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In December of 2013, a federal Judge in Utah struck down a portion of the state’s polygamy prohibition, and basically decriminalized poly households.

I know I am, like, four months late on this, but I just saw a very long online discussion where pretty much everyone was confused as to what this meant, so I thought I would try and help as someone who has worked in a variety of different roles around issues of marriage equality and other modern rights issues.

The disclaimer is that, while I have a lot of experience with these issues, I am not a lawyer and nothing here should be taken as legal advice.

(HEY! By the way, if you want a really awesome book about all sorts of non-monogamous relationships, check out my BOOKSHELF PAGE for a book called “Opening Up” by Tristan Taormino. It’s really good.)

Image from lanesoflove.files.wordpress.com

Words, Words, Words

First of all, some important terminology. We’ll start with the poly’s

Polyandry: A cultural system where a woman may have multiple husbands, but men do not have multiple wives.

Polygyny: The opposite of the above. Men have multiple wives, but women have only one husband.

Polygamy: The umbrella term that covers both of the above, as well as models where both men and women may have multiple spouses. The reason this term is the most common is because is covers pretty much everything.

The three above terms have been in use for a long time with established definitions. They are used by scientists who study both modern and ancient human cultures around the world. But the distinction, for the purpose of this discussion, is really not important.

The rest of the more modern Poly- terms, however, are defined largely by the people who participate in them and there is no widely accepted standard. These include polyamory, polyfidelity, etc. But there is no reason to acknowledge these terms when talking about the law, because the law isn’t concerned with how you define your relationship, only about who they recognize as “married” for legal purposes.

The thing is, almost none of these terms appear in law, so discussion of legalizing any of them is not technically accurate.

Most states, prohibit either “polygamy” or “bigamy” so those are the words I am going to use from here out.

THE WEIRD IMPORTANCE OF A ROOF

In Colorado, bigamy is defined: “Any married person who, while still married, marries or cohabits in this state with another commits bigamy”, which is a felony, by the way.

EDIT 4/12/14: Steve Harkess, from Colorado Legal Solutions, says in the comments that “Per C.R.S. 18-6-203, “‘cohabitation’ means to live together under the representation of being married.” Therefore, so long as you do not represent that more than one person is actually your wife (or husband) there is no cohabitation and you are not committing bigamy.” However, former judge Chris Leroi recently advised on avvo.com that a partially married poly family with kids would be “in danger of criminal charges and of having his children taken from him in a dependency and neglect action” even if they didn’t describe the third partner as a spouse. So clearly there is some disagreement. And since there are no recent Colorado cases that I have been able to find to point to (at least none that have been reported in the news) for an official ruling, it’s hard to say for sure. 

This is very similar to the Utah law in question. But what’s important to understand is that most of the law was left in place. In the 91 page opinion by Judge Waddoups, the ONLY thing struck down was the word “cohabitate”.

Cohabitation, in the law, generally means two people who are not married, but live together in an emotionally or sexually intimate relationship. Three states (Mississippi, Florida and Michigan) still prohibit cohabitation by ANY unmarried people, though these laws are generally considered to have been invalidated by Lawrence v Texas.

Unlawful cohabitation, where prosecutors did not need to prove that a marriage ceremony had taken place (only that a couple had lived together), had been a major tool used to prosecute polygamy in Utah since the 1882 Edmunds Act. In other words, simply living under one roof is close enough to “married” for them to prosecute. This is still true in Colorado.

The importance of the word “cohabitate” is that it separates a law of policy from a law of morality. One is a law about what the government will or won’t do. The other is a law that tells people what they can and can’t do.

A good comparison would be with the gay rights. While same-sex marriage is still an open question being settled dramatically all over the country. The question of gay legality has been settled since 2003, when the US Supreme Court ruled in Lawrence v Texas that sodomy laws were unconstitutional, and basically established a right to sexual privacy which prohibits states from legislating how and with whom people choose to have sex.

In the same way, this ruling (while only applying to Utah) has said that it is ok for people to live as if they were married to multiple people without fear of criminal prosecution. But the judge stopped short of providing any other protections or rights to those individuals. The state will still not recognize them as married and will not give any of the associated rights or considerations except to spouses that had a properly processed marriage license.

SO…… WHAT DOES IT ALL MEAN

So the most accurate way to describe what happened is to say that polygamy has been “decriminalized” in Utah, but has still not been legalized.

It is absolutely still worth celebrating, but in context. There are still a lot of states that still prohibit “cohabitation” or otherwise criminalize poly families. Here is a rundown of where they all stand. (Information obtained from http://usmarriagelaws.com/)

All 50 states have statutes against bigamy (multiple licensed marriages). In most states, bigamy is a felony.
In the following states, bigamy is a misdemeanor. However, once the penalty is paid, you are back at square one.

Alaska
Arkansas
Hawaii (petty misdemeanor– 30 days in jail)
Iowa
Maine
Missouri
Montana
Nebraska
New Jersey
Ohio
Pennsylvania
Rhode Island (misdemeanor, $1000)
Tennessee
Texas

The following lists are ordered by which states have the most promising statutorily. The first list is the best, the last list is the worst.

The following states, have no statutes against fornication, adultery, or cohabitation, and they also do not recognize common-law marriages.

California
Hawaii
Nevada
Oregon
Washington

The following states have statutes that concern adultery, but none for fornication, cohabitation, or common-law marriage. In some of them adultery is grounds for divorce only. In others the offending spouse simply forfeits any rights to the innocent spouse’s estate. In the rest of them, adultery is a crime that can only be prosecuted by the offended spouse. In a successful polygamous relationship, these need not be obstructive. If the relationship fails, however, the statutory adulterer will be charged.

Connecticut
Delaware
Indiana
Kentucky
Louisiana
Maine
Maryland (Adultery results in a $10 fine and is grounds for divorce)
Missouri
New Jersey
Ohio
South Dakota
Tennessee
Texas (Texas does recognize common-law marriages, but apparently only if they are registered with the county clerk)
Vermont

Both states make adultery and fornication misdemeanors, although in Illinois the conduct must be “open and notorious.” For interest’s sake, we have listed all of the states whose statutes are no worse than Georgia or Illinois. This only means that in these states you are as likely as not, to be able to find a lawyer who will talk to you.

Arizona
Georgia
Illinois
Michigan
Minnesota
New Hampshire (New Hampshire recognizes common-law marriages, but only for inheritance purposes after death)
New Mexico
New York
North Dakota

The following states have laws against cohabitation.

Alabama
Alaska
Arkansas
Colorado
Florida
Massachusetts
Mississippi
Nebraska
North Carolina
South Carolina
Virginia
West Virginia
Wyoming

The following states recognize common-law marriages, or else make adultery a felony, and are not on the previous lists.

Idaho
Iowa
Kansas
Montana
Oklahoma
Pennsylvania
Rhode Island
Utah
Washington D.C.
Wisconsin