18 - Scrutinizing Polygamy Under Religious Freedom Restoration Acts

Summary

This chapter considers the potential impact on challenges to state criminal polygamy laws under state Religious Freedom Restoration Acts that impose the exceptionally strict scrutiny described by Burwell v. Hobby Lobby. While replacing the illegitimate, vague, and unsupported interests articulated by the Supreme Court in Reynolds v. United States (1879) with a modern understanding of polygamy’s harms to women, children, men, and society goes a long way toward meeting the government’s burden of showing a compelling governmental interest in not providing an exemption to religious polygamists, the complexity of the factual and expert support showing these harms together with the non-uniform nature of harms challenges the compelling interest test in unprecedented ways.  Nonetheless, the chapter concludes that a state could successfully meet this burden.  It also concludes that refusing to legally recognize polygamous marriages would not keep polygamy in check, thus allowing the government to meets its burden of showing that no less-restrictive alternative to criminalization is available.