QUESTIONING THE REYNOLDS DECISION: A MODERN EXAMINATION OF

THE CONSTITUTIONALITY OF POLYGAMY

Daniel Dubose Ray

INTRODUCTION

The Religion Clauses provide that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof . . . .”1 These words

attempt to explicate the relationship between government and religion in the United

States of America. By evaluating the United States Supreme Court cases involving the

Establishment and Free Exercise Clauses, individuals gain perspective into an unclear

area of law.

In America, polygamy has been considered a crime since the middle of the

nineteenth century. However, a state might enact a statute permitting the practice of

polygamy.2 Such a hypothetical situation would no doubt raise both Free Exercise Clause

and Establishment Clause questions. If a Free Exercise controversy surfaced, the

Supreme Court would likely struggle to account for the inconsistency in Free Exercise

Clause jurisprudence that has occurred since Reynolds v. United States.3 In addition,

such a case would trigger an Establishment Clause inquiry, and the hypothetical statute

could be struck down using the entanglement prong of the Lemon test.4 This article aims

to analyze the recurrent competing interests between the Establishment Clause and the

1
U.S. CONST. amend I.
2
“Polygyny” is the term describing men who have more than one wife and “polyandry”
refers to women who have more than one husband. THE AMERICAN HERITAGE
DICTIONARY (4th ed. 2001). However, “polygamy” will be used throughout this article
to refer to multiple marriages in general.
3
Reynolds v. United States, 98 U.S. 145 (1878).
4
Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).
Free Exercise Clause, and proposes a new test in hopes of facilitating a more balanced

approach toward cases involving the rival interests of the Religion Clauses.

Part I of this article analyzes the historical and legal background of polygamy.

Part II examines Reynolds and analyzes the Court’s reasoning behind the decision.5 Part

III discusses a hypothetical situation in which the State of Utah amends its laws in order

to legalize polygamy, and discusses the probable Free Exercise and Establishment Clause

objections that would arise. Part IV will identify and apply the current tests and proposed

test the Supreme Court could use to resolve the hypothetical controversy. Furthermore,

any arguments for or against polygamy that analogize it to same-sex marriage are beyond

the scope of this article and will not be directly addressed.

I. THE HISTORY OF POLYGAMY

In order to explain the problems with Reynolds, and to develop a test that ensures

a more rational approach to future controversies involving the Religion Clauses, it is first

important to consider the historical and legal history of polygamy. This approach is

important for three reasons. First, legislative action prior to Reynolds shows that the

United States Government made numerous attempts to eradicate polygamy through

legislation.6 Second, in its decision to uphold prior legislation targeting polygamists,

Reynolds failed to adequately address relevant public policy issues regarding polygamy.7

5
Reynolds is briefly discussed in Part I, but is fully explained in Part II.
6
See Jeffrey Michael Hayes, Polygamy Comes Out of the Closet: The New Strategy of
Polygamy Activists, 3 Stan. J. Civ. Rts. & Civ. Liberties 99, 102-05 (2007) (providing
various acts and measures passed by the United States Government during the 1800’s to
deter the practice of polygamy in the Utah territory).
7
See Keith E. Sealing, Polygamists Out of the Closet: Statutory and State Constitutional
Prohibitions Against Polygamy are Unconstitutional Under the Free Exercise Clause, 17
Ga. St. U. L. Rev. 691, 711-16 (2001) (explaining that Reynolds failed to provide reliable
evidence that polygamy was detrimental to society).

2
This failure spawned tenuous legislative and judicial action.8 Third, an examination of

the history of polygamy in the United States and abroad provides an empirical framework

from which a court may observe the effects of polygamy throughout the ages.9 This

analysis implicitly relates to the Free Exercise Clause, and is vital when developing an

improved test to account for all relevant information. Moreover, as it relates to the

Establishment Clause, such analysis is vital when attempting to create a test that is more

predictable, unprejudiced, and logical. Any rights denied or permitted by the Supreme

Court will need to predict how the outcome will affect future cases, generations, and

society. In order to accomplish this, the improved test should look to the past in order to

predict consequences in the long and short-run.

A. Polygamy in Early History

When one views the history of humans on earth, polygamy appears to be the

rule—not the exception. For example, consider the fact that approximately 85% of all

“past or present societies for which anthropologists have data . . . permitted a man to have

more than one wife.”10 That is not to say that most marriages have been polygamous.

“[M]ost marriages have been monogamous,” but most societies allowed men capable of

caring for more than one wife to do so.11 This fact alone suggests that, even if permitted,

the practice of polygamy is not for everyone, and probably not for the majority. One

explanation for polygamy’s infrequency is that the cost of maintaining a polygamous

8
See id. at 716-20 (analyzing Murphy v. Ramsey, 114 U.S. 15 (1885); Davis v. Beason,
133 U.S. 333 (1890); and Late Corp. of the Church of Jesus Christ of Latter-day Saints v.
United States, 136 U.S. 1 (1890)).
9
See id. at 710-16; see also Todd M. Gillett, The Absolution of Reynolds: The
Constitutionality of Religious Polygamy, 8 Wm. & Mary Bill Rts. J. 497, 501-09 (2000);
see also ROBERT WRIGHT, THE MORAL ANIMAL 87-104 (Vintage Books 1995) (1994).
10
WRIGHT, supra note 9, at 90.
11
Id. at 91.

3
family serves as a natural roadblock.12 “[I]n a society that condones polygamy, ‘only 10

to 25 percent of men actually practice it, and most have only two wives,’ according to

Israeli anthropologist Joseph Ginat.”13 When viewed from an objective standpoint, this

evidence supports two conclusions: 1) polygamy has been present throughout human

development, and 2) even if allowed, polygamy is likely to be practiced on a significantly

lesser scale than monogamy.

B. Polygamy Around the World

Polygamy is still allowed by some religions and cultures today. According to the

Koran, Muslim males are permitted to have as many as four wives.14 To be fair, an

alternative interpretation of Islamic polygamy points out that its practice should be

limited to times of crisis, such as after a war, and not to fulfill one’s lust.15 Chinese

polygamy continues to this day through the practice of “bao ernai.”16 Polygamy can be

found amongst tribes in Africa and, in the last ten years, the Anglican Church in Africa

lifted a prohibition on polygamists joining its church.17 In the United States, Native

Americans are permitted to practice polygamy if their tribe recognizes polygamy as a

custom.18

In western cultures, polygamy has not been widely practiced within the last

millennium.19 Prior to the Mormon Church, there was only a single organized attempt to

12
Gillett, supra note 9, at 508.
13
Id. at 508-09.
14
Sealing, supra note 7, at 706.
15
Gillett, supra note 9, at 508.
16
Sealing, supra note 7, at 707 (noting that the Chinese practice of “bao ernai,” which is
the practice of keeping a concubine, is an important status symbol).
17
Gillett, supra note 9, at 507-08.
18
Id. at 508.
19
See id. at 501-02.

4
develop a polygamous community amongst westerners that deserves mention.20 In 1534,

Anabaptists seized control of Münster, Germany and dubbed their new kingdom the

“Republic of Saints.”21 In their new state, the Anabaptists practiced polygamy as the

proper form of marriage.22 Approximately one year after the Anabaptist state was

formed, “Catholics and Lutherans . . . laid siege to the town and finally overran it on June

24, 1535.”23 After the failure of the “Republic of Saints,” the next well documented

attempt within western culture to establish the legal practice of polygamy was within the

Mormon Church.

