution, says that my distinction is not correct.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
His last sentence is a little confusing. Since it seems to imply a distinction between polygamy and plural marriages, which is what I thought was the distinction he had eliminated earlier.
Interesting.
I interpreted that sentence to mean that having one marriage license while living with multiple women is not equivalent to having multiple marriage licenses.
I don’t know if I’d call it “interesting”, since this is purely semantics, and I frankly find the disconnect between the practical semantics and the root words to be a little off-putting… but this is definitely in the “good to know” category, if that’s how the words are used in a legal context.
Keep in mind that there is (or can be) a difference between a marriage license and a marriage certificate. The former grants permission to get married. The latter is a legal document that is proof of the new legal status. You’ll bring out your certificate to show that you are guaranteed certain rights.
Also, marriage licenses expire. For example, in New York City a license is good for sixty days for most people, and for 180 days for military personnel. I’m not aware of any marriage certificates doing the same. In fact, genealogists often use marriage certificates to document family members, even centuries after those relatives have died.
Turley’s clarification clarifies nothing. The word ‘polygamy’ appears in the Utah state constitution, but it doesn’t appear in the specific cohabitation statute that was at issue. The wording of that statute is:
At issue in the case was the meaning of the phrase ‘purports to marry’, i.e. did that mean only registering a marriage license obtained from the state or did it include the mere act of going through any kind of religious marriage ceremony even without a marriage license, and of course the ‘cohabits with another person’ provision.
The court held that the words ‘or cohabits with another person’ was unconstitutional and struck them out. It adopted a ‘narrow’ interpretation of ‘marry’ or ‘purports to marry’ i.e. it held them to mean only a marriage that involves a marriage licence obtained from the state.
I don’t know what Turley is getting at when he tries to draw distinctions between polygamy, bigamy and plural marriage.
I should add that the court stated in obiter dicta that ‘purports to marry’ includes merely obtaining a marriage licence regardless of whether the marriage ceremony takes place or the licence is registered, because there was precedent for that interpretation. It’s obiter dicta because it didn’t apply to the facts of the case before the court, i.e. there was no attempt to obtain more than one marriage licence.
OK I just had a look at some bigamy/polygamy legislation in other jurisdictions and I think I have an idea now of what Turley is trying to say. Turley is defining polygamy as any type of marriage-like relationship that involves 3 or more people, regardless of whether a ceremony has been performed or a state licence obtained. That seems to be how polygamy is generally defined in other common law jurisdictions, such as Canada.
So Turley is right that polygamy in that sense is now legal in Utah. The only thing left illegal under this ruling is ‘bigamy’ which involves knowingly holding two or more marriage licences at the same time.
That makes sense.
It is ironic that polygamists, who claim spiritual authorization, are now legitimized in the same sense as that of the couples they refer to as “living in sin”.
I think the last sentence is drawing the distinction between the relationship (i.e. sex) and the legal marriage certificate. The analogy is that polygamy (having more than one sexual or emotional partner) is to bigamy (more than one marriage certificate) as gay relationship (having a same-sex partner) is to same-sex marriage (one marriage certificate).
I guess he is arguing that the state is not authorized to regulate any personal sexual or emotional relationships (presumably with consent), and therefore can not control who cohabitates with whom. However, the government has the right to regulate marriage certificates, and for reasons, forbid people from holding more than one valid marriage certificate at the same time.
The real issue is, or it should be, what impact does the “purported” marriage have on the social contract so implicit in our code of laws? Are” spiritual marriages” just a device to end-run the bigamy laws? Bigamy(s) are marriages basically devoid of religious intent. So be declaring your extra marriage a “spiritual marriage” does it relieve the very codes of behavior so important for a well ordered society? What if I could declare a “murder” as an religious right like “atonement”. Even atonement had a dual religious and societal function which had to be carried out under the cover of secular laws. The only difference between Polygamy and Bigamy is that the former declares his (I emphasize his) multiple unions as “spiritual” and the latter doesn’t reach across society to declare his/her extra marriage anything but an extra marriage. If Polygamists see their marriage as “spiritual” and exempt due to “religious freedom’ then we might argue for that same reach for other outlawed religious practices which dominated the early days of religions ,like for example, human sacrifices.