Written by Alexa Cinque, L’26
The institution of marriage has existed across cultures and centuries.[1] While the reasons, modes, and even execution of marriage has varied quite substantially throughout time, one cannot help but wonder how the modern concept in the U.S. came to be. The history of marriage in America may be far more colorful than one might think. Before America was colonized, many Native tribes in the Americas had vast understandings and practices of marriage, with many practicing what we now recognize as polygamy.[2]
However, with the European colonizers came their understanding and execution of marriage, which had long held that monogamy was the only recognizable form of a relationship.[3] These confines of marriage were based on a Christian understanding of family and social order.[4] Under this European definition, monogamy not only upheld, but benefited society as it, in theory, provided support for children and controlled sexual desires.[5] Even further, during the early settlement of the colonies, there were many actors, both locally and globally, vying for control over these “new” lands, and new settlements needed to seize control over the populations within them to maximize their investments in the colonies.[6] One mode of controlling populations is through implementing gender roles and dictating how gender functions within the societal hierarchy.[7] The pervasive view at this time was that women were the lesser of men.[8]
This is where the institution of marriage in America as we know it today started. By the 18th century, this understanding was further developed under a Christian doctrine to be a man and woman consenting to enter a marriage contract, legally becoming one under the law with the man at the head of the house and each spouse having exclusive sexual access to each other.[9] The normative understanding of marriage in early America has typically been one of heterosexual monogamy.
As a result of the Civil War in the 19th century, America experienced not only a political reconstruction of the South, but a Moral Reconstruction of the entire country.[10] The Union had beaten the Confederacy and slavery was, on paper, outlawed.[11] Many Christian lobbyists saw this as encouragement to ban other aspects of society that they viewed as moral sins, such as obscenity, alcohol, and polygamy.[12] This Moral Reconstruction, as it pertained to marriage, believed that marriage should only be recognized as a monogamous relationship between a man and a woman, as God intended.[13]
The group that received the most targeted attacks as it related to marriage during the Moral Reconstruction was the members of the Church of Latter Day Saints, also known as the Mormon church.[14] The Church of Latter Day Saints was founded in 1830 and, at its conception, the church required polygamy, or the act of marrying multiple people.[15]However, this was limited to a man with multiple wives.[16]
In 1862, Congress passed the Morrill Act, which outlawed polygamy on a federal level; once it was passed, however, it was rarely enforced.[17] After three years of this rare enforcement, members of Congress began advocating for stricter enforcement of the Morrill Act.[18] Their reasoning? Well, one of the Congressmen stated that polygamy encouraged “the lustful and unbridled passions of man.”[19]
Nothing further would develop from the Morrill Act until 1879, when the Supreme Court issued its opinion in Reynolds v United States, where the constitutionality of the Act was brought into question.[20] In Reynolds, Chief Justice Waite held that not even the free exercise clause of the Constitution would permit an exception to the law criminalizing polygamy for those who practice it as a requirement of their religion.[21] His reasoning, however, was not founded in the law in the slightest, but rather echoes much of the same sentiment of the Moral Reconstructionist. Waite stated that“polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people […] and from the earliest history of England polygamy has been treated as an ofence [sic] against society.”[22] Waite further added that allowing a religious exception to this criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”[23]
The Morill Act and the holding in Reynolds did not simply disallow multiple marriage licenses, but also allowed for the criminalization of multiple marriages and relationships.[24] In 1882, Congress passed the Edmunds Bill, which “made polygamy a felony punishable by up to a $500 fine and five years in prison but, unlike its predecessor the Morrill Act, it also made cohabitation, which was much easier to prove, a felony punishable by up to a $300 fine and six months in prison. The Edmunds Bill also allowed jury challenges of anyone who practiced or believed in ‘bigamy, polygamy, or unlawful cohabitation.’ Most important, the Bill denied the right to vote or hold office to any polygamist, declared all territorial offices in Utah vacant, and established a five-person commission to oversee new elections to fill them”.[25]Again, the driving ideology for this legislation was a belief that no one who believed in Christianity and in America’s republic could accept polygamy.[26]