C. Polygamy and The Church of Jesus Christ of Latter-Day Saints

In 1830, Joseph Smith, a young farmer from New York, founded what would later

become the Church of Jesus Christ of Latter-Day Saints.24 Subsequently, the church

became commonly known as the Mormon Church.25 Mormons followed the teachings of

the Book of Mormon, which was written by Smith, and declared Smith to be God’s

20
Id. at 502.
21
Id.
22
Id.
23
Id.
24
Richard A. Vazquez, The Practice of Polygamy: Legitimate Free Exercise of Religion
or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional
Jurisprudence, 5 N.Y.U.J. Legis. & Pub. Pol’y 225, 227 (2002); see also Cassiah M.
Ward, I Now Pronounce You Husband and Wives: Lawrence v. Texas and the Practice of
Polygamy in Modern America, 11 Wm. & Mary J. Women & L. 131, 133 (2004).
25
The “Church of Jesus Christ of Latter-Day Saints” is the formal name for the Mormon
Church. This article will primarily refer to the “Mormon Church” and its followers as
“Mormons.” In addition, whenever the “Fundamental Mormon Church” or
“Fundamental Mormons” are referenced, it should be understood that Fundamental
Mormon Church encompasses all groups that broke away from the Mormon Church after
the latter renounced the practice of polygamy in 1890. Paul Grant, FACTBOX:
Polygamists in the United States, REUTERS, November 20, 2007,
http://www.rickross.com/reference/polygamy/polygamy746.html.

5
prophet.26 Originally, Smith and the Book of Mormon advocated the belief that

monogamy was the approved form of marriage in the eyes of the church.27

On July 12, 1843, Joseph Smith claimed to have received a revelation from God.28

That revelation provided that “only the truly faithful, which meant only the highest-

ranking church officials, were allowed to practice polygamy.”29 The rationale for this

was that God was male and was polygamous.30 In order to enter the highest levels of

heaven, righteous Mormon men needed to model themselves after God and practice the

principle of plural marriage.31 Only one year after announcing his secret revelation,32

Joseph Smith was murdered in Illinois by an anti-Mormon mob.33

After the murder of Smith, Brigham Young became Smith’s successor and led the

Mormons to what later became the Utah territory.34 After the Mormons arrived in the

Utah territory, the practice of “plural marriage became . . . more difficult to deny.”35

26
Gillett, supra note 9, at 503.
27
Id. at 504-05.
28
Sealing, supra note 7, at 702.
29
David R. Dow & Jose I. Maldonado, Jr., How Many Spouses Does the Constitution
Allow One to Have?, 20 Const. Comment. 571, 574 (2004).
30
Mary K. Campbell, Mr. Peay’s Horses: The Federal Response to Mormon Polygamy,
1854-1887, 13 Yale J.L. & Feminism 29, 34 (2001).
31
Id. at 35.
32
See Sealing, supra note 7, at 702.
33
Jason D. Berkowitz, Beneath the Veil of Mormonism: Uncovering the Truth About
Polygamy in the United States and Canada, 38 U. Miami Inter-Am L. Rev. 615, 620
(2007).
34
See Sealing, supra note 7, at 702; see also Sarah Barringer Gordon, “Our National
Hearthstone”: Anti-Polygamy Fiction and the Sentimental Campaign Against Moral
Diversity in Antebellum America, 8 Yale J.L. & Human. 295, 304 (1996); see also Dow
& Maldonado, supra note 29, at 575.
35
Gordon, supra note 34, at 304.

6
Finally, in August of 1852, the Mormon Church publicly acknowledged that it advocated

the practice of plural marriage.36

Soon after the announcement regarding plural marriage, anti-polygamist

sentiment began to sweep the nation.37 Objectors analogized polygamy to slavery,38 and

anti-polygamy novels began to appear.39 The United States government began taking

measures to eliminate polygamy. It first refused to grant Utah statehood unless it

abandoned the practice of polygamy.40 This was followed by a Congressional attempt “to

gain federal control of Utah by acquiring title to the lands upon which the polygamists

lived.”41 Later, President James Buchanan sent the army into Utah for the purpose of

overturning Brigham Young and ending the practice of polygamy.42 These attempts to

discourage polygamy were in vain, and prompted Congress to take stronger measures.43

The first significant step Congress made to deter polygamy was the Morrill Act of

1862.44 The Morrill act made plural “marriages punishable by a $500 fine or five years

imprisonment.”45 Moreover, the act restricted the property ownership of the Mormon

Church to $50,000.46 The Morrill Act was not very enforceable largely due to the fact

that “it required predominantly Mormon juries to convict their own.”47

36
Sealing, supra note 7, at 702.
37
See Dow & Maldonado, supra note 29, at 575; see also Gordon, supra note 34, at 305.
38
See Dow & Maldonado, supra note 29, at 575.
39
See Gordon, supra note 34, at 305.
40
Berkowitz, supra note 33, at 621.
41
Id.
42
Id.
43
Id.
44
Ward, supra note 24, at 135.
45
Id.
46
Hayes, supra note 6, at 102.
47
Campbell, supra note 30, at 38.

7
 As a result of the Morrill Act’s imperfections, Congress passed the Poland Act in

1874.48 This latter act provided federal jurisdiction over criminal offenses.49 The Poland

Act also allowed new procedures for selecting juries.50

Despite Congress’s actions, the Mormons persisted to defend and practice

polygamy.51 Eventually, “[h]oping for ultimate vindication of their belief in polygamy,

the Mormons set up a test case using Brigham Young’s personal secretary, George

Reynolds.”52 In 1878, the case of Reynolds v. United States reached the Supreme

Court.53 Reynolds claimed his belief in practicing polygamy was protected by the Free

Exercise Clause of the First Amendment of the United States Constitution.”54 The

Supreme Court disagreed with Reynolds and held that the laws prohibiting polygamy

were valid.55

After the Supreme Court’s decision in Reynolds, Congress passed additional

legislation targeting polygamists. In 1882, Congress legislated the Edmunds Act, which

took away certain voting rights for polygamists, and broadly attacked any form of

polygamy by creating the crime of cohabitation.56 The Edmunds Act was followed by

the 1887 Edmunds-Tucker Act.57 The Edmunds-Tucker Act “permitted a wife to testify

against her husband; allowed a third party to bring charges of adultery; authorized the

courts to compel a witness to appear without a subpoena; required the probate courts to

48
Id. at 39.
49
Id.
50
Id.
51
See Sealing, supra note 7, at 703.
52
Id.
53
Reynolds, 98 U.S. 145 (1878).
54
Berkowitz, supra note 33, at 622.
55
See Reynolds, 98 U.S. at 166-67.
56
See Campbell, supra note 30, at 42-46.
57
Id. at 50.

