The Current Legal Standing of Polygamy in Nevada
Until the second half of the 19th century, polygamy was a well-accepted practice in Nevada. Section 398 of the Nevada Statutes permitted any person to have as many families as they pleased, provided that there was no more than one woman at a time in each family. Those wishing to marry legally had only to appear before any justice of the peace and present their birth certificates, accompanied by a sworn statement that they were single and free to marry. At this point, the only restriction on polygamy was that the parties were not related by blood.
In the late 1800s, polygamy began to come under fire. The U.S. government viewed plural marriages as objectionable not only as a matter of immorality, but also as hostile to the unity of the nation. In 1862, Congress passed the Morril Anti-Bigamy Act, which forbade plural marriages in the states and territories. A federal court, however, refused to enforce it until Congress included the necessary legislation to impose penalties. In 1882, Congress passed the Edmunds Act, which included penalties against polygamy and was later revised by the Edmunds-Tucker Act of 1887.
With regard to Nevada, the Supreme Court of the Territory of Nevada in 1886 sustained the constitutionality of the Morril Anti-Bigamy Act , holding that Congress had supreme power over territories. In that decision, it was determined that the common law doctrine that polygamy was not to be permitted was subject to modification by legislation, and it was not unconstitutional to employ such legislation to affect that end. Although attempts were made to prosecute polygamists under the Morril Act virtually from the time of its enactment, Chief Justice Stephen A. Field of the U.S. Supreme Court decided in 1890 that it could not be used to punish polygamists because it did not define polygamy as a crime; rather, it merely established a special mode of prosecution.
In 1891, the Nevada Legislature responded with an anti-polygamy statute of its own. That statute has been amended several times since then, and has been continued in the code as section 125.050. Enacted as a felony in Section 1, the statute was made a gross misdemeanor (and now reads as a category D felony) in 1931. Amendments in 1977 and 1979 made the section apply to the "purported" (i.e., collusive) issue of bigamy; subsequent amendments have expanded the statute to cover members of cults, communes, and polygamous families and have eliminated the multiple bigamy provision.
A Historical Overview of Polygamy Law in Nevada
The historical context of polygamy laws in Nevada dates back to the state’s early settlement and establishment of its legal systems. Although polygamy was practiced by some early settlers, the legal view of polygamy began to shift as societal norms evolved. In the late 19th century, with the rise of the Church of Latter-day Saints (Mormons) in Nevada and surrounding states, the national battle against polygamy intensified. The U.S. Parliament responded with the Morrill Anti-Bigamy Act in 1862, which sought to penalize the practice of bigamy. This act, and subsequent actions by the Federal Government, led to legal challenges and changes at both the state and federal levels. In 1901, the Supreme Court of the United States upheld the federal government’s power to prohibit polygamy and punish those who continued in its practice in the case of Late Corp. of the Church of Jesus Christ v. United States. A series of subsequent cases further clarified federal authority over matters of marriage and family. In the early 20th century, all states – including Nevada – prohibited polygamy. The current Nevada Unit of the publication "Bigamy" in the 2010 edition of Coral Smith’s "Nevada Law and Practice" implies that the ban on polygamy is a vestige of that time. It states that polygamy remains a crime in the state, backed with significant potential fines and imprisonment. However, it notes that the law is not actively enforced. Thus, in the historical context of Nevada, the anti-polygamy stance is a continuation of early federal and state legislative efforts to discourage and deter the practice of polygamy.
A Legal Comparison of Polygamy Across Different States
The legal landscape for polygamy across the United States offers a complex and often contradictory picture. While most states, like Nevada, have no sitting polygamists, they still expressly prohibit the practice. The laws criminalizing polygamy vary in their severity and in how actively they are enforced.
Utah, perhaps the state most commonly associated with polygamy, retains a section in its criminal code (76-7-101) about "bigamy" which punish individuals who enter into "marriage" or "cohabitation" with more than one person. The statute further clarifies that marriage and cohabitation both mean live with a person as if married, regardless of the legality of the formal institution. The penalties for bigamy range from a third-degree felony for subsequent offenses to a quintuple felony for marriage involving "any person under the age of 18." Utah also makes it a fifth-degree felony to "conspire" to commit bigamy.
