1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2.7.  Polygamy

From the male perspective, a key difference between monogamy and polygamy is the number and rate at which legitimate progeny can be produced.  Consider a male whose goal is to produce ten children over his reproductive career.  He can accomplish this by adopting monogamy, mating with one female who produces one child a year for ten years.  Alternatively, he can become polygamous, taking two wives at the same time, who if they produce at the same rate as his monogamous wife, will beget him the same number of children in half the time.  Reproductive lifespans being equal, the polygamous man can achieve a reproductive output many-fold higher than the monogamous man, depending on how many females he takes on as a wife.  Furthermore, having babies from multiple women is advantageous, since it creates genetically diverse progeny, an important asset since diversity is the substrate of natural selection.  

A study of polygamous marriages in a 19th century Mormon population in Utah confirmed that demand for a larger number of progeny than possible with monogamy was one reason that men took additional wives (Anderson and Emigh, Am. J. Soc., 94:832-855, 1989).  According to that study, although polygamy increased the offspring number per individual husband, the wives showed reduced fertility.  Apparently, this was because the pressure for more children was lessoned as the accumulated stock of joint progeny grew.  Consequently, later wives tended to show decreased fertility (as measured by child number).

Polygamy is not without its costs.  Availability of resources is an important consideration when choosing a mating system.  If a male takes the polygamous route, in any given year, he will have twice the number of children to support.  Instead of having only five babies at the end of five years, he can have ten mouths to feed.  When resources are not limiting, adopting the polygamy strategy may be a good one because it permits him to double his reproductive success.  Under conditions where food and economic resources are scarce, polygamy may be more difficult to perform since he may be unable to provide adequate support for multiple broods.  In these circumstances of restricted supplies, monogamy may be the better choice for the male.

These concerns appear to drive mating strategies in the animal kingdom.  In weaverbirds, it has been found that where food is hard to find, species are monogamous, presumably to concentrate their efforts on raising their joint offspring.  When food is abundant, and a female is capable of providing for the progeny on her own, without the help of the male, polygamy is the logical choice for the father weaverbird, and not surprisingly, is the social behavior adopted by him.  Krebs and Davies, An Introduction to Behavioural Ecology, Page 26.

The equation may not be that simple.  Even if food and money are restricted, as long as more than half the babies survive, it would still pay for him to be polygamous.  In political systems that have economic and health support structures for financially needy families, such as the welfare system in the United States, polygamous fathers can take advantage by free-riding their progeny on it, increasing survivability on the expense account of the nation.  [DISCUSS UTAH CASE]. 

The female has a different view of it.  If she relies on the male as a provider, then any extra-marital activity he engages in potentially diminishes the resources available to her family.  A wife whose husband has two families can expect only half the amount of money than if she were his sole reproductive partner.  For this reason, males and females inevitably conflict when it comes to matters of marriage, fidelity, and raising kids.

In birds, the predominant strategy is monogamy – one male pairing with a single female bird.  However, there is evidence that male birds practice monogamy only because of the lack of opportunity to get extra mates.  When competing males are removed from neighboring territories, freeing up unpaired females, a seemingly happy monogamous bird will become an infidel, deserting his first mate for a second.  Krebs and Davies, An Introduction to Behavioural Ecology, Page 226.

For Americans, monogamy is the rule of law.  The female gets her way, and doesn’t have to share her husband, or his wealth, with any other family.  The male devotes all his energy to one family, and there is no resource splitting.  This also conserves the value of sex as bargaining tool for the female since the male has no other legitimate sources to get it from.

At first glance, the monogamy rule looks bad for the male since it restricts his reproductive output.  With only one legitimate partner, the reproductive playing field is leveled, and he is prevented from maximizing his number of offspring by taking on multiple wives. 

