Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, October 6, 2008

Polygamy Scholarship

Polygamy is a "hot topic" in family law scholarship (as well as in the popular media).  A few great looking articles with their SSRN abstracts:

"'They Ain't Whites; They're Mormons': An Illustrated History of Polygamy as Race Treason"
MARTHA M. ERTMAN, University of Maryland Law School

 Abstract:  Legal doctrines banning polygamy grew out of nineteenth century Americans' view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine's famous observation that the move in progressive societies is "from status to contract." It frames antipolygamists' contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was "natural" for people of color but so "unnatural" for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said's concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority.

"Polygamists Out of the Closet: Statutory Prohibitions Against Polygamy are Unconstitutional Under the Free Exercise Clause as Currently Interpreted"
KEITH SEALING, University of Louisville Brandeis School of Law
Abstract:  The Romer v. Evans colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy cases to the more current debate over gay rights and same-sex marriages was of more than academic interest to the estimated 25,000 to 50,000 Fundamentalist Mormon practitioners of polygamy, as well as the nearly 1,000 Christian polygamists, and Islamic and African practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era. Part I of this Article first discusses at the Romer v. Evans colloquy. Part II briefly explores the history of the mainstream Mormon Church including its adoption and later repudiation of polygamy. Part II also examines non-Mormon polygamy. Part III considers the scriptural basis for polygamy. Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent. Part V explores modern Free Exercise Clause jurisprudence and legislation. Part VI argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim. Second, under Church of the Lukumi Babalu Aye v. City of Hialeah, the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.

'Big Love?' The Recognition of Customary Marriages in South Africa
PENELOPE ANDREWS, Valparaiso University School of Law Pennyandrews07_2

Abstract: This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.


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