Decriminalizing Polygamy

Polygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriageas a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah’s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district court on mootness grounds, displaying an inherent reluctance to address the merits of the arguments, re-affirming outdated misconceptions, and leaving prosecutors and polygamists in an uncertain legal position. This Article provides much needed clarity on the decriminalization of polygamy to inform future litigation. This Article approaches the decriminalization debate by re-framing the issue into its three key considerations — the harm, the law, and the policy — that must guide the polygamy debate moving forward. The aim is to provide a gloss over the Brown litigation in order to draw out the harms of polygamy, the constitutional arguments and statutory interpretation issues at stake, and the transformative legal and theoretical social policies that could ideally result from the polygamy debate at this moment in history. Using this framework, this Article’s novel argument is that polygamy bans are unconstitutional under a combination of substantive Due Process and Free Speech grounds as they apply to the private aspects of polygamy and the public aspects of polygamy, respectively. The Article culminates with an idealized, mock opinion from a fictional Tenth Circuit panel in the Brown litigation that approaches the decriminalization of polygamy using a combination of substantive Due Process and Free Speech tenets, and not arguments based in Free Exercise of Religion