But, for the average male, polygamy also has a downside.  When polygamy is allowed, competition for females is sharply increased.  As more men take on multiple wives, the pool of available females shrinks, resulting in a rise in the number of single, unmarried men.  Not good for society, and not good for the reproductive interests of the male population as a whole.  Take a group of ten men and ten women.  With the monogamy rule, every male has an opportunity to procreate. But imagine what happens when polygamy is practiced.  If two men take on two wives each, this leaves only six females for the remaining eight males.  Two are left out.  When three men practice bigamy, there are now seven unmarried men who must compete for the four women who are left.  Three, or 30%, of the population will ultimately be denied marital success.  Assuming a sex ratio between females and males of about 1:1, allowing polygamous marriages results in increased competition between males for females, and generates a leftover population of unwedded men who have the potential to become unruly and disruptive.  This may explain why polygamy is prohibited is so many cultures. 

The monogamy rule benefits the individual interests of the female, and the group interests of the male, since it prohibits any one male from getting any more than his fair share of one lawful female.  Any strategy that offsets this disadvantage we might expect to be adopted by more successful males.  Paternal genes that promote the birth of multiple progeny from the same pregnancy are one solution for a dad.  Dizygotic twins – where two different sperm independently fertilize two eggs – have been reported to run in certain families, suggesting a genetic component [REF].  Cheating on the spouse is another approach.  Studies of birds have revealed that, when a male can’t get another mate, he may sneak extra-marital copulations as a way of increasing his reproductive productivity.  Krebs and Davies, An Introduction to Behavioural Ecology, Page 226-227. 

Just how well the adultery tactic works depends on the expense of out-of-wedlock kids.  At common law, illegitimate children generally had no right of paternal support by a natural, but unwed father – a winning combination for creating children outside a lawful marriage.  The man got his extra child or two without any financial obligation.  But since the early 1900’s, most states have required parents to provide support and maintenance of his or her biological child.  Although it had been argued that this support duty should be limited to legitimate children, this distinction was abolished in Gomez v. Perez, 409 U.S. 535 (1973) which established that once a state gives a child the right to support by a biological father, benefits can not be denied to that child simply because the father was not married to the mother. Because of the costs involved, paternal support statutes can be viewed as a disincentive for the adulterous offspring-seeking man.  From an economic perspective, their effectiveness in deterring polygamous behavior would depend on the expense of an out-of-wedlock child versus a legitimate child.  Assuming no social stigma, monogamy plus arrangements where a man has one legal wife plus one extramarital partner might be preferred over marital polygamy when paternal support is cheaper for an illegitimate child than one born in a marriage.  This could be the case where support is limited to economic resources, and it is cheaper to pay out, rather than expend parenting energy and other resources on establishing a relationship with the child.

           

Reynolds v. United States (1878)

Supreme Court of the United States

98 U.S. 145; 25 L. Ed. 244; 1878 U.S. LEXIS 1374; 8 Otto 145

OCTOBER, 1878, Term

PRIOR HISTORY:  ERROR to the Supreme Court of the Territory of Utah.

This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows: --

“Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years.”

OPINION:

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be to divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church."

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he "was married as charged -- if he was married -- in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty.'" This request was refused, and the court did charge "that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right, -- under an inspiration, if you please, that it was right, -- deliberately married a second time, having a first wife living, the want of consciousness of evil intent -- the want of understanding on his part that he was committing a crime -- did not excuse him; but the law inexorably in such case implies the criminal intent."

Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia.In 1784, the House of Delegates of that State having under consideration "a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested "to signify their opinion respecting the adoption of such a bill at the next session of assembly."

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298.In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinetion between what properly belongs to the church and what to the State.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States." Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three -- New Hampshire, New York, and Virginia -- included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his god; that he owes account to noneother for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

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. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an ofence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estate of Deceased persons.

By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death.As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of  the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is qually striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?  The permit this 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.

A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.

In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents of a sick child, who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter, while it was said the contrary would have been the result if the child had actually been starved to death by the parents, under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.

6. As to that part of the charge which directed the attention of the jury to the consequences of polygamy.

The passage complained of is as follows: "I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children, -- innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land."

While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted: and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial.