Polygamists out of the closet: Statutory prohibitions against polygamy are unconstitutional under the free exercise clause as currently interpreted

The Romer v. Evans colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy cases to the more current debate over gay rights and same-sex marriages was of more than academic interest to the estimated 25,000 to 50,000 Fundamentalist Mormon practitioners of polygamy, as well as the nearly 1,000 Christian polygamists, and Islamic and African practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era. Part I of this Article first discusses at the Romer v. Evans colloquy. Part II briefly explores the history of the mainstream Mormon Church including its adoption and later repudiation of polygamy. Part II also examines non-Mormon polygamy. Part III considers the scriptural basis for polygamy. Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent. Part V explores modern Free Exercise Clause jurisprudence and legislation. Part VI argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim. Second, under Church of the Lukumi Babalu Aye v. City of Hialeah, the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.
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