8
certify all marriages; dissolved the fund dedicated to financing Mormon converts’

emigration to Utah; abolished the territorial militia; disenfranchised women; initiated

forfeiture proceedings against the Church; affirmed the Morrill Act’s property limitation

for religious organizations; and reaffirmed the disincorporation of the [Mormon]

Church.”58

Three years after the passage of the Edmunds-Tucker Act, the Mormon Church

finally gave into the government’s pressure.59 “Wilford Woodruff, the last of the

Mormon presidents to have made the great journey westward with Brigham Young,

capitulated.”60 Woodruff61 explained to the members of the Mormon Church that God

“counseled abandoning the legal claim to practice [polygamy] . . . to ensure the survival

of the Church.”62 In 1896, the Utah territory gained its statehood.63

II. THE IMPORTANCE OF REYNOLDS

Reynolds will serve as the focal point for our analysis of the Establishment and

Free Exercise Clauses. Reynolds not only involved polygamy, but was also the first clear

free exercise challenge before the Supreme Court.64 Reynolds is important for two

reasons: 1) the decision’s impact regarding the Free Exercise rights of individuals, and 2)

the Establishment Clause questions raised by the Court’s reasoning in reaching its

decision. Despite that nearly 130 years have passed since the Reynolds decision,

58
Id. at 50-51.
59
Berkowitz, supra note 33, at 623.
60
Dow & Maldonado, supra note 29, at 578.
61
As President of the Mormon Church, Wilford Woodruff was considered a prophet. See
The Doctrine and Covenants of the Church of Jesus Christ of Latter-Day Saints, § 21,
available at http://scriptures.lds.org/en/dc/21/1#1 (providing that the President of the
Mormon Church is called to be a prophet).
62
Dow & Maldonado, supra note 29, at 578.
63
Berkowitz, supra note 33, at 624.
64
See Dow & Maldonado, supra note 29, at 576.

9
majority, concurring, and dissenting opinions continue to reference it for the proposition

that religious actions, not beliefs, are subject to government regulation.65 The path taken

by the Reynolds Court in deciding that actions are regulable is what gives rise to the

Establishment Clause concerns.

A. The Free Exercise Problem with Reynolds v. United States

George Reynolds “asserted that [polygamy] . . . was protected by the Free

Exercise Clause of the First Amendment of the Constitution, despite the fact that it was

intentionally committed in violation of existing . . . law.”66 This argument was rejected

by the Supreme Court, which explained that “[l]aws are made for the government of

actions, and while they cannot interfere with mere religious belief and opinions, they may

with practices.”67 The Court also wrote that “[p]olygamy has always been odious among

the northern and western nations of Europe, and, until the establishment of the Mormon

Church, was almost exclusively a feature of the Asiatic and of African people.” 68

Furthermore, the Court relied on the reasoning of Professor Francis Lieber,69 who

believed that “polygamy leads to the patriarchal principle, and which, when applied to

large communities, fetters the people in stationary despotism, while that principle cannot

long exist in connection with monogamy.”70 Finally, the Court pointed out that if all

religious actions were permitted, “the government might not have the power to stop

65
See e.g., Employment Div. v. Smith, 494 U.S. 872 (1990) (Scalia, J., majority); Church
of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 569 (1993) (Souter, J.,
concurring in part); Wisconsin v. Yoder, 406 U.S. 205, 247 (1972) (Douglas, J.,
dissenting in part).
66
Ward, supra note 24, at 139.
67
Reynolds, 98 U.S. at 166.
68
Id. at 164.
69
Sealing, supra note 7, at n.146 (noting that “Professor Francis Lieber . . . was
considered the country’s most famous law professor of the antebellum period”).
70
Reynolds, 98 U.S. at 166.

10
religious leaders who wished to commit a ceremonial human sacrifice or widows who

wished to commit Sutee, the religious act of throwing oneself on a husband’s funeral

pyre.”71

There are several problems with the Court’s decision to reject George Reynolds’

free exercise claim. First, the Court failed to adequately explain why polygamy

threatened public welfare.72 The Court did provide that civilized society had always been

repulsed by polygamy, but it did not explain why. Instead, the Court merely “cast

polygamy as a historical abomination.”73 Second, the Court’s reliance on Professor

Lieber’s views remains troublesome. Prior to Reynolds, Lieber wrote an intolerant work

on Mormonism.74 This fact suggests that Lieber harbored prejudice towards Mormons.

Moreover, Lieber’s views on polygamy were most likely influenced by Georg Hegel’s

views, which originated from “Hegel’s interpretation of the racially and culturally biased

interpretation of Jesuits observing polygamy in seventeenth and eighteenth century

China.”75 In addition, the Court’s choice to analogize polygamy to human sacrifice and

suicide failed to offer any concrete evidence of the dangers of polygamy.

The Reynolds Court “supported its contempt for the practice of polygamy by

appealing to religious views, biases, and opinions on morality commonly held at the

time.”76 The opinion explains that polygamy is bad, but it does not provide evidence to

support this result. The evidence put forth consisted of the same biased and prejudiced

71
Gillett, supra note 9, at 513.
72
See id.
73
Vazquez, supra note 24, at 228.
74
Gillett, supra note 9, at 514 (noting that Lieber judged Mormon theology to be
“characterized by ‘vulgarity,’ ‘cheating,’ ‘jugglery,’ ‘knavery,’ ‘foulness,’ and as bearing
‘poisonous fruits’”).
75
Sealing, supra note 7, at 714-15.
76
Vazquez, supra note 24, at 229.

11
opinions regarding Mormons and their practice of polygamy. Therefore, because the

Court failed to address the dangers of polygamy with “policy justifications (such as

heightened potential for sexual abuse of children), the Reynolds opinion rings hollow –

an unsubstantiated attack on a religious practice.”77

B. The Establishment Problem with Reynolds v. United States

In Reynolds, the Court’s decision reached further than the Free Exercise Clause, it

also touched on the Establishment Clause. Over the years, the Supreme Court has set

forth various Establishment Clause violations. In Lukumi, the Court provided that the

Establishment Clause “forbids an official purpose to disapprove of a particular religion or

of religion in general.”78 Additionally, the Supreme Court has held that the government

has an obligation to remain neutral when faced with religious differences.79 Furthermore,

“[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government

may not coerce anyone to support or participate in religion or its exercise, or otherwise

act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’”80

In Reynolds, the Court explained that “[m]arriage, while from its very nature a

sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually

regulated by law.”81 The Court’s decision guaranteed that marriage could be defined and

its permissible forms regulated by law. Moreover, the decision promised that religions

adhering to monogamy were not just acceptable—they were exclusive in their suitability

77
Id. at 229-230.
78
Lukumi, 508 U.S. at 532.
79
Sherbert v. Verner, 374 U.S. 398, 409 (1963).
80
Lee v. Weisman, 505 U.S. 577, 587 (1992).
81
Reynolds, 98 U.S. at 165.

12
for democracy. Accordingly, the Reynolds’ Court effectively “established” religions

practicing monogamy by deeming their view of marriage authoritative.82

III. A HYPOTHETICAL SITUATION

The Utah Constitution provides: “Perfect toleration of religious sentiment is

guaranteed. No inhabitant of this State shall ever be molested in person or property on

account of his or her mode of religious worship; but polygamous or plural marriages are

forever prohibited.”83 Like most constitutions, Utah’s Constitution can be revised or

amended.84 Governmental figures in Utah have questioned whether a ban on polygamy is

constitutional.85 In spite of Utah’s clear ban on polygamy, Utah has a considerable

number of polygamous families,86 but individuals are rarely ever prosecuted under Utah’s

laws proscribing polygamy.87

Utah may decide to change its laws because legalization of polygamy will curb

the abuses committed by some of its practitioners.88 This assertion originates from the

fact that current laws targeting polygamists force them to live reclusive existences outside

of society.89 History shows that polygamists originally desired to practice their beliefs

openly.90 However, after the Mormon Church and the government agreed to outlaw

polygamy, those desiring to continue practicing polygamy broke away from mainstream

82
See Dow & Maldonado, supra note 29, at 586.
83
UTAH CONST. Art. III.
84
UTAH CONST Art. XXIII.
85
Gillett, supra note 9, at 499-500 (supplying the views of former Utah Governor Mike
Leavitt and Senator Orrin Hatch on polygamy and the First Amendment).
86
Berkowitz, supra note 33, at 617.
87
Id.
88
Alyssa Rower, The Legality of Polygamy Using the Due Process Clause of the
Fourteenth Amendment, 38 Fam. L. Q. 711, 728 (2004).
89
See id. at 719.
90
See id. at 718.

