polygamy

Someone was asking me recently about polygamy as relates to the gay marriage discussion.
The Mormon polygamy cases are a famous set of disputes wherein the government outlawed polygamy, a religious practice of a few (maybe 7%) Mormon higher-ups. In 1878, the Mormons reached the Supreme Court, with the argument that the polygamy ban restricts their free exercise of religion.
Reynolds v United States is an interesting look at free exercise jurisprudence, actually, in its swing towards the 20th century. A little less than a century later, during the mid 20th, our free exercise cases were in an excepting mood; the key question you see in the cases was: is this activity religion? If so, and if a criminal code outlawed the action- then it was allowed as an exception. You see this in the draft cases- US v. Seeger and Welsh v. US. There, you have men seeking to avoid the draft because of religious objection. In Seeger, the court even goes into Paul Tillich's ground of being ideas in order to find whether the young man's objections to war are "religion."
Now, though, the Court has retreated from the broad reading of the free exercise clause: under current precedent (Employment Division v. Smith) the government makes no constituional violation if the law is generally applicable. More important, there are no more exceptions.
The old polygamy cases were closer to Smith; we've come not quite full circle- but a loop back of some kind indeed. In Reynolds (1878 or so) the Court writes that the "religion" protected under the free exercise clause is opinion rather than overt action stemming from belief.

To permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, an din effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

So. What does all this have to do with gay marriage? Here's Marci Hamilton from FindLaw. I'll comment a bit more- but must run for now.

Of course, we are currently in the midst of a heated public debate over marriage - and in particular, over same-sex marriage. Will the ramifications of constitutional holdings relating to same-sex marriage affect the anti-polygamy laws?

Justice Antonin Scalia certainly thinks so. Recently, and famously, the Supreme Court held in Lawrence v. Texas that adults have a privacy right that extends to private, consensual sex acts - including sodomy, whether homosexual or heterosexual - that ensures that such acts cannot be criminally prosecuted. The Court explicitly stated that its privacy decision did not implicate marriage.

Justice Scalia's dissent, however, warned that the Court, in so holding, was undermining the ability of the state to regulate morals--and marriage. Indeed, he predicted that anti-bigamy laws would soon face constitutional challenges, too. But the extension of Lawrence to anti-polygamy laws is highly unlikely - as Joanna Grossman explained in a previous column on Scalia's "parade of horribles" in his dissent.

Shortly after Lawrence was decided, and also famously, the Massachusetts Supreme Judicial Court - in Goodridge v. Dep't of Public Health -- held that it was a violation of the state constitution's equal protection guarantees to prohibit same-sex marriages. Federal and state equal protection guarantees, however, will not aid the polygamists. Anti-polygamy statutes draw the line at the number of spouses, not their characteristics or status. There is long-settled precedent that limiting the number of spouses does not violate any constitutional guarantee, nor should it.