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Marriage, Polygamy, and Religious Liberty

Travis Weber & Peter Sprigg



For over a decade, conservatives have made slippery slope arguments that redefining
marriage to include homosexual couples would inevitably open the door for further
redefinitions of marriageincluding the legalization of polygamy.
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ost who advocate legal recognition of same!sex unions have adamantly denied such a lin".
#owever, some on the left have been more honestsuch as the academics and other luminaries
who signed a $%%& manifesto, 'eyond (ame!(ex arriage. )he manifesto endorsed legal
recognition of, among other things, *ommitted, loving households in which there is more than
one con+ugal partner.
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,opular culture has also been at wor" softening the ground for the acceptance of polygamy, as
cable )- networ"s have offered both fictional .Big Love on #'/
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1 and reality .Sister Wives on
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1 series about polygamous families. /n the legal front, 4onathan )urley, a nationally!
"nown professor of constitutional law at 5eorge 6ashington 7niversity, has long advocated for
the legalization of polygamy.
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)urley won a "ey victory in late $%10, when 7tah federal district court 4udge *lar" 6addoups
struc" down a provision of 7tah9s law criminalizing polygamy as unconstitutional in Brown v.
Buhmana case in which )urley represented :ody 'rown and his Sister Wives of reality )-
fame.
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;t this time, no state grants legal recognition to polygamous relationships, and the Brown
opinion did not mandate such recognition. #owever, 7tah law goes further and ma"es it a
criminal offense to publicly represent one9s self as being married to more than one spouse,
even in the absence of multiple marriage licenses. )he court in Brown struc" down this latter
provision.

;lthough this may seem a far cry from re<uiring legal recognition of polygamy, many shared the
same suspicions about Lawrence v. Texas
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specifically, that the $%%0 (upreme *ourt decision
stri"ing down criminal sanctions against homosexual conduct would pave the way for later
decisions upholding a right to same!sex marriage. )hese suspicions have since been
validated, beginning with a decision of the assachusetts (upreme 4udicial *ourt only six
months later.
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>ronically, this further radical redefinition of marriage is now being promoted, in part, using an
argument that is actually near and dear to the heart of religious conservativesnamely, an
appeal to religious liberty. .4udge 6addoups, for example, insisted on referring to the
practice he was legalizing as religious cohabitationeven though the statute ma"es no
reference to religion.1


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)he purpose of this paper is to showE why laws prohibiting polygamy are consistent with
established principles of religious liberty and why permitting or recognizing polygamy would
be harmful to society.


!"# Polygamy may be $ro%ibited under &urrent Su$reme Court $re&edent'

>n !nited States v. "e#nods, C= 7.(. 138 .1=F=1, the 7.(. (upreme *ourt considered and
re+ected a free exercise challenge to a statute outlawing bigamy. )he *ourt noted, GiHt is
impossible to believe that the constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of social life, and it is within the
legitimate scope of the power of every civil government to determine whether polygamy or
monogamy shall be the law of social life under its dominion.
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7pon marriage society may be
said to be built, and out of its fruits spring social relations and social obligations and duties,
with which government is necessarily re<uired to deal. >n fact, according as monogamous or
polygamous marriages are allowed, do we find the principles on which the government of the
people, to a greater or less extent, rests.
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*ongress may prohibit actions which were in
violation of social duties or subversive of good order.
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)he *ourt noted that one would not be
permitted to engage in human sacrifice or burn oneself on the funeral pile of a dead spouse +ust
because it was claimed to be a necessary part of worshipthese things could be properly
prohibited as necessary for an orderly society.
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2i"ewise, polygamy could be so prohibited, for
it leads to the patriarchal principle, and which, when applied to large communities, fetters the
people in stationary despotism, while that principle cannot long exist in connection with
monogamy.
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*onsistent with the *ourt9s view regarding the +ustifications for regulating polygamy in the face
of a religious liberty challenge, the $ew %or& Times, at the time "e#nods was decided, called
plural marriage degrading, and noted it went against the conscience.
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!(# )%e re&ent lo*er &ourt de&ision t%at a Uta% la* im$osing &riminal san&tions +or
$olygamous ,&o%abitation- s%ould be in.alidated does not $re.ent t%e $ro%ibition o+
$olygamy'