13
society.91 As a result, similar abuses that occur in mainstream society transpire in

polygamist compounds with minimal oversight from law enforcement. Polygamy does

not require individuals to commit such abuses, but its marginalization provides a haven

for people who would commit crimes against women and children. Accordingly,

legalization could very well result in bringing polygamists out of the underground and

allow their practices to become scrutinized by government, which would help solve

problems commonly associated with polygamy.92 Given the current raid on polygamists

in East Texas where members were suspected of forcing underage females into

marriage,93 States like Utah, which has a considerable number of polygamists, could

determine that the best way to fight social evils associated with polygamy is by

recognizing polygamous marriages.

If Utah desired to change its ban on polygamy, it would need to amend its

Constitution, and also eliminate its anti-polygamy statute.94 These two steps would not

harm Utah’s current ban on child polygamy,95 but would legitimize polygamous

relationships between consenting adults within the State. Further, Utah would need to

pass a statute recognizing polygamous unions in order to clearly legalize polygamy. A

hypothetical enabling statute could provide for consenting adults to enter into

polygamous unions. For the purpose of this analysis, it will be assumed that the

hypothetical statute permits a man or woman to marry more than one member of the

91
See id. at 719.
92
See Hayes, supra note 6, at 129.
93
Michelle Roberts, 400+ Kids Taken From Polygamist Compound, MYWAY, April 7,
2008, available at http://apnews.myway.com/article/20080408/D8VTBVJO0.html.
94
Utah Code Ann. § 76-7-101(1) (West 2007) (banning second marriages or cohabitation
with another member of the opposite sex).
95
Utah Code Ann. § 76-7-101.5 (West 2007) (banning second marriages or cohabitation
with a member of the opposite sex who is under the age of eighteen).

14
opposite sex, but would not permit or recognize homosexual unions.96 Furthermore, for

purposes of clarity, the hypothetical statute will be referred to as the “Freedom of

Marriage Act” (“FOMA”).

If Utah were to pass FOMA, it would constitute a significant departure from the

way marriage has been viewed throughout the history of the United States.97

Undoubtedly, it would precipitate large debate and offend numerous religious groups that

maintain a valid marriage exists only between one woman and one man. It would also

challenge the validity of Reynolds. Also, both groups opposing and supporting the statute

might bring constitutional challenges based on the Free Exercise and Establishment

Clauses.

For opponents of FOMA, their free exercise challenge might look similar to that

found in Mozert v. Hawkins County Bd. of Education.98 In Mozert, parents of school

children brought a free exercise challenge because their children had to read from

textbooks that contained themes that allegedly burdened their free exercise of religion.99

Similarly, individuals could base a free exercise claim to the Utah statute by showing the

statute offends their religious beliefs. At first glance, such a claim may not appear viable

as individuals bringing the claim would be hard-pressed to show how their rights of free

exercise have been burdened by allowing others to practice alternative forms of marriage.

However, given that the State of Utah has never permitted polygamy100—it in fact banned

96
The reasoning for the hypothetical statute not permitting or recognizing homosexual
unions is because, as stated in the introduction, discussion of such unions extends beyond
the scope of this article.
97
See Reynolds, 98 U.S. 145.
98
827 F.2d 1058 (6th Cir. 1987).
99
Id. at 1060-61.
100
UTAH CONST. Art. III.

15
it “forever”—and that polygamy could now pose a threat to forms of marriage recognized

by numerous religious groups, it becomes evident that a free exercise argument against

the hypothetical statute could emerge. Furthermore, individuals might claim that FOMA

serves as a constant threat to the freedom to enter religiously affiliated monogamous

unions.

In addition, those against FOMA could also claim that the government of Utah

has established a religion. Opponents could argue that most practitioners of polygamy

are members of the Fundamental Mormon Church and the statute, even if neutral on its

face, offends the Establishment Clause because it seeks to confer a disproportionate

benefit on Fundamental Mormons. Moreover, opponents would likely argue that the

statute at issue clearly fails the Lemon test in order to support their Establishment Clause

defense.

On the other hand, proponents of FOMA could make strong arguments supporting

the statute. As the statute relates to the Free Exercise Clause, proponents could argue that

Reynolds was unconstitutional at the time of the decision or, in the alternative, should be

overruled in light of modern free exercise jurisprudence such as Church of Lukumi

Babulu Aye v. City of Hialeah.101 In Lukumi, the Supreme Court found that statutes

preventing ritual animal sacrifice were invalid because they unfairly targeted members of

the Santeria religion.102 Similarly, FOMA proponents might argue that the anti-

polygamy legislation of the nineteenth century unfairly targeted members of the Mormon

Church. Regarding the Establishment Clause argument, proponents would likely argue

101
508 U.S. 520 (1993).
102
Id. at 535.

16
that Reynolds had the effect of establishing religion because its decision favored those

religions that practice only monogamous unions.

IV. FINDING THE RIGHT TEST

If a challenge to FOMA came before the Supreme Court, the Court may apply

prior tests used in cases involving the Religion Clauses. As it relates to Free Exercise

challenges, the Supreme Court could apply either the test from Employment Div. v.

Smith,103 or the test from Sherbert v. Verner.104 Establishment Clause challenges have

typically been analyzed using the Lemon test,105 the Coercion test,106 or the Endorsement

test.107

A. Problems With Finding a Free Exercise Clause Test

In analyzing free exercise claims, the decisions of the Supreme Court have

grappled with development and application of clear, consistent tests. In Smith,108 Justice

Scalia, writing for the majority, declared that free exercise claims involving the

application of neutral and generally applicable laws need not be examined under the

Sherbert test.109 However, Justice Scalia did note that “hybrid” cases involving more

than just free exercise questions have and could warrant a compelling interest analysis.110

Despite Justice Scalia’s sentiments, the decision in Smith led Congress to later pass the

103
494 U.S. at 882-89 (providing that neutral, generally applicable statutes involving the
Free Exercise Clause are not required to undergo strict scrutiny analysis).
104
374 U.S. 398, 406 (1963) (holding that strict scrutiny is the proper standard for
evaluating unemployment claims related to the Free Exercise Clause).
105
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
106
Lee, 505 U.S. at 592.
107
Lynch v. Donnelly, 465 U.S. 668, 691 (1984).
108
494 U.S. at 876.
109
374 U.S. at 406.
110
See Smith, 494 U.S. at 874.

