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  • Lisa Fishbayn Joffe (a1)

The last decade has seen the publication in North America of a plethora of academic books and articles about polygamy. The most important texts on the subject, however, are two court rulings evaluating the constitutionality of criminal prohibitions against the practice of polygamy. Informed by and in dialogue with this academic discourse, these courts arrived at dramatically different conclusions. In Reference re s. 293 of the Criminal Code of Canada, the Supreme Court of British Columbia determined that while Mormon fundamentalist polygamists had religious freedom rights under Section 2 of the Canadian Charter of Rights and Freedoms to practice this aspect of their bona fide religious faith, the government of Canada was justified in limiting this right under Section 1 of the Charter. Prohibiting polygamy was necessary, the court found, in order to prevent the real and substantial risk of harm that it posed to women and children.1 Conversely, in the United States, a trial-level court in Utah issued a summary judgment finding that a criminal prohibition against polygamous religious marriages violated the rights to freedom of religion under the First Amendment, and due process rights guaranteed by the 14th Amendment to the US Constitution. This judgment focused on the state's duty to tolerate minority religious practices, while downplaying the potential risks of polygamy to practitioners and their children.2

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1 Reference Re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (Can.).

2 The latter judgment was recently overturned on appeal on the grounds that the plaintiffs lacked standing. Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016). While Canadian law permits governments to submit a question about the validity of a law to the courts for consideration through the reference procedure, American law requires a case or controversy to establish standing. As there was no pending case against the Browns in Utah, the United States Court of Appeals for the Tenth Circuit ruled that the case should have been declined by the trial court as moot.

3 Lawrence v. Texas, 539 U.S. 558 (2003).

4 Bennion Janet, Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism (Waltham: Brandeis University Press, 2012).

5 Ebershoff David, The 19th Wife (New York: Random House, 2009). Ann Eliza Young's story was told in her memoir, first published in 1875, Wife No. 19. She later sought to divorce Brigham Young and campaigned against Mormon polygamy. Ann Eliza Young, Wife No. 19: The Story of a Life in Bondage, Being a Complete Exposé of Mormonism, and Revealing the Sorrows, Sacrifices and Sufferings of Women in Polygamy (Createspace Independent Publishing Platform, 2014).

6 Udall Brady, The Lonely Polygamist (New York: W. W. Norton, 2010).

7 Shoneyin Lola, The Secret Lives of Baba Segi's Wives (London: Serpent's Tail Books, 2010).

8 A similar literature emerged describing captivity among American Indians.

9 Wall Elissa (with Lisa Pulitzer), published Stolen Innocence: My Story of Growing Up in a Polygamous Sect, Becoming a Teenage Bride, and Breaking Free of Warren Jeffs (New York: Harper Collins, 2008), describing her forced marriage to her cousin at the age of fourteen by the sect's prophet, Warren Jeffs. The consummation of this spiritual marriage was the basis for Jeffs's conviction for being an accessory to statutory rape, later overturned on appeal. State of Utah v. Warren Steed Jeffs, 243 P.3d 1250 (Ut. 2010). Jeffs was later convicted in Texas on two counts of rape of minor girls and sentenced to life in prison. Rebecca Musser testified in this case. Musser Rebecca, The Witness Wore Red: The 19th Wife, Who Brought Polygamous Cult Leaders to Justice (New York: Grand Central Publishing, 2014).

10 Genesis/B'reshit 16:1–7. Etz Hayim Torah and Commentary (New York: Rabbinical Assembly of Conservative Judaism, 2001). Later Abraham marries Keturah. Genesis 25:1. While there is no mention of family strife, her children did not inherit from their father: he gave them gifts during his life and sent them away.