)he 7tah statute prohibiting polygamy that was recently called into <uestion in Brown v.
Buhman readsE ; person is guilty of bigamy when, "nowing he has a husband or wife or
"nowing the other person has a husband or wife, the person purports to marry another person
or cohabits with another person.
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)he *ourt struc" down the cohabits with another person
provision of the statute because of its targeted effect on specifically religious cohabitation as
opposed to cohabitation for other reasons, but upheld the purports to marry provision by
narrowly defining it to only include acts purporting to create a legal marriagesuch as
attempting to obtain another marriage license from the state while already married.
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)he court
concluded that this part of the statute survives in prohibiting bigamy because there is no
fundamental right to polygamy.
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7tah is appealing the Brown decision, which contradicts recent 7tah state court rulings on this
issue.
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Aven if Brown stands, laws prohibiting legal recognition of polygamy remain intact and
perfectly consistent with Free Axercise +urisprudence under "e#nods.
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;s the court pointed out,
the 'rowns had not <uestioned the right of the state to limit its recognition of marriage and to
prosecute those citizens who secure multiple marriage licenses from the state.
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!/# Polygamy bans s%ould sur.i.e RFRA0le.el s&rutiny be&ause o+ t%e many &om$elling
go.ernment interests in $ro%ibiting $olygamy'

)he interest of government in prohibiting polygamy is consistent with strong religious liberty
laws and policies. )he @eligious Freedom @estoration ;ct .@F@;1 contains robust protections
for religious libertyE GgHovernment shall not substantially burden a person9s exercise of religion
even if the burden results from a rule of general applicability, and may substantially burden a
person9s exercise of religion only if it demonstrates that application of the burden to the person
.11 is in furtherance of a compelling governmental interestI and .$1 is the least restrictive means
of furthering that compelling governmental interest.
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5enerally applicable and neutral laws
outlawing polygamy may substantially burden religious exercise, but would be permitted
under @F@; as long as they further a compelling government interest, and are the least
restrictive means of furthering that interest. ; number of compelling government interests are
outlined below and a uniform polygamy ban is the least restrictive way to achieve them. Aven
under the legal standard most protective of free exercise embodied in @F@;, therefore,
polygamy may be outlawed and prohibited.

>f one wanting to engage in polygamy brought a @F@; claim to challenge a polygamy
prohibition, such a general prohibition should stand even if it substantially burdens religious
exercise. ; general prohibition of polygamy furthers compelling government interests for a
variety of reasons including .but not limited to1 the followingE

A' Pro%ibiting $olygamy $re.ents %arm to *omen'

i. ;nthropologists have identified problems in modern polygamous
households, such as the fact that young girls are often tric"ed or
coerced into marrying older wealthy men and that women and
children of modern polygamy are often poorly educated,
impoverished, and chronically dependent on welfare.
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ii. ;s polygamy increases, the lives of women and children worsen.
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iii. 6omen are married younger, maternal mortality increases, and life
expectancy decreases.
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iv. 6omen give birth more between the ages of 18!1C, and sex traffic"ing,
female genital mutilation, and domestic violence all increase.
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v. )he rate at which children complete formal education decreases.
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vi. Family law will end up having ine<uitable conse<uences for women
in polygamous marriages, as opposed to monogamous marriages.
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vii. 6omen in polygamous relationships have higher rates of #>-
infection than men.
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viii. 6omen in polygamous relationships have a shorter life expectancy
than women in monogamous relationships.
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ix. ,rohibiting polygamy advances health and welfare by preventing
the spread of sexually transmitted disease among multiple wives.
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x. ,rohibiting polygamy prevents fraud and failure to pay child support
that results in children and single mothers being cared for by the
state.
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)herefore a polygamy ban advances health and welfare by
protecting the financial resources of the social welfare system.
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1' Pro%ibiting $olygamy $re.ents disease, bodily %arm, .iolen&e, in&est,
se2ual assault, and abuse3*%i&% o&&ur *it%in $olygamous &ommunities'
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C' Polygamist &ultures are more li4ely to $rodu&e .iolent males'

