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6 J.L. & Fam. Stud. 451 (2004)
Are Anti-Polgygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults

handle is hein.journals/jlfst6 and id is 457 raw text is: STUDY NOTE: Are Anti-Polygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults? Samantha Slark* I. INTRODUCTION America's anti-polygamy laws originated in England.' Initially it was considered a crime against the church and tried in the Ecclesiastical Courts.2 However, in the seventeenth century, a statute of King James I made polygamy a capital crime punishable in the civil courts.3 This statute was substantially adopted by the Virginia legislature in 1788 and polygamy and bigamy have been considered an offense against society ever since.4 Today, the majority of statutory law criminalizing polygamy and bigamy emanates from the states.5 In June 2003, the U.S. Supreme Court's decision in Lawrence v. Texas significantly expanded an individual's right to privacy.6 This paper will discuss the effect of the decision upon the continued criminalization of the practice of bigamy and polygamy. First, I will examine current anti-bigamy and anti- polygamy state laws and their origins. Second, I will discuss the U.S. Supreme Court's decision in Reynolds v. United States, which found government prohi- bition of the practice of polygamy constitutional. Third, I will illustrate how the decision in Lawrence substantially enlarged an individual's right to pri- vacy; and fourth I shall examine how the decision in Lawrence affects the abil- ity of state legislatures to continue to prohibit the practice of polygamy. II. OVERVIEW OF THE CURRENT LAW Today the terms bigamy and polygamy are used almost interchangeably.7 However, they define slightly different offenses.8 Bigamy is committed when a person enters a marriage while a former marriage is still in force and the for- mer spouse is still alive.9 Polygamy is a common law offense which occurs when a person enters into a second marriage while the first remains undis- solved.l The definitions would suggest polygamy has a much wider reach than * Junior Staff Member, Journal of Law and Family Studies. Reynolds v. United States, 98 U.S. 145, 165 (1878). 2 Id. 3id. 4id. 5 11 AM. JUR. 2DBigamy § 1 (2003). 6 123 S. Ct. 2472 (2003). 7 11 AM. JUR. 2D Bigamy § 1 (2003). 8 Id. 9 Id. 1I°/d.