Mormons, Polygamy and Hybrid Analysis
William.L.Esser.1 at ND.EDU
Wed Jan 14 08:26:31 PST 1998
Professor McConnell writes:
>Marci Hamilton writes:
>> I think Sandy's question asking me whether I think the Mormons should be
>> praised for altering their views in the wake of Reynolds and Davis is quite
>> fair. For starters, the attempt by Congress to "rid" the country of
>> in the late nineteenth century deserves severe disapprobation. The
>> in Church of Lukumi Babalu Aye makes clear that Congress's actions would
>> been (appropriately) outlawed today.
>I don't think so. Congress outlawed *all* polygamy, making
>the law generally applicable. By contrast, it was
>permissible to kill animals in Florida for almost every
>reason *except* as a religious ritual.
Under the current Smith test, the laws relating to polygamy would probably
not be analyzed under the concept of neutral/generally applicable laws.
Rather, since they deal with the fundamental right to marriage, they would
be combined with the free exercise claim and analyzed under the strict
scrutiny necessary for hybrid claims. See Note, 16 Whittier L. Rev. 211,
255 (1995) (arguing about "polygamy as a 'hybrid' situation"). See also
Note, 5 Seton Hall Const. L. J. 1171 (1995) (arguing that the
constitutional right to marriage could be combined to form a hybrid right
under Smith analysis). While this might not change the final outcome, it
would subject Congressional action to a heightened standard of inquiry.
It is interesting to note that the decision in Smith is often compared to
returning free exercise to the Reynolds test. Yet, under the Smith test
(assuming hybrid analysis), polygamy would still receive greater protection
than it did under Reynolds.
Second Year Law Student
University of Notre Dame
More information about the Religionlaw