i. ,olygamist cultures need to create and sustain an underclass of
unmarried and undereducated men, since in order to sustain a system
where a few men possess all the women, roughly half of boys must
leave the community before adulthood.
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ii. (uch societies also spend more money on weapons and display
fewer social and political freedoms than do monogamous ones.
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iii. oreover, GwHhen small numbers of men control large numbers of
women, the remaining men are li"ely to be willing to ta"e greater
ris"s and engage in more violence, possibly including terrorism, in
order to increase their own wealth and status in hopes of gaining
access to women.
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5' Monogamy en&ourages ,stable +amily stru&tures'-
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i. onogamy ensures optimal child rearingwhile a polygamous
father may "now who his children are, his children have to wor" hard
to get his attention, affection, and resources which are dissipated over
multiple wives and children.
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ii. onogamous marriages ensure that both fathers and mothers are
certain that a baby born to them is theirs.
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iii. onogamous marriages ensure that husband and wife will together
care for, nurture, and educate their children until they mature.
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iv. onogamous marriages deter both spouses from destructive sexual
behavior outside the home.
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a. ; polygamous man, not schooled by monogamous habits,
will always be tempted to add another attractive woman to his
harem.
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b. ; co!wife, once pushed aside by another, will be sorely
tempted to test her neighbor9s or servant9s bed, unless
threatened with grave retribution.
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c. G(Hingle men, with fewer chances to marry, will resort more
readily to prostitution, seduction, and other destructive sexual
behavior.
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)he above concerns would +ustify a ban on polygamy, and these ample and compelling
government interests are advanced by the least restrictive means of a generally
applicable ban on all polygamy.

oreover, courts have already held there is a compelling state interest in outlawing
bigamy.
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;s the 7.(. *ourt of ;ppeals for the 1%th *ircuit stated, beyond the
declaration of policy and public interest implicit in the prohibition of polygamy under
criminal sanction, 7tah has established a vast and convoluted networ" of other laws
clearly establishing its compelling state interest in and commitment to a system of
domestic relations based exclusively upon the practice of monogamy as opposed to
plural marriage.
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oreover, GmHonogamy is inextricably woven into the fabric of our
society. >t is the bedroc" upon which our culture is built.
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2oo"ing to 'aboc&i v.
"edhai( 303 7.(. 0F3, 0=3 .1CF=1, the court considered marriage to be the foundation of
family and society, or a bilateral loyalty.
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)herefore, GiHn light of these fundamental
values, the (tate is +ustified, by a compelling interest, in upholding and enforcing its ban
on plural marriage to protect the monogamous marriage relationship.
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)o conclude, religious freedom is protected by the First ;mendment to the *onstitution,
@F@;, and other laws. #owever, religious freedom rights should not protect the
practice of polygamy, which, as outlined above, has such widespread and destructive
conse<uences that it threatens the very foundation of the governmental order which
allows our constitutional freedoms to exist. For this reason, and the many compelling
government interests outlined above, the government should be able to prohibit
polygamyeven in the face of religious liberty laws li"e @F@; which apply strict
scrutiny to any government regulation substantially burdening religious exercise.

Travis Weber( ).*.( LL.+.( is the *irector of the ,enter for "eigious Libert# and Peter Sprigg is a Senior
-eow for Poic# Studies at the -ami# "esearch ,ounci in Washington( *.,.