Reynolds has never been overturned in ruling or in reasoning. In fact, it has become the basis of modern-day free exercise constitutional doctrine.[27] This means that polygamy is still illegal and capable of being criminally punished.[28] Even further, adultery is still illegal in seventeen states, three of which classify it as a felony.[29]
But both the times and society’s understanding of marriage has changed. Just as monogamy was a defining characteristic of marriage in early and middle American society, so was heterosexuality.[30] American law has expanded to include same-sex marriage within its protections.[31] In 2015, same-sex marriage between all genders was legalized and protected at a federal level in Obergefell v Hodges.This landmark case exemplified how society’s perceptions over the deeply valued tradition of marriage have grown and evolved as society itself has.[32] In Obergefell, Justice Kennedy acknowledged the importance and sacredness of marriage throughout history and how the understanding and purpose of marriage has changed throughout time.[33] Specifically, Kennedy acknowledged that marriage was viewed as “an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.”[34] Kennedy goes on to explain that this understanding would continue to evolve “[a]s women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.”[35] Kennedy explains that all of these evolutions have strengthened, not weakened, America’s institution of marriage.[36] The court ultimately states that to deny same-sex couples the right to marry would not only burden the liberty of same-sex couples, but violate the core of equality and the right to marry.[37] Justice Kennedy ends Obergefell by stating that same-sex couples’ only “plea is that they do respect [the institution of marriage], respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”[38]
It is not inconceivable that Obergefell could open a path for the legalization of multiple marriages in the U.S. one day, though it is unlikely to happen with the current conservative majority on the Supreme Court. The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health further complicates the possibility of Reynolds being overturned, since it directly threatens Obergefell itself.[39] Doctrinally, however, it would not be impossible especially since the logic in Reynolds seems more similar to that found in Dred Scott v. Sandford, than to any modern Constitutional jurisprudence.[40] Even the logic used in Dobbs, while similar to that in Reynolds, does not result in a blanket criminalization of abortion as Reynolds does with polygamy.[41] Perhaps it is time for the law and the Supreme Court to reconsider multiple marriages. Even if the Court does not wish to permit them, decriminalizing them on a federal level seems appropriate given our modern constitutional stance on marriage equality.
Sandy Millar, Photograph of Wedding Bands, UNSPALSH.COM (Mar. 29, 2019) https://unsplash.com/photos/two-gold-colored-rings-on-paper-YeJWDWeIZho.
[1] ADR Times, Why is Polygamy Illegal?, ADR Times Blog (May 23, 2023), https://adrtimes.com/why-is-polygamy-illegal/.
[2] Id.
[3] Dig A History Podcast, Marriage in America: A Brief History, at 2:05, Youtube(Apr. 6, 2018), https://www.youtube.com/watch?v=bGAtQutKyn4.
[4] Id at 2:41.
[5] Id at 2:10.
[6] Id at 2:58.
[7] Id at 3:01.
[8] Id at 3:05.
[9] Id at 10:10.
[10] Gaines M. Foster, Moral Reconstruction Christian Lobbyists and The Federal Legislation of Morality, 1865-1920 at 3 (The University of North Carolina Press 2002).
[11] Id.
[12] Id.
[13] Dig A History Podcast, supra note 3, at 2:58.
[14] Foster, supra note 10, at 55.
[15] History.com Editors, Mormons, History (Dec. 20, 2017; updated Oct. 7, 2021) https://www.history.com/topics/religion/mormons.
[16] Id.
[17] Foster, supra note 10, at 55.
[18] Id.
[19] Id.
[20] Id at 56.
[21] Reynolds v. United States, 98 U.S. 145, 164 (1878).
[22] Id.
[23] Id. at 167.
[24] Foster, supra note 10, at 57.
[25] Id at 60.
[26] Id at 61.
[27] See, e.g., Emp’t Div., Dep’t of Human Res. v. Smith, 485 U.S. 660, 671 (1988); Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).
[28] See, e.g., D.C. Code § 22–501 (2024); Va. Code. § 20-43.
[29] Katherine Fung, Map Shows 16 States Where It’s Illegal to Cheat on Your Wife, Newsweek (Apr. 5, 2024, 10:02 AM), https://www.newsweek.com/map-shows-16-states-where-its-illegal-cheat-your-wife-1887307.
[30]Dig A History Podcast, supra note 3, at 10:10.
[31] Obergefell v. Hodges, 576 U.S. 644, 681 (2015).
[32]Id.
[33] Id at 657.
[34] Id at 659-60.
[35] Id at 660.
[36] Id at 644.
[37] Id at 671.
[38] Id at 681.
[39] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 245-55, 331-33 (2022) (stating that the right to privacy is not a constitutionally guaranteed right, which is the basis of Obergefell).
[40] Reynolds, supra note 21, at 164; see Scott v. Sandford, 60 U.S. 393 (1857) (reasoning that slaves were not entitled to the same protections as white Americans because they are inferior with no substantive law to cite).
[41] See supra Dobbs, note 39 at 245-55, 331-3; Reynolds, supra note 21 at 164.