17
Religious Freedom Restoration Act of 1993,111 which required the government to show a

compelling state interest whenever citizens’ free exercise rights are hindered. RFRA was

subsequently held unconstitutional in City of Boerne v. Flores as it applies to States.112

Later, the Lukumi case provided that statutes that are not neutral or generally applicable

“must be justified by a compelling governmental interest and must be narrowly tailored

to advance that interest.”113

The initial inquiry into the free exercise claims asks whether FOMA should be

tested under the compelling state interest test set forth in Sherbert,114 or if it should be

held to the lower level of scrutiny Justice Scalia advocated. Justice Scalia’s opinion in

Smith also provided that the Sherbert test is proper whenever the Supreme Court is faced

with a “hybrid” situation involving “the Free Exercise Clause in conjunction with other

constitutional protections.”115 Justice Scalia’s effort to distinguish Smith from prior cases

invoking the Sherbert test frustrates efforts to clearly distinguish which test would apply

if FOMA were challenged. More specifically, Smith involves a situation where the

challenged State statute serves to proscribe certain actions.116 Justice Scalia wrote that

the Sherbert test cannot be used to invalidate laws that the State is free to regulate.117 On

the other hand, FOMA acts to validate behavior that the State has the authority to

regulate.118 Furthermore, since FOMA creates free exercise arguments for proponents

111
42 U.S.C. §§ 2000bb to 2000bb-4 (1993) [hereinafter RFRA].
112
521 U.S. 507, 511 (1997).
113
Lukumi, 508 U.S. at 521.
114
Sherbert, 374 U.S. at 406.
115
See Smith, 494 U.S. at 874.
116
See id.
117
Id. at 878-79.
118
This assertion stems from the fact that Utah and other States have laws prohibiting
polygamy. Since no current Federal ban on polygamy exists, but States are able to ban

18
and opponents of polygamy, the level of scrutiny used in evaluation of the statute could

prove dispositive.

FOMA’s opponents are unlikely to present an argument that would invoke a

Sherbert test analysis. First of all, assuming FOMA’s opponent’s free exercise claims are

similar to those brought by the parents in Mozert,119 it is unlikely they can raise a

“hybrid” claim. Aside from the fact that some opponents’ religious practices may be

offended, their free exercise argument involves only their ability to freely exercise their

religion and not an additional fundamental right or liberty interest. This burden on free

exercise rests on the idea that polygamy threatens to undermine any individual’s attempt

to only engage in monogamy as recognized by a religion.120 Further, the opponents’

situation does not appear analogous to the Santeria practitioners in Lukumi—FOMA does

not target monogamists in such a way that prohibits their continued ability to practice

monogamy. Accordingly, FOMA appears neutral and generally applicable in relation to

the free exercise rights of the citizens of Utah. Therefore, under the circumstances,

FOMA would likely be analyzed under the test set forth in Smith. Since the standard

provided by Smith is deferential to the lawmaking authority of states, the Supreme Court

would likely uphold FOMA because it is a neutral and generally applicable statute.

polygamy, it logically follows that States have legislative power to criminalize or

legitimize polygamy.
119
827 F.2d 1058.
120
For example, a participant in a monogamous union could now face a situation where
their partner decides to take on another spouse. FOMA would require both current
spouses to consent to the arrangement involving a new spouse. Accordingly, a person
desiring to remain monogamous is faced with a tough decision, divorce or allowance of
the plural relationship, because FOMA permits such unions to occur. Therefore, in
allowing plural marriages, FOMA serves as a perpetual threat to monogamous marriages
entered into as an observance of a religious belief.

19
 Assuming for the sake of argument that the Supreme Court determined that

FOMA should be analyzed using the Sherbert test, it is possible that FOMA’s proponents

could show that Utah’s interest is both compelling and narrowly tailored to achieve that

interest. Utah could point to the following concrete examples that comprise a compelling

governmental interest: (1) combating welfare and tax fraud by polygamists and (2)

creating methods to more efficiently target abuses associated with Fundamental

Mormons.121

First, “fraud and misuse of government funding is a chronic problem in the

polygamy communities.”122 Women who are in polygamous marriages are not legally

married according to state records and are able to “file welfare claims as single mothers

in need of child support.”123 This practice flourishes in spite of anti-polygamy laws

because such laws are generally not enforced.124 As a result, “[t]he welfare fraud that

occurs within these communities of enormous families has already cost the government,

and American society as a whole, millions of dollars.”125 Naturally, legalizing polygamy

would allow the State to force polygamists to register all of their marriages, which would

assist in preventing welfare fraud and lower the amount of government assistance

available to polygamists. 126 As a result, polygamist women would no longer be viewed

as single mothers in the eyes of the State.127 Patriarchs would no longer have the

monetary incentive to take on more wives and would have to find other ways of

121
Rower, supra note 88, at 728 (discussing the advantages that legalization of polygamy
could create).
122
Berkowitz, supra note 33, at 637.
123
Ward, supra note 24, at 148.
124
See Gillett, supra note 9, at 498-99.
125
Ward, supra note 24, at 148.
126
Rower, supra note 88, at 728 (2004).
127
See id.

20
providing for their large families.128 Therefore, legalization would work to prevent future

welfare abuses that currently serve as an extra incentive to participate in such unions.129

Second, Utah’s current anti-polygamy laws, as well as the anti-polygamy laws of

other states, are generally not enforced.130 The reason for this lack of enforcement stems

from the reclusive nature of polygamists.131 Polygamists tend to live outside of

mainstream society, desire to be left alone, and tend to be left alone by law

enforcement.132 This lack of enforcement allows crimes such as rape, incest, and other

abuses to go undetected and, consequently, unpunished.133 Utah has a “compelling

interest in keeping underage girls safe from sexual abuse and forced marriage, a practice

intimately tied to the history of polygamy in Utah.”134 Given the current example of the

situation in East Texas where the response to a phone call reporting child abuse resulted

in the storming of a polygamous compound and removal of more than 400 children,135 it

is clear that Utah has an interest in preventing similar situations in its own state. The East

Texas situation involved polygamists living in a compound secluded from mainstream

society, which is similar to other polygamist groups. Such groups are able to live away

from society, in part because of the large amount of government welfare they receive.

Legalization of polygamy will mean that polygamists can no longer afford to live outside

128
Id.
129
See id.
130
See generally Catherine Blake, The Sexual Victimization of Teenage Girls in Utah:
Polygamous Marriages Versus Internet Sex Predators, 7 J.L. & Fam. Stud. 289 (2005).
131
Id.
132
See generally Berkowitz, supra note 33, at 617.
133
See generally Blake, supra note 130.
134
Catherine Blake, I Pronounce You Husband and Wife and Wife and Wife: The Utah
Supreme Court’s Re-affirmation of Anti-polygamy Laws in Utah v. Green, 7 J.L. & Fam.
Stud. 405, 405-06 (2005).
135
Roberts, supra note 93.

21
of society without welfare. This will result in two major changes: 1) polygamists will

have an incentive to return to society so that they may gain access to money and

resources, and 2) there is an additional incentive to do so because they will be allowed to

practice plural marriage among society without fear of criminal sanctions. As a result,

the marriage practices of polygamists will enter the watchful eye of society, which will

better enable Utah’s government to decrease abuses involving both women and children.

Therefore, Utah’s compelling state interest in preventing such abuses will be furthered by

FOMA.

If FOMA was forced to meet a compelling state interest standard, it could

arguably survive the Supreme Court’s standards. It is logical that the Supreme Court

could find FOMA, as it found the tax regulation in United States v. Lee, valid based on

Utah’s “broad public interest” in preserving the integrity of its welfare system and in

combating sexual abuses that occur under the veil of seclusion in Fundamental Mormon

compounds.136

B. Problems With Finding an Establishment Clause Test

The Supreme Court has created several tests when handling controversies

involving the Establishment Clause. The Coercion and Endorsement tests have been

considered in controversies involving government sponsored religious

expression,137religious symbols on government property,138 and religious studies in

136
455 U.S. 252, 260 (1982).
137
Lee, 505 U.S. 577.
138
Lynch, 465 U.S. 668.

