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A century and a half ago, Mormons made national headlines by claiming a First Amendment right to practice polygamy, despite criminal laws against it. In four cases from 1879 to 1890, the United States Supreme Court firmly rejected their claim, and threatened to dissolve the Mormon church if they persisted. Part of the Court's argument was historical: the common law has always defined marriage as monogamous, and to change those rules "would be a return to barbarism." Part of the argument was prudential: religious liberty can never become a license to violate general criminal laws, "lest chaos ensue." And part of the argument was sociological: monogamous marriage "is the cornerstone of civilization," and it cannot be moved without upending our whole culture. These old cases are still the law of the land, and most Mormons renounced polygamy after 1890.

The question of religious polygamy is back in the headlines—this time involving a fundamentalist Mormon group on a Texas ranch that has retained the church's traditional polygamist practices. Many of the legal questions raised since Texas authorities raided the ranch in early April are easy. Under-aged and coerced marriages, statutory rape, and child abuse are all serious crimes. If any of those adults on the ranch committed these crimes, or intentionally aided and abetted them, they are going to jail. They will have no claim of religious freedom that will excuse them, and no claim of privacy that will protect them. Dealing with the children, ensuring proper procedures, sorting out the evidence, and the like are all practically messy and emotionally trying questions, but not legally hard. Thursday's decision by a Texas court of appeals ordering the return of the more than 450 children who had been seized from their homes during the raid underscores a further elementary legal principle: decisions about child custody and about criminal liability must be done on an individual basis as much as possible.

The harder legal question is whether criminalizing polygamy is still constitutional. Texas and other every state still have these laws on these books. Can these criminal laws withstand a challenge that they violate an individual's constitutional rights to private liberty, equal protection, and religious liberty? In the 19th century, none of these rights claims was available. Now they are, and they protect every adult's rights to consensual sex, marriage, procreation, contraception, cohabitation, sodomy, and more. May a state prohibit polygamists from these same rights, particularly if they are inspired by authentic religious convictions? What rationales for criminalizing polygamy are so compelling that they can overcome these strong constitutional objections?

Theologians often cite the Bible which says that "two"—not three or four—parties must join in "one flesh" to form a marriage. Others remind us that early biblical polygamists did not fare well. Think of the problems confronted by Abraham with Sarah and Hagar, or by Jacob with Rachel and Leah. Or think of King Solomon with his thousand wives; their children ended up killing each other. This may be a strong foundation for a church or synagogue to prohibit polygamy among its voluntary members, but can arguments straight from the Bible prevail in a pluralistic nation that prohibits the establishment of religion?

Public health experts raise concerns about communicable diseases among children within the extended household, and transmittable sexual diseases within the rotating marital bed. But what about all those other group gatherings—schools, churches, and dorms—that children occupy: must they be closed, too, for fear of contagion? And isn't self-contained polygamous sex much safer than casual sex with multiple partners, which is constitutionally protected?

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May (Web-only) 2008, Vol. 52