The history of polygamy is a rich and varied one. Dating back to 3000 BCE and continuing today, spanning the world from Asia to Europe, from Africa and the Middle East to North America. The ancient patriarchs of the Hebrews such as Abraham, Esau, and Jacob were the heads of polygamous households. Similarly, under Shari’ah Law in Islam, a man is allowed to marry up to four women so long as he treats them in an egalitarian manner. Even the father of early modern Protestantism, Martin Luther, admitted that Christianity and polygamy were not mutually exclusive ideals, noting that the practice did not contradict anything in the Holy Bible (Swisher 3-4). As a result, it is fair to say that there is a globally attested and historical tradition of polygamy and that it has been defended over time as a viable form of marriage.
Over time, however, a social and cultural resistance has formed against polygamy, especially from the Catholic Church. The Council of Trent in 1563 CE witnessed the Catholic Church’s defense of marriage by prohibiting polygamy. Then in 1604 CE, English courts began punishing those convicted of bigamy or polygamy, establishing a legal viewpoint that would find its way and enshrine itself into the American judicial system (Swisher 4).
Yet even this resistance did not stop the spread of polygamy to the United States. It was during the 19th century that polygamy developed a locale of its own in the United States. Starting in the 1830s, Joseph Smith, the founder of the Church of Jesus Christ of Latter-Day Saints (CJC-LDS) in Utah strongly encouraged his followers to revive the ancient practice. Furthering this goal in 1852, Brigham Young, Smith’s spiritual successor, declared polygamy an article of faith for the CJC-LDS (Swisher 4).
Despite this official church declaration, few early Mormons practiced polygamy. This was, perhaps, due to the fact that it was viewed as “barbaric” and a “sinful indulgence in sex” by greater society (Swisher 3). But each subsequent year saw an increase in the number of bigamous and polygamous marriages in Utah, something which put the CJC-LDS and the American government increasingly at odds with one another (Swisher 3-4). In 1862, during the midst of the American Civil War, President Lincoln signed the Morrill Anti-Bigamy Act (MABA) which stated that:
“[E]very person having a husband of wife living, who shall marry any other person, whether married or single, in a Territory…over which the United States have exclusive jurisdiction…[is] guilty of bigamy and…shall be punished by fine not exceeding five hundred dollars, and by imprisonment not exceeding five years” (Swisher 4).
Polygamy was thus subtly outlawed in the United States, hidden behind the distractions of a domestic war. Yet no prosecutions for bigamy or polygamy occurred for the first decade that the MABA was in existence (Swisher 5). The first Supreme Court case to raise the issue of polygamy in the United States, and one that is still used as controlling today, was Reynold v. United States.
George Reynolds was an English immigrant to the United States. He married his first wife, Mary Ann Tuddenham, in Utah in 1865. In 1874, he then married a second wife, Amelia Jane Schofield which led to his indictment. Appealing to the Utah territory’s supreme court, Reynolds argued that he should not be punished and that the law should be struck down for violating his First Amendment right to the freedom of religious expression. The Utah territory’s supreme court did not find this reasoning persuasive and ruled against Reynolds; he sought the authority of the Supreme Court to vindicate him.
The justices did not vindicate Reynolds though. The majority, in denying Reynold’s First Amendment argument for polygamy, drew a crucial distinction between religious belief, on one hand, and religious action, on the other. To support their position and approach to resolving the case, the majority quoted one of Thomas Jefferson’s many personal correspondences with a government official. In that particular correspondence, Jefferson observed that while he felt that the beliefs of American citizens were to remain undisturbed by governmental intrusions, practices or actions based on or derived from those beliefs were wholly within the jurisdiction of Congress to authorize or deny (Swisher 10). On the Court’s view of Reynold’s religious freedom argument Waite asserts:
“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?” (98 U.S. 145 at 164).
The following year Congress passed the Edmunds Anti-Bigamy Act (EABA) which made it a misdemeanor in the United States for a man to cohabit with more than one woman. Instead of proving the existence of a polygamous marriage, an endeavor that had often ended unsuccessfully, the government only had to prove the existence of cohabitation, a much easier criterion to satisfy. During the decade following EABA’s passage, more than 1,300 men were imprisoned for its violation (Swisher 5).
In contemporary times, while the presence of polygamy has not been extensive, it has been steadily growing in two key ways. In the first, public approve for polygamous practices has increased from 7% in 2001 to 15% in 2013, according to a recent poll conducted by Gallup (Allen). This trend seems likely to increase given the popularity of shows such as Sister Wives and Big Love that depict the similarities between monogamous and polygamous families.
In the second way, there are not only certain denominations of Mormonism who practice polygamy, but also there is an influx of immigrants coming to the United States from Africa (Burkina Faso, Gabon, Ghana, Nigeria, and Kenya), Asia (Indonesia, Malaysia, the Philippines, and Singapore), and the Middle East (Afghanistan, Iran, and Pakistan) that has brought with it the polygamous traditions of numerous home countries (Salt Lake Tribune).
The prevalence of polygamous practices and culture is steadily increasing in the United States. And as a result, the possible ruling of the Supreme Court on a case that is relevantly similar to Brown v. Buhman could affect the daily lives of hundreds of thousands of polygamist families in the United States and even around the world.