22
public schools.139 The Supreme Court has invoked the Lemon test in a wide variety of

situations.

1. FOMA Under the Coercion Test

In Lee v. Weisman, Justice Kennedy’s majority opinion developed the Coercion

test.140 The Lee case decided that prayers at public high school graduations were

unreasonably coercive and, therefore, violated the Establishment Clause.141 The Lee

Court found the Plaintiffs’ rights under the First Amendment were unreasonably

burdened because they were effectively forced to participate in the school-sponsored

prayer.142 FOMA does not fall within the scope of the prohibition in Lee. FOMA allows

alternative forms of behavior without forcing or coercing anyone to engage in such

behavior. FOMA does permit behavior that may offend others, but Lee explicitly “[did]

not hold that every state action implicating religion is invalid if one or a few citizens find

it offensive.”143 In a diverse society, individuals or groups may find plural marriage

offensive to their own beliefs, but this does not mean FOMA should be held invalid.
Further, FOMA’s context is different from Lee because FOMA involves Utah permitting an
activity, whereas Lee dealt with a government-sponsored entity supporting a religious act.
Therefore, FOMA is valid under Lee’s Coercion test.
2. FOMA Under the Endorsement Test
Justice O’Connor devised the Endorsement test in her concurring opinion in Lynch
144
v. Donnelly. In Lynch, Justice O’Connor observed that government endorsement of
religion was troublesome because it sent “a message to nonadherents that they are outsiders

139
Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707, 712 (M.D.Pa. 2005).
140
505 U.S. at 592.
141
Id.
142
Id. at 594.
143
Id. at 597.
144
Lynch, 465 U.S. at 691.

23
. . . and an accompanying message to adherents that they are insiders, favored members of
the political community. ” 145 The current laws criminalizing polygamy send the message
that polygamists are outsiders, but FOMA would not create an opposite effect. FOMA
does not disapprove of monogamy; it approves of monogamy and polygamy. This is
because the statute permits polygamous unions, but does not deny individuals the right to
engage in monogamy. Further, FOMA does not advocate for either monogamy or
polygamy. Therefore, FOMA would withstand an Endorsement test analysis because it
would not create a situation where the government would be endorsing a particular form of
marriage.

3. FOMA Under the Lemon Test

The case of Lemon v. Kurtzman146 first established the Supreme Court’s test that

forced statutes to meet the following requirements: “a secular legislative purpose, . . . [a]

principal or primary effect . . . that neither advances nor inhibits religion, . . . [and] the

statute must not foster ‘an excessive government entanglement with religion.’”147

However, it is important to note that members of the Supreme Court have criticized the

Lemon test.148 Nevertheless, when analyzing FOMA in connection with an

Establishment Clause challenge, the Supreme Court might apply the Lemon test.

If FOMA is forced to undergo Lemon test scrutiny, opponents and proponents

would certainly disagree in arguing each prong of the test. Opponents would no doubt

argue that FOMA spawns a situation creating a “subtle—and more insidious—form of

145
Id. at 688.
146
403 U.S. 602 (1971).
147
Id. at 612-13.
148
Justice Antonin Scalia wrote that Lemon was “[l]ike some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly
killed and buried . . . .” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508
U.S. 384, 398 (1993) (Scalia, J., concurring in the judgment) (citing numerous critiques
of the Lemon test).

24
establishment . . . [occurring] when a particular church (or group of churches) is

nonofficially privileged or deemed authoritative.”149 They would claim that FOMA does

not merely permit plural marriage, but that FOMA’s legalization of polygamy suggests

the State approves plural forms of marriage. On the other hand, proponents would

undoubtedly counterattack by citing the previously mentioned compelling governmental

interests served by FOMA. In addition, proponents would likely contend that Reynolds

established religions preferring monogamous marriage, and FOMA only seeks to remedy

prior unconstitutional prohibitions on benign religious practices.

Lemon’s first prong requires that FOMA “have a secular legislative purpose[.]”150

The purpose prong does not require that FOMA’s purpose be unaffiliated with religion.151

The purpose must remain neutral and not promote a specific religious view.152 Moreover,

the secular legislative purpose need not be the only articulable purpose.153 Purported

secular purposes may be found lacking if such purposes only approve one type of

behavior or belief associated with religion.154

Admittedly, FOMA is not unaffiliated with religion. It seeks to legitimize unions

that are most frequently practiced by Fundamental Mormons. However, FOMA is

neutral because, although it enables polygamous unions, it does not prevent individuals

who object to polygamy from adhering to monogamous relationships. FOMA seeks only

to expand possible forms of marriage—not restrict or promote a particular form. In

149
Dow & Maldonado, supra note 29, at 586.
150
Lemon, 403 U.S. at 612 (1971).
151
See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 335 (1987) (explaining that what is required of government
is neutrality and abstention from promoting particular religious points of view).
152
Id.
153
See Lynch, 465 U.S. at 680-81.
154
See Santa Fe Independent School District v. Doe, 530 U.S. 290, 308-10 (2000).

25
addition, FOMA legalizes marriages that were once criminal. The decriminalization of

polygamy is directed towards bringing polygamists out of seclusion in order to prevent

welfare fraud and sexual abuse. For the foregoing reasons, FOMA could logically pass

the purpose prong of the Lemon test.

The second prong of Lemon requires FOMA’s “principal or primary effect must

be one that neither advances nor inhibits religion[.]”155 FOMA can be found to have an

illegitimate primary effect if the Utah government used its own activities or influence to

advance religions that permit polygamy.156 If FOMA accommodates the religious

practice of polygamy while impinging upon others’ free exercise rights, it may have an

impermissible primary effect of advancing religion.157 Additionally, an act conferring

benefits may have a legitimate primary effect if religious affiliation is not a requirement

for receipt of benefits.158 Also, a neutral statute that does not confer a benefit on a

specific religious institution does not have a primary effect of advancing religion.159

FOMA does not have an effect that advances or inhibits religion. What FOMA

does is permit those practicing polygamy to do so in public and without fear of

prosecution. More importantly, FOMA does not prefer polygamy to any other form of

marriage. Individuals remain free to practice monogamy. Further, FOMA does not carve

out an exemption solely for members of the Fundamental Mormon Church. Various

religions also practice polygamy. For example, there are Christian groups that advocate

155
Lemon, 403 U.S. 602, 612 (1971).
156
Church of Latter Day Saints v. Amos, 483 U.S. 327, 335 (1987).
157
See generally Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (holding that a
State exemption statute granting employees an absolute right to observe the Sabbath had
an impermissible effect of advancing a religious practice).
158
See Bowen v. Kendrick, 487 U.S. 589, 608-09 (1988) (noting that religious groups can
receive aid from the government if religious affiliation is not a requirement).
159
See id. at 609-10.

26
polygamy.160 The benefits of FOMA are available to any adults who form a shared

agreement to enter into a polygamous union. Accordingly, FOMA allows consenting

adults more freedom to define marriage without government interference. Therefore,

since FOMA’s benefits are equally available to those wishing to practice polygamy for

secular and religious purposes, the effect prong of the Lemon test is not violated.

