It's Big a Me

[Douglas Laycock]

  The 19th-century federal law, and the current Utah law, forbid
being married to one woman while cohabiting with another.  I don't
know about other states.

  The point of this formulation was to reach cases with one legal
marriage and one or more additional marriage-like relationships not
registered with the state.  But it must inevitably introduce
discretion in enforcement that spares the prosecutor having to prove
what he really considers to be the offense.  If a guy leaves his
wife, doesn't bother to get divorced, and shacks up with another
woman, I'm guessing that no Utah prosecutor thinks that is bigamy. 
Yet it is covered by the letter of the Utah statute. 

  If the additional element that triggers prosecution is religious
motivation, that is clearly unconstitutional.  If the additional
element that triggers prosecution is a religious ceremony for the
second and subsequent relationships, that also seems
unconstitutional, although there is that 11th Circuit case upholding
the discharge of an Assistant AG for a religious ceremony in the
context of her lesbian relationship.  If the additional element that
triggers prosecution is calling it a marriage, or some sense of
permanence of commitment, those are de facto elements of the offense
decided only by the prosecutor, and never submitted to the jury.  And
what if it turns out that in many cases, the principal evidence of
calling it a marriage is the religious ceremony?

  Quoting Will Linden <wlinden at panix.com>:

>    Not exactly a religion question, but I thought people hear might 
> know some answers.
>
> A recent GetReligion post dealt with the  Times story about 
> underground polygamy among immigrants. In  reaction to the line
about
> criminal penalties for bigamy, a commenter posted::
>
> "So, what actually constitutes the offense, since we've legalized
adultery?
>
> * Publicly declaring multiple marriage?
>
> * Trying to get multiple concurrent marriage licenses?"
>
>    Can anyone illuminate this? How often is bigamy prosecuted? Under

> what circumstances? In which states?
>
>    (And yes, I know that failure to ENFORCE laws against adultery 
> which legislators dare not be seen voting to repeal does not mean 
> that it has been "legalized" in probably most states. (Connecticut 
> being an exception, and being reported for just that reason.)
>
>     My impression is that "bigamy" charges are usually linked to 
> someone concealing his marital status from the other party.
>
>     Will, one of whose uncles was "a bigamist... but ONLY in New
York
> State, dear,", and could never get a coherent explanation of how
this
> was compatible with the Full Faith and Credit clause.
>
>
>
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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