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Mon Dec 23, 2013, 03:21 PM

Should Polygamy be illegal? [View all]

Last edited Mon Dec 23, 2013, 04:11 PM - Edit history (1)

We are not talking about whether any state should recognize plural marriages as legal marriages—none do, and none are going to—but whether personally defined polygamy can properly be criminalized.

(Utah's criminal law against polygamy was recently struck down, hence the question. I have little taste for Mormon fundamentalism but I've always been amazed no federal court had struck it down previously.)

If polygamy should be illegal, how would you define the crime as a matter of law? (Laws must have rigorous, precise definitions of crimes.)

I do not think people forming odd family arrangements should be illegal. (I also do not think anybody should legally recognize self-styled polygamous households as marriages.)

That does not mean it is a good thing or has a good history... one hopes that everyone gets that illegal and "what I don't like" are not supposed to be synonyms.

And if for no other reason, than because it is impossible to define such an offense in a way that doesn't include all sorts of elements that folks would be outraged to see made criminal offenses. (Like the cohabitation of persons whose marriages are not recognized by the state, for starters... something not being a CRIME is not the same as being state sanctioned. We are not talking about whether a state is obliged to recognize such arrangements as a form of marriage, which no state does or is contemplating doing, but whether polygamy should be illegal.)

But since Utah's anti-polygamy laws were only struck down this month, what seemed obvious to me must not have seemed obvious to everyone. I am curious whether anyone is still of a pro-criminalization view, and (much more to the point) how they would describe the offense.

Background: The recent court ruling was essentially that people can live with who they want to live with.

"The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it," Waddoups later writes.

Utah's bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words "marry" and "purports to marry," meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licences.

http://www.sltrib.com/sltrib/news/56894145-78/utah-polygamy-waddoups-ruling.html.csp

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