Finally, Lemon’s last prong demands that FOMA “not foster ‘an excessive

government entanglement with religion.’”161 Complete separation of church and state is

not possible, but the Religion Clauses should avoid an excessive entanglement between

government and religion.162 Statutes that provide for a greater separation between church

and state pass scrutiny under the entanglement prong of the Lemon test.163 “A litigant

cannot, by the very act of commencing a lawsuit . . . create the appearance of divisiveness

and then exploit it as evidence of entanglement.”164 The line at which entanglement

becomes excessive “is a blurred, indistinct, and variable barrier depending on all the

circumstances of a particular relationship.”165 Excessiveness may be determined by

examining “the character and purposes of the institutions that are benefited, the nature of

the aid that the State provides, and the resulting relationship between the government and

the religious authority.”166

The final prong of the Lemon test is where the analysis becomes complicated.

The mere presence of a First Amendment challenge to FOMA is not dispositive of

160
See e.g., http://www.truthbearer.org. (http://www.truthbearer.org is a website for one
of many organizations that promote Christian polygamy).
161
Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).
162
Walz v. Tax Commission of City of New York, 397 U.S. 664, 670 (1970).
163
Church of Latter Day Saints v. Amos, 483 U.S. 327, 339 (1987).
164
Lynch v. Donnelly, 465 U.S. 668, 684-85 (1984).
165
Lemon v. Kurtzman, 403 U.S. 602, 615 (1971).
166
Id. at 615.

27
excessive entanglement. Whether FOMA would result in an entanglement that is

excessive would have to be analyzed by a thorough examination of the relationship that

results from the passage of FOMA. First, FOMA would force the Utah legislature “to

amend statutes dealing with divorce, taxes, and trusts and estates to reflect the familial

change.”167 Such changes would undoubtedly have uncertain long-term ramifications. In

addition, the federal tax system would have to make adjustments.168 Prior cases show the

Federal Government’s unwillingness to change its procedures in order to accommodate

religious practices.169 The issue related to taxation and altering governmental procedures

may not be decisive, but if the argument that legalizing polygamy may increase the

current abuses associated with polygamy proves true,170 the government would only

become more entangled with the practice of polygamy—not less. This latter point is

certain to be one that FOMA’s opponents would strongly advocate. Again, the current

situation in East Texas provides an example of how excessively entangled the

government can become when dealing with polygamists and threats of child abuse.171

The East Texas raid on the Fundamental Mormon compound has resulted in over 400

children being removed from their mothers and placed in the custody of the State.172

However, the reason for such drastic measures stems from the fact that Texas believes it

167
Rower, supra note 88, at 729.
168
Id.
169
See United States v. Lee, 455 U.S. 252, 252 (1982) (holding that a religious exemption
accommodating an Amish religious belief in nonparticipation in the area of taxation
would unduly interfere with the governmental interest in enforcing the application of tax
laws); see also Bowen v. Roy, 476 U.S. 693, 693 (1986) (holding that individuals do not
have a right under the Free Exercise Clause to dictate the conduct of the Government’s
internal procedures).
170
See Berkowitz, supra note 31, at 639-40.
171
Roberts, supra note 93.
172
Id.

28
has no other option. This is because the isolation of polygamists in East Texas made it

nearly impossible for the Texas authorities to react to reports of child abuse without

raiding the compound and investigating the identities of all individuals.173 If legalized,

future situations such as this might be avoided if FOMA successfully assimilated

polygamists into mainstream society.

The lengthy analysis under this section and the Free Exercise Clause section

shows only a glimpse of possible questions the Supreme Court may have regarding

FOMA, applying constitutional tests, overruling precedent, and resolving the conflict

between the Religion Clauses. Accordingly, the difficulty in predicting the result of a

free exercise or establishment challenge to a statute like FOMA is evidence of the need

for a more unifying test.

C. The Liberty Test174

Given the long line of Supreme Court cases involving the Religion Clauses, there

is no current test that clearly shows the area of tension175 created by the Constitution’s

mandate that the government abstain from passing laws “respecting an establishment of

religion, or prohibiting the free exercise thereof.”176 In Lee v. Weisman, the Supreme

Court pointed out that government accommodation of religion must not offend the

173
Amanda Townsend & Gary Tuchman, A Dark History Repeats for Religious Sect,
CNN, April 11, 2008, available at http://www.cnn.com/2008/CRIME/04/10/polygamist.
towns/index.html?iref=newssearch
174
The Liberty test is my own creation. It is derived from prior cases involving the
Religion Clauses and law review articles discussing polygamy.
175
See Texas Monthly Inc. v. Bullock, 489 U.S. 1, 42 (1989) (Scalia, J., dissenting)
(noting “the already narrow ‘channel between the Scylla [of what the Free Exercise
Clause demands] and the Charybdis [of what the Establishment Clause forbids] through
which any state or federal action must pass in order to survive constitutional scrutiny’”)
(quoting Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 721
(1981) (Rehnquist, J., dissenting)).
176
U.S. CONST. amend I.

29
Establishment Clause.177 In other words, the government may accommodate religion via

the Free Exercise Clause, but cannot do so in a way that would tend to establish religion.

Further, the Establishment Clause requires not only that the government remain neutral

among religions, but also between religion and irreligion.178 The Free Exercise Clause

promotes this neutrality, and permits the government to enact neutral laws that may

consequentially burden religious practices as long as the law does “not [single] out a

particular religious practice.”179 In addition, neither the states nor the Federal

Government may impose “restraints upon the free exercise of religion . . . [or

discriminate] against particular religious groups.”180 These general maxims serve as a

starting point for the creation of the proposed test—the Liberty test.

The Liberty test consists of the following requirements: (1) laws may not require

verbal or physical affirmations regarding religion or irreligion,181 (2) laws may not coerce

individuals towards a particular religion or irreligion,182 (3) laws may not prevent

individual actions that do not hinder the liberty of others or have an indirect effect of

hindering the liberty of others,183 and (4) any law tending to conflict with one of these

rules must be supported by a compelling governmental interest that is narrowly tailored

177
505 U.S. 577, 578 (1992).
178
See generally Bowen v. Kendrick, 487 U.S. at 607.
179
Dow & Maldonado, supra note 29, at 585.
180
Everson v. Board of Education, 330 U.S. 1, 14 (1947).
181
See Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1066 (6th Cir. 1987)
182
See Engel v. Vitale, 370 U.S. 421, 431 (1962) (stating that “[t]he history of
governmentally established religion, both in England and in this country, showed that
whenever government had allied itself with one particular form of religion, the inevitable
result had been that it had incurred the hatred, disrespect and even contempt of those who
held contrary beliefs.”)
183
See generally Dow & Maldonado, supra note 29, at 586-97.

30
to accomplish its objective.184 These standards will ensure that individuals shall be free

to exercise religious beliefs and actions as long as such actions do not impinge upon the

liberty of others or prevent the government from functioning. Further, the Liberty test

will protect individual actions, so long as such actions do not interfere with the rights of

others. The injection of the concept of individual liberty into the test hopes to prevent

inefficient moral legislation by the government.185 In addition, the government is

prohibited from actions that coerce individuals towards religion or irreligion, which

encompasses the basic Establishment Clause protections. Ultimately, the Liberty test

does offer the government to pass legislation restricting individual liberty, but only when

the government’s interest is superior to that of the individual.

D. Applying the Liberty Test

Under the new test, FOMA would easily pass the first prong—no physical or

verbal affirmations are required. Likewise, the second prong is met because permitting

polygamous marriages would not coerce individuals towards a particular religion.