BotesE

1
(en. @ic" (antorum .@!,;1 created a firestorm of controversy when he made such as association in a $%%0 interview.
(ee, The .ssociated Press, Axcerpt from (antorum interview, !S. Toda#, ;pril $0, $%%0, accessed on ;pril 1&,
$%13,httpEJJusatoday0%.usatoday.comJnewsJwashingtonJ$%%0!%3!$0!santorum!excerptKx.htm.
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'eyond (ame!(ex arriageE ; Bew (trategic -ision for ;ll /ur Families and @elationships, beyondmarriage.org,
4uly $&, $%%&, accessed on ;pril 1&, $%13, httpEJJwww.beyondmarriage.orgJfullKstatement.html.
0
Big Love, >?b, accessed on ;pril 0, $%13, httpEJJwww.imdb.comJtitleJtt%3$1%0%J.
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Sister Wives, )2*, accessed on ;pril 0, $%13, httpEJJwww.tlc.comJtv!showsJsister!wives.
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4onathan )urley, ,olygamy laws expose our own hypocrisy, !S. Toda#, /ctober 0, $%%3, accessed on ;pril 1&,
$%13,httpEJJusatoday0%.usatoday.comJnewsJopinionJcolumnistJ$%%3!1%!%0!turleyKx.htm.
&
Brown v. Buhman( Bo. $E11!cv!%&8$ .?. 7tah ?ec. 10, $%101.
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Lawrence v. Texas, 80C 7.(. 88= .$%%01.
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(ee /oodridge v. *ep0t of Pubic 1eath, FC= B.A.$d C31 .ass. $%%01.
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!nited States v. "e#nods, C= 7.(. 138, 1&8!&& .1=F=1.
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; 'low at ,olygamy, $ew %or& Times, 4anuary =, 1=FC, accessed on ;pril 1&, $%13,
httpEJJ<uery.nytimes.comJmemJarchive!freeJpdfLresMF1%C1%FF0C8;10F'C0*;;C1F=;?=8F3?=F=3FC.
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7tah *ode ;nn. N F&!F!1%1 .1CCC1.
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Brown v. Buhman, Bo. $E11!cv!%&8$, at $0 .?. 7tah ?ec. 10, $%101,
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See( e.g., State v. 1om, 10F ,.0d F$& .7tah $%%&1I State v. /reen, CC ,.0d =$% .7tah $%%31.
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See "e#nods, C= 7.(. at 1&8!&&. 7tah state courts that have considered Free Axercise challenges to 7tah9s bigamy
laws determined that the laws pass constitutional muster. See State v. 1om, 10F ,.0d F$& .7tah $%%&1I State v. /reen, CC
,.0d =$% .7tah $%%31. #owever, the courts in these cases were not wor"ing under @F@; or any such version of @F@;
in 7tah law. )hey were relying on federal free exercise +urisprudence under 2mpo#ment *ivision v. Smith, 3C3 7.(.
=F$ .1CC%1, and ,hurch of the Lu&umi Babau .#e v. ,it# of 1iaeah, 8%= 7.(. 8$% .1CC01, which permitted neutral and
generally applicable laws that did not facially discriminate religion or target religious practices specifically to escape
strict scrutiny. 7nder @F@; such laws still have to pass strict scrutiny, so it is more li"ely that 7tah9s laws could fail
to pass muster under higher @F@;!level protections.
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Brown, Bo. $E11!cv!%&8$, at &=.
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@eligious Freedom @estoration ;ct, 3$ 7.(.*. N $%%%bb!1.
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4ohn 6itte 4r., 6hy onogamy is Batural, /n Faith, /ctober $, $%1$, accessed on ;pril 1&, $%13,
httpEJJwww.faithstreet.comJonfaithJ$%1$J1%J%$Jwhy!monogamy!is!naturalJ1$1%8.
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Axpert 6itness ?r. @ose c?ermott, '.*. ,olygamy @eport, ?ecember 1&, $%1%, accessed on ;pril 1&, $%13,
httpEJJpolygamyreport.blogspot.comJ$%1%J1$Jexpert!witnes!dr!rose!m!dermott.html.
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@ose c?ermott, ,olygamyE ore *ommon )han you )hin", The Wa Street )ourna, ;pril 1, $%11, accessed on