11 Genesis 29:31.

12 Genesis 30:9.

13 Reference Re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (Can.) (hereafter Polygamy Reference).

14 Jennifer Medina, “Unwilling to Grant His Wife a Divorce, He Marries Another,” New York Times, March 21, 2014, Current Israeli criminal law prohibits bigamy, even though the second marriage may be valid under Jewish law. In 1947, Mandate Palestine introduced a bigamy law. Section 181 of the Palestine Criminal Code Ordinance (now the Israeli Penal Code) made it an offense, punishable by up to five years imprisonment, to marry while having another living spouse. The second marriage need not be an invalid one under any legal or religious regime. The law makes clear that is it considered bigamy “whether or not the subsequent marriage is void or voidable.” This provision was added to correct an initial drafting mistake that allowed Jewish men who had not received a heter mea harabbanim to escape punishment, because while Jewish law prohibits most polygamous marriages prospectively, it does not render them invalid. One who enters into a polygamous marriage may be subject to sanction, but the marriage itself is not invalid. While the state acted to suppress polygamy among Jewish immigrants to the nascent state in the 1950s, such cases are rarely prosecuted now, despite polygamy rates in some Bedouin villages that can reach 50 percent. Melanie Lidman, “Polygamy Is Illegal in Israel. So Why Is It Allowed to Flourish among Negev Bedouin?” Times of Israel, February 16, 2016,

15 Reynolds v. United States, 98 U.S. 145, 164 (1879).

16 Brown, 947 F. Supp. 2d at 1183.

17 See, for example, Lughod Lila Abu, Do Muslim Women Need Saving? (Cambridge, MA: Harvard University Press, 2013).

18 Mbatha Likhapha and Joffe Lisa Fishbayn, “Recognition of Polygamous Marriages in the New South Africa,” in Gender, Religion and Family Law, ed. Joffe Lisa Fishbayn and Neil Sylvia (Waltham: Brandeis University Press, 2012), 190212, at 190.

19 The notion that marriage was a sacrament meant that the bond of body and soul thereby created could not be dissolved. Having more than one spouse at one time, what Witte calls “real polygamy,” was prohibited, but so was divorce, remarriage after being widowed, and the marriage of former clergy who had made marriage-like vows to G-d.

20 Pateman Carole, The Sexual Contract (Stanford: Stanford University Press, 1988).

21 See also Reynolds v. United States, 98 U.S. 145, 166 (1879).

22 Hume Quoting David, On Polygamy and Divorces (Indianapolis: Liberty Fund, 1987), 182–87. See also the discussion of the work of Francis Lieber, the German American jurist whose characterization of polygamy as a state of “stationary despotism” is relied on in the Reynolds decision (Witte, 419–23).

23 Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013).

24 Bennion Janet, “The Variable Impact of Mormon Polygamy on Women and Children,” in The Polygamy Question, ed. Bennion Janet and Joffe Lisa Fishbayn (Logan: Utah State University Press, 2015), 6284, at 63.

25 Majeed estimates that there are less than a thousand African American polygynous households in the United States, involving less than 1 percent of all African American Muslims.

26 Maynard v. Hill, 125 U.S. 190, 211 (1888).

27 Spaht Katherine Shaw, “Covenant Marriage Laws: A Model for Compromise,” in Marriage and Divorce in a Multicultural Context: Multi-tiered Marriage and the Boundaries of Civil Law and Religion, ed. Nichols Joel A. (New York: Cambridge University Press, 2012).

28 Loving v. Virginia, 388 U.S. 1 (1967).

29 Zablocki v. Redhail, 434 U.S. 374 (1978).

30 Turner v. Safely, 482 U.S. 78 (1987).

31 Obergefell v. Hodges, 576 U.S. 3, 3 (2015) (emphasis added).

32 Id. at 13–14.

33 State v. Jeffs, 243 P.3d 1250, 1252 (Utah 2010).

34 Wall, Stolen Innocence, 160.

35 See Bennion, “The Variable Impact of Mormon Polygyny on Women and Children”; Martha Bailey, “Should Polygamy be a Crime?” in Bennion and Joffe, The Polygamy Question, 210–27.

36 Polygamy Reference, supra note 13, paragraphs 1188–95 (emphasis added).

37 Indeed, one of their relationships was with a woman who began as their nanny (Sheff, 101).

38 Recognition of Customary Marriages Act 120 of 1998 (S. Afr.).

39 See Mayelane v. Ngwenyama 2013 (4) SA 415 (CC).

40 Recognition of Customary Marriages Act 120 of 1998, § 3(1).

41 Mayelane 2014 (4) SA at para. 38.

42 Id., para. 61.

43 Id., at 7.

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