Instead, FOMA would merely permit individuals who desire to practice different forms

of marriage that they believe in, regardless of religious or irreligious beliefs. The third

and fourth prong, however, warrant a more detailed analysis.

184
Sherbert, 374 U.S. at 406.
185
For example, polygamy may be considered inefficient moral legislation because laws
criminalizing polygamy are not enforced. However, the laws have effectively kept
polygamists apart from society. This alienation has afforded male polygamists the
opportunity to abuse women and children with minimal intervention from the law.
Furthermore, polygamists are able to collect large amounts of welfare because their
additional marriages are viewed as invalid.

31
 1. Analyzing the Third Prong

At first glance, it appears the third prong of the Liberty test is easily met: allowing

polygamy will not hinder the liberty of individuals who desire to enter into such

marriages. However, anti-polygamists argue that polygamy fosters criminal and

defective behavior, which conceivably has direct and indirect effects of hindering the

liberty of others.186 The primary fear of those opposed to polygamy is that children in

polygamous households will be subject to sexual abuse or underage marriage.187

Additionally, there is a concern that polygamy results in marriage where women have

significantly less power than their male counterparts.188 Finally, opponents of polygamy

point out that polygamists frequently engage in welfare and tax fraud, and exist in highly

impoverished settings.189 A prime example of this latter problem is found in Utah’s

Colorado City. “Colorado City . . . is one of the poorest cities in America, dependent

almost entirely on welfare since none of the men in the community earn[s] enough to

support their plural wives.”190

Admittedly, the available information suggests that sexual abuse of children does

occur in polygamous groups, and even polygamy advocates admit such abuses happen.191

But the same advocates also point out that similar abuses can be found throughout

monogamous culture.192 “[N]o reported studies and no reliable data suggest that minor

children are coerced into marriage in a polygamous society in any greater numbers than

186
See generally Ward, supra note 24, at 145-51.
187
See generally Vazquez, supra note 24, at 240.
188
See Dow & Maldonado, supra note 29, at 604.
189
Vazquez, supra note 24, at 244.
190
Id.
191
Hayes, supra note 7, at 105.
192
Id. at 106.

32
they are in monogamous cultures.”193 Further, polygamy advocates contend that the

marginalization of polygamists has created an environment that permits abuse to manifest

itself.194 Polygamists who desire to abuse others realize that their deeds are likely to go

unpunished by authorities.195 “Many abusive parents in polygamous marriages tell their

children that, because polygamy is illegal, the parents will be arrested if children report

crimes to the authorities.”196 Therefore, legalization of polygamy would likely diminish

the marginalization of polygamists and, more importantly, permit the government to

more efficiently regulate and prosecute those who engage in improper contact with

children.197

With respect to the fears concerning unequal bargaining power in polygamous

relationships, it is important to note that this concern is not unique to Mormons who

practice polygamy. Other religions foster sexist marriages as well.198 For example,

“Orthodox Jews . . . permit the man to divorce his wife but require that the man assent if

the woman seeks to divorce.”199 Islam and certain Christian denominations also stress

the importance of the woman’s subservience to the male.200 Accordingly, while gender

equality may be a goal of civilized democracy, no evidence suggests polygamy offends

that goal on a greater level than certain legitimate, monogamous unions inspired by

religious beliefs.201

193
Dow & Maldonado, supra note 29, at 604.
194
Hayes, supra note 6, at 107.
195
See id.
196
Vazquez, supra note 24, at 243.
197
See Rower, supra note 88, at 728.
198
Dow & Maldonado, supra note 29, at 605.
199
Id.
200
Id.
201
See id.

33
 There is no doubt that some polygamists defraud the government and live in

poverty. This situation results from the government’s inability to record plural marriages,

allowing the women to “remain single mothers in the eyes of the state, leaving them free

to take liberties with welfare applications and understated income on tax forms.”202 The

absence of marriage records makes such fraud incredibly difficult to prosecute.203

Further, although these situations do occur, there remains “no reliable data suggesting

that children of polygamous families are uniquely and significantly disadvantaged from

an economic or emotional standpoint.”204 It appears that “households suffering economic

privation are as often single-parent homes as they are multiple parent homes.”205

However, if polygamy were legalized, polygamists could be made to register their

multiple marriages.206 This would greatly curb the unauthorized subsidies polygamists

currently receive through fraudulent practices.207 By removing their current source of

funding, polygamists who presently survive by way of fraud could no longer afford to

live outside the government’s perception.

Finally, the third prong of the Liberty test demands the careful inquiry provided

above. Such vigilant examination of polygamy shows its presumptive problems to be

more accurately characterized as consequences of criminalization. In addition, the

historical failure of the government to enforce laws against polygamy, which is rarely

prosecuted, and almost never prosecuted apart from other crimes, suggests that

legalization of polygamy would allow the government to more efficiently deter and

202
See Vazquez, supra note 24, at 244-45.
203
Id.
204
Dow & Maldonado, supra note 29, at 607.
205
Id.
206
Rower, supra note 88, at 728.
207
Id.

34
prosecute offenses of greater significance. Legalization would reduce the

marginalization of polygamists, which would permit authorities more access to

investigate reports of abuse or other crimes. A return to mainstream society would also

create an incentive for polygamists to fit into society. This would result in Fundamental

Mormons policing members of their respective organizations in order to accumulate good

will within society. Therefore, legalization would result in more government oversight

into polygamous households, and would pressure polygamists to adapt to the

uncontroversial civil norms of society—both of which would serve State interests better

than the current laws banning polygamy.

2. Analyzing the Fourth Prong

Analysis of the Liberty test’s last prong is important. As noted above, 208 FOMA

might pass the Supreme Court’s compelling state interest test based on Utah’s interest in

promoting religious liberty and preventing abuses that could otherwise proceed

unchecked. The purpose of incorporating the compelling state interest analysis into the

Liberty test is to prevent individual actions from undermining governmental authority in

the name of religious liberty. For example, consenting adults would be permitted to

engage in plural marriages, but there is no doubt the government’s interest could prevent

that free exercise from extending to minors. Admittedly, many acts that traditionally

have been considered illegal could be challenged and liberated under the Liberty test.

However, the Liberty test ensures order by mandating that individual actions cannot take

precedence over the liberty of others or the ultimate interests of government.

208
See § II, A, pages 18-20.

35
 CONCLUSION

Legalizing polygamy would permit greater scrutiny of the private lives of

polygamists.209 Since the Mormon Church officially denounced polygamy in 1890, the

practice went underground and has continued in isolated areas outside of the law.210

More notably, since that time, “there have been only two instances in which the

government has prosecuted [individuals for the crime of polygamy].”211 This last point

shows that historically the government’s attitude toward polygamy has effectively been

toleration. Continued toleration will not solve the problems currently associated with

polygamy. Only legalization could allow for regulation of polygamy and permit

polygamists to join mainstream society.212

Furthermore, the Liberty test alleviates the tension between the Religion Clauses

in the context of polygamy, and illuminates the proper course of action for the

government. The test promotes religious liberty and tolerance in a society that continues

to grow more exponentially diverse. The importance of such liberty not only supports

orderly furtherance of dissimilar acts and beliefs, but also protects and preserves

traditional acts and beliefs that may one day become unconventional.

209
See Hayes, supra note 6, at 128.
210
See Rower, supra note 88, at 719.
211
Id.
212
See id. at 729.

36