;pril 1&, $%13, httpEJJonline.ws+.comJnewsJarticlesJ('1%%%13$3%8$F3=F%0=%&0%38F&$038818C&0$$&C%LmgMreno&3!
ws+OurlMhttpP0;P$FP$Fonline.ws+.comP$FarticleP$F('1%%%13$3%8$F3=F%0=%&0%38F&$038818C&0$$&C%.html.
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:eith 4aasma, Bote, The "eigious -reedom "estoration .ct3 "esponding to (mith( "econsidering @eynolds, 1& 6hittier
2. @ev. $11, $C$ .1CC81.
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@ichard ;. -az<uez, Bote, The Practice of Po#gam#3 Legitimate -ree 2xercise of "eigion or Legitimate Pubic +enace, 8
B.Q.7. 4. 2egis. O ,ub. ,ol9y $$8, $31!38 .$%%11.
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c?ermott, ,olygamyE ore *ommon )han you )hin".
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:eith 4aasma, Bote, The "eigious -reedom "estoration .ct3 "esponding to (mith( "econsidering @eynolds, 1& 6hittier
2. @ev. $11, $C$ .1CC81.
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6itte, 6hy onogamy is Batural.
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Potter v. +urra# ,it#, F&% F.$d 1%&8 .1%th *ir. 1C=81. #owever, li"e the 7tah state courts mentioned above, Potter
was not wor"ing under @F@;, and loo"ed to the controlling nature of the (upreme *ourt9s decision in "e#nods. )he
1%th *ircuit evaded the tougher standard of review under %oder by distinguishing "e#nods as dealing with health,
safety, and general welfare matters which may be more freely regulated by the government even when touching
upon matters of free exercise. )hough this reasoning could be used today when facing a free exercise challenge to a
polygamy prohibition, it may be more difficult for a court to avoid applying a statute .li"e a @F@;1 as opposed to
distinguishing a case. ;dvocates of polygamy may argue that when combined with the numerous rulings deciding in
favor of a right to same sex marriage .which minimized the state9s interest in regulating marriage1, such a free
exercise challenge today could be ta"en more seriously. #owever, if health, safety, and morals could be lin"ed to
other harms related to polygamy specifically, as opposed to sub+ects such as optimal child rearing which have
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already been raised in the recent marriage rulings, laws prohibiting polygamy may stand a better chance of being
sustained.
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Potter v. +urra# ,it#, F&% F.$d 1%&8, 1%F% .1%th *ir. 1C=81. @uling under a rational basis standard, other courts have
recognized the government has an interest in outlawing polygamy as a recognized form of marriage because it is a
building bloc" of society. State v. /reen, CC ,.0d =$%, =$C .7tah $%%31 .citing 'aboc&i v. "edhai, 303 7.(. 0F3, 0CC .1CF=1
.,owell, 4., concurring11. )he government also has an interest in prohibiting bigamy in order to prevent the
perpetration of marriage fraud and the misuse of government benefits associated with marital status. 4d. at =0%.
Finally, 7tahRs bigamy statute serves the (tateRs interest in protecting vulnerable individuals from exploitation and
abuse. )he practice of polygamy, in particular, often coincides with crimes targeting women and children. *rimes not
unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child
support. 4d. )he closed nature of many polygamous communities raises the li"elihood that these harms will go
undetected. 4d. )he court even considered the possibility that all these interests could be compelling state interests. 4d.
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Potter, F&% F.$d at 1%F%.
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