Omar Bennett
The U.S. Constitution's relationship with marriage has always been fraught with tension. While the landmark case of Obergefell v. Hodges (2015) focused on same-sex marriage, the nineteenth century saw a wave of antagonism towards polygamy, resulting in 49 proposed amendments to prohibit the practice. Despite arguments for the decriminalisation of polygamy, the United States has declared that it is not protected by the Constitution, citing the legal principle that laws govern actions, not beliefs. This has led to increasing anti-polygamy legislation, with some Mormons emigrating to Canada and Mexico as a result. While bigamy is illegal in the U.S., there are constitutional arguments for its recognition, including the right to freedom of association and the right to marry, which is implicitly protected by the right to human dignity.
| Characteristics | Values |
|---|---|
| Polygamy constitutionally protected | No |
| Polygamy recognised by law | No |
| Polygamy constitutionally decriminalised | No |
| Polygamy constitutionally criminalised | Yes |
| Polygamy constitutionally discouraged | Yes |
| Polygamy constitutionally encouraged | No |
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What You'll Learn
The U.S. Constitution and its relationship with marriage
The United States has declared that polygamy is not protected by the Constitution, based on the longstanding legal principle that "laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices". This has led to increasingly harsh anti-polygamy legislation in the US, causing some Mormons to emigrate to Canada and Mexico.
Bigamy, or the act of entering into a marriage with one person while still legally married to another, is illegal in the United States. If a person’s first marriage remains intact, their second marriage is not legally binding and can even lead to criminal charges. Bigamy laws prohibit individuals in polygamous and polyamorous relationships from marrying more than one spouse.
However, some have defended the practice of polygamy and the provisions of the law which legally recognise it, on the ground that women who enter into polygamous marriages choose to do so. The state has no right to interfere with the choices made by individuals regarding whom they wish to marry and whom not, as this interferes with their right to freedom of association and their right to marry. The Recognition of Customary Marriages Act attempts to provide protection to women – even when such marriages are polygamous.
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The legal status of polygamy in the U.S
Polygamy is not protected by the U.S. Constitution. The longstanding legal principle that 'laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices' means that polygamous relationships are not constitutionally protected.
Bigamy, the act of entering into a marriage with one person while still legally married to another, is illegal in the United States. If a person's first marriage remains intact, their second marriage is not legally binding and can lead to criminal charges. Bigamy laws prohibit individuals in polygamous and polyamorous relationships from marrying more than one spouse.
Since those who practice polygamy and polyamory are unable to marry those with whom they have a marriage-like relationship, they remain unprotected by the law in matters of inheritance, hospital visits, and parentage rights. Three constitutional arguments have emerged to support the decriminalization and recognition of bigamous marriages.
The state has no right to interfere with the choices made by individuals regarding whom they wish to marry and whom not, as this interferes with their right to freedom of association and their right to marry.
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The right to freedom of association
Polygamy, or the practice of having multiple spouses, has been a contentious issue in the United States, with members of Congress proposing 49 amendments pertaining to its prohibition between 1879 and 1924. The U.S. Constitution has declared that polygamy is not protected, based on the legal principle that laws govern actions, not beliefs. This has resulted in harsh anti-polygamy legislation, which has led to the criminalisation of polygamous relationships and the denial of certain legal protections, such as inheritance, hospital visits, and parentage rights.
Some have argued that the state should not interfere with individuals' choices regarding whom they marry, as this infringes on their right to freedom of association and their right to marry, which is implicitly protected by the right to human dignity. The Dawood case, for example, recognised the right of women to enter into polygamous marriages, and the Recognition of Customary Marriages Act provides protection to women in such marriages.
However, the legal recognition of polygamous marriages remains a complex issue, with arguments both for and against. While some argue for the decriminalisation of bigamous marriages, citing the right to freedom of association, others maintain that polygamy is not protected by the Constitution, and that the state has a duty to prescribe the legal definition of marriage.
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The right to marry
In the United States, the longstanding legal principle holds that laws govern actions, and while they cannot interfere with religious beliefs, they may regulate practices. As a result, polygamy has faced increasing legal scrutiny, with 49 amendments proposed between 1879 and 1924 to prohibit the practice. This led to harsh anti-polygamy legislation, causing some Mormons to emigrate to Canada and Mexico.
Bigamy, or entering into a marriage while still legally married to another person, is illegal in the United States. Those in polygamous relationships are left unprotected by the law in matters of inheritance, hospital visits, and parentage rights. However, there are constitutional arguments for the decriminalisation and legal recognition of bigamous marriages.
The question of whether the state should prescribe the number of people involved in a marriage or protect the rights of those entering into such relationships equally is a subject of debate. Some defend polygamy on the grounds of freedom of association and the right to marry, which is implicitly protected by the right to human dignity. The Recognition of Customary Marriages Act aims to provide protection to women in polygamous marriages, but it has been argued that the Act discriminates against those who wish to marry multiple partners.
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The legal recognition of bigamous marriages
Bigamy, or polygamy, is not protected by the US Constitution. The longstanding legal principle is that "laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices". This means that while polygamy is a religious practice, it is not protected by law.
Bigamy is illegal in the United States. If a person is still legally married to one person, their second marriage is not legally binding and can lead to criminal charges. Bigamy laws prohibit individuals in polygamous and polyamorous relationships from marrying more than one spouse. This means that those in polygamous relationships are not protected by the law in matters of inheritance, hospital visits, and parentage rights.
There are three constitutional arguments that have emerged to support the decriminalization and recognition of bigamous marriages. The first is that the state has no right to interfere with the choices made by individuals regarding whom they wish to marry. This interferes with their right to freedom of association and their right to marry, which the Constitutional Court found was implicitly protected by the right to human dignity. The second argument is that the Recognition of Customary Marriages Act attempts to provide protection to women, even when such marriages are polygamous. The third argument is that section 3(2) and 10(1) of the Act discriminate against women who wish to marry more than one partner, individuals in same-sex relationships who wish to marry more than one partner, or individuals who do not live in accordance with African customary law but wish to marry more than one partner. However, this argument is likely to be rejected by the Constitutional Court.
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Frequently asked questions
No, polygamy is not protected by the US Constitution.
Bigamy is the act of entering into a marriage with one person while still legally married to another.
If a person's first marriage remains intact, their second marriage is not legally binding and can lead to criminal charges.
Three constitutional arguments have emerged to support the decriminalisation of bigamy: firstly, the state has no right to interfere with the choices made by individuals regarding whom they wish to marry; secondly, the state should protect the rights of all persons equally who enter into a marriage relationship, irrespective of the number of people involved; and thirdly, the Recognition of Customary Marriages Act attempts to provide protection to women in polygamous marriages.
