Marriage Outlaws: Regulating Polygamy in America

Abstract

Polygamist families in America live as outlaws on the margins of society. While the insular groups living in and around Utah are recognized by mainstream society, Muslim polygamists (including African‐American polygamists) living primarily along the East Coast are much less familiar. Despite the positive social justifications that support polygamous marriage recognition, the practice remains taboo in the eyes of the law. Second and third polygamous wives are left without any legal recognition or protection. Some legal scholars argue that states should recognize and regulate polygamous marriage, specifically by borrowing from business entity models to draft default rules that strive for equal bargaining power and contract‐based, negotiated rights. Any regulatory proposal, however, must both fashion rules that are applicable to an American legal system and attract religious polygamists to regulation by focusing on the religious impetus and social concerns behind polygamous marriage practices.

This article proposes a regulatory solution that will bring these practicing polygamists out into the light and under the protection and mandates of the law. This proposal sets out a regulatory scheme that not only legalizes polygamy, but also develops regulatory rules to ensure consent, prevent unequal bargaining power between the parties, and protect individual rights, all while addressing and respecting the religious beliefs that lead polygamists into these otherwise taboo marital arrangements. These proposed laws attempt to attract polygamists to marriage regulation, as opposed to non‐regulation, by allowing, instead of disparaging, religious influence and familiarity in the process. One goal of this strategy is to change the perception that polygamists may have about the law from that of skepticism and fear to that of allegiance and negotiation. This strategy can serve as a tool to increase the bargaining power and rights of women and legitimize polygamous relationships on a larger societal scale.