News Release: Law

Jun. 2,  2008

Is Criminalizing Polygamy Still Constitutional?

As officials sort out custody of more than 450 children involved in the Texas polygamy compound raid this month, Emory law professor John Witte Jr. is addressing the bigger issue of the future of polygamous marriage -- a growing practice in the United States.

"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," Witte writes in op-ed articles appearing in Christianity Today, Sightings and other news outlets. "The harder legal question is whether criminalizing polygamy is still constitutional."

Witte says he doubts that anyone in the Texas case will be prosecuted for practicing polygamy even though it has always been illegal in Texas and every other state. Why? More than 30,000 polygamous Mormon families live in Western states and thousands of polygamous Muslim families reside along the Eastern seaboard.

"States are trying to avoid the questions of constitutional freedom that inevitably will be raised if those parties are prosecuted for violation of polygamy laws," says Witte in a Q&A published by Andrea Useem in

Witte explains that polygamy has been illegal for more than 150 years in the United States for several reasons: it was prohibited by the Bible and tradition; it raised equal protection questions (should women be able to have multiple husbands if men are allowed to have multiple wives?); it could increase the prevalence of sexually transmitted disease; it would create administrative inefficiencies in the event of death or divorce; and it was deemed morally repugnant.

All but the last reason, moral repugnance, can be fairly easily dismissed in today's culture and courts, says Witte in, and even the moral argument is likely to lose ground. "If the culture changes so that polygamy becomes a more acceptable practice, eventually legislation is going to change, too, just as cultural acceptance of fornication and then sodomy led to legislative change."

Christianity Today Op Ed

Sightings Column Q&A


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