Polygamy after Windsor: What's Religion Got to Do with It?

Abstract

Ever since the 1878 case, Reynolds v. United States, polygamists have argued that their plural marriage practices are protected by the Free Exercise Clause of the First Amendment. After Lawrence v. Texas, polygamists added substantive Due Process arguments under the Fourteenth Amendment’s “intimacy privacy” interpretation to their arsenal. This article argues that in order for polygamists to find constitutional protection and recognition, they must shed their arguments founded in religion and rely instead on substantive Due Process. Although First Amendment jurisprudence would subject polygamy bans to a higher level of scrutiny, this heightened protection comes at a cost. The landmark same-sex marriage case, United States v. Windsor, and the opinion’s protected liberty interest of “equal dignity” provides polygamy advocates with substantive grounds to protect their plural marriage practices, as well as pave the way for recognition of “intimate pluralism” and alternative relationship forms like polyamory and group marriage.