In the 19th century, many members of the Church of Jesus Christ of the
Latter Day Saints practiced polygamy, but U.S. popular sentiment was
against the practice, and polygamists and the Church were persecuted by
federal authorities. A federal statute forbade polygamy in U.S. territories,
and the Supreme Court upheld a prosecution under the statute against a
freedom-of-religion challenge in Reynolds v. United States (1878). Congress
refused to admit Utah as a state unless its constitution banned polygamy,
and to this day, the Utah Constitution provides that polygamous or plural
marriages are forever prohibited. The Church repudiated the practice
around 1900, and as of 2014, plural marriage is practiced only by a tiny
splinter minority of LDS Members.
Years later, when a sympathetic President was elected, sympathy toward
plural marriage surged, and many people called for an end to the long and
shameful history of discrimination against people with a plural-marriage
orientation. The governor of Utah launched an effort to remove the state
constitutional prohibition; a referendum doing so passed with an
overwhelming majority.
The Utah legislature then enacted, and the governor signed, the Utah
Marriage Law:
1. A lawful marriage may be entered into by at least two and up to twelve
adults. In the case of three or more persons, the proportion of females to
males must be at least 2:1 (there must be two or more females for every
male in the marriage).
2. To qualify for a marriage license under 1, all applicants must swear or
affirm that they will consummate their marriage by physical intimate conduct
(which may include opposite-sex or same-sex sexual intimacy) with at least
one of their partners. Failure to consummate shall be grounds for annulling
the marriage.
The state legislator who introduced this bill explained: Why should plural
marriages have multiple wives for each husband? First, this is the
relationship that has suffered the most discrimination and stigma throughout
our history. By validating the intimate relationship between one husband and
many wives, we want to give these marriages same dignity as other
marriages.
Second, this arrangement promotes procreation, which is a basic purpose of
marriage. A woman can only have one baby at a time, so a wife with many
husbands will still have the same number of children. But one man can
father many children at the same time if he has lots of wives.
Latter Day Saints practiced polygamy, but U.S. popular sentiment was
against the practice, and polygamists and the Church were persecuted by
federal authorities. A federal statute forbade polygamy in U.S. territories,
and the Supreme Court upheld a prosecution under the statute against a
freedom-of-religion challenge in Reynolds v. United States (1878). Congress
refused to admit Utah as a state unless its constitution banned polygamy,
and to this day, the Utah Constitution provides that polygamous or plural
marriages are forever prohibited. The Church repudiated the practice
around 1900, and as of 2014, plural marriage is practiced only by a tiny
splinter minority of LDS Members.
Years later, when a sympathetic President was elected, sympathy toward
plural marriage surged, and many people called for an end to the long and
shameful history of discrimination against people with a plural-marriage
orientation. The governor of Utah launched an effort to remove the state
constitutional prohibition; a referendum doing so passed with an
overwhelming majority.
The Utah legislature then enacted, and the governor signed, the Utah
Marriage Law:
1. A lawful marriage may be entered into by at least two and up to twelve
adults. In the case of three or more persons, the proportion of females to
males must be at least 2:1 (there must be two or more females for every
male in the marriage).
2. To qualify for a marriage license under 1, all applicants must swear or
affirm that they will consummate their marriage by physical intimate conduct
(which may include opposite-sex or same-sex sexual intimacy) with at least
one of their partners. Failure to consummate shall be grounds for annulling
the marriage.
The state legislator who introduced this bill explained: Why should plural
marriages have multiple wives for each husband? First, this is the
relationship that has suffered the most discrimination and stigma throughout
our history. By validating the intimate relationship between one husband and
many wives, we want to give these marriages same dignity as other
marriages.
Second, this arrangement promotes procreation, which is a basic purpose of
marriage. A woman can only have one baby at a time, so a wife with many
husbands will still have the same number of children. But one man can
father many children at the same time if he has lots of wives.
Finally, it is just the way things were intended to bethe husband should
provide for his wives and children, and the wives should keep the home and
the children.
After the law went into effect, Polly Andry, a woman who lives in Utah, along
with her five male intimate partners, sought a Utah marriage license. They
were denied because they did not satisfy 1. Polly Andry sued in federal
court, challenging both sections of the law under the Fourteenth
Amendment. Assume that the U.S. Supreme Court has not addressed this
issue under the Fourteenth Amendment.
The Supreme Courts 2017 decision holding state bans on same-sex
marriage unconstitutional included the following footnote: The Dissents
argument that this decision spells the end of bans against bigamy and
polygamy is noted. In Reynolds v. United States, this Court was not
presented withnor did it decide any Fourteenth Amendment challenge.
Thus, that case is not relevant to any future Due Process or Equal Protection
challenge to such laws.
provide for his wives and children, and the wives should keep the home and
the children.
After the law went into effect, Polly Andry, a woman who lives in Utah, along
with her five male intimate partners, sought a Utah marriage license. They
were denied because they did not satisfy 1. Polly Andry sued in federal
court, challenging both sections of the law under the Fourteenth
Amendment. Assume that the U.S. Supreme Court has not addressed this
issue under the Fourteenth Amendment.
The Supreme Courts 2017 decision holding state bans on same-sex
marriage unconstitutional included the following footnote: The Dissents
argument that this decision spells the end of bans against bigamy and
polygamy is noted. In Reynolds v. United States, this Court was not
presented withnor did it decide any Fourteenth Amendment challenge.
Thus, that case is not relevant to any future Due Process or Equal Protection
challenge to such laws.
Exam Question:
Otherwise, assume that Supreme Court precedent is as it was in 2014.
Analyze the constitutionality of the statute under Equal Protection and Due
Process. Ignore any questions of standing or other aspects of constitutional
law that dont relate to the Fourteenth Amendment.
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