Other states with similar laws include Arizona, Arkansas, Connecticut, Idaho, Missouri, West Virginia, and Wyoming. Several of these states, however, like Mississippi, outlaw getting married to more than one person simultaneously as opposed to the practice of polygamy. At least five states — Minnesota, Montana, Nevada, Texas, and South Carolina — have no statutory offense, statutory definition, or judicially adopted definition of polygamy. In these states, however, the legislature has chosen to limit the authority of its courts to impose penalties on cohabitation. Therefore, while polygamous unions are not recognized by law, neither are they squarely punished.
At the federal level, polygamy is also expressly prohibited, though enforcement is rare and often impractical because of the legal bind issued in 1963 in the U.S. Supreme Court decision Barlow’s v. Utah, 329 U.S. 824 (1963), and later upheld in Reynolds v. US, 98 U.S. 145 (1878), which "leave room [] for the full scope of religious freedom by excluding central practices of religion from policing activity of states and municipalities." Article 4, section 2 of the Nevada Constitution is substantially consistent with the federal ruling.
A few factors account for the relative lack of successful prosecutions of polygamists in contemporary society, particularly in a religiously and morally conservative leaning state. First, many polygamists live in isolated or quietly integrated communities of their own, rendering prosecution for polygamy, bigamy, or conspiracy to commit bigamy tricky at best. Additionally, an increasing number of people now seem to look the other way when polygamy, bigamy, or cohabitation arises in their own lives. All of these factors create a perplexing and inconsistent picture of polygamy both under common standards and across state lines.
Legal Ramifications of Engaging in Polygamy in Nevada
The legal ramifications for polygamy in Nevada depend on the status and legality of the marriage. If none of the marriages were recognized as valid in the first place, then there is nothing to be punished. If one or more of the marriages were recognized as valid, then the relationships are in legal jeopardy. If no marriages are legally recognized then the individuals can be charged with adultery. Adultery is an offense whether it is one person in a relationship with two other people or a three way relationship or even if all three are interwoven. Adultery is an offense because all of the parties are married to someone else. Nevada Revised Statutes (NRS) 201.810, concerning adultery, states: 201.810 Polygamy: Offense defined; penalty. 1 . It is an offense against the peace and dignity of the State for any person who having a husband or wife shall marry any other person or persons, either in the lifetime of the husband or wife, or during their separation from bed and board, or after the death of the husband or wife, unless permitted so to do by[§] 122.050; or if any person who, having no husband or wife, shall marry more than one person at the same time; and every person who commits such offense shall for every offense, be guilty of a gross misdemeanor. 2. If any person so married knows of the previous marriage, or marriages, of the parties by whom he or she is so married, and this shall appear on the trial of the case, the court may in its discretion impose upon the offender an additional fine not exceeding $500 for each of such marriages of which the offender knew, as well as imprisonment as provided in subsection 1.
Culture and Society: The Effect of Polygamy in Nevada
The social and cultural impact of polygamy in Nevada is a complex issue that has both proponents and opponents. From a social standpoint, advocates argue that polygamy fosters a close-knit and supportive community. They believe that plural marriages offer emotional, financial, and social security, especially in larger families where parents can share responsibilities and resources. Supporters also suggest that polygamy allows for more cultural and religious diversity, as it enables people from different backgrounds to live according to their beliefs.
On the other hand, opponents of polygamy in Nevada argue that such relationships often create challenges related to jealousy, competition, and unequal distribution of attention among spouses. Critics say that polygamy can lead to a host of issues, including financial instability, emotional distress, and exploitation, particularly of the women involved. These concerns are heightened by allegations of abuse and criminal activity linked to some polygamist communities in neighboring states.
Socially, the broader community remains wary of polygamy, largely due to its uncommon nature and potential legal ramifications. The criminalization of polygamy, though not aggressively prosecuted, reflects the state’s stance on the matter. For many, the idea of polygamy remains outside of societal norms, and its practice can be viewed as a rejection of mainstream values.
Polygamy and Freedom of Religion: Insights into Nevada Law
In the context of polygamy in Nevada, one of the most influential aspects is the religious component. As the Foundation for Apologetic Information and Research notes: "The [diverse] religious communities do not all practice polygamy. In fact, most do not, even among those that endorse some form of polygamy. […] Yet, many polygamists of different backgrounds claim their right to practice polygamy free from state interference on the basis of the free exercise of their religious beliefs."
A key question that has arisen in Nevada and other states throughout the nation is whether or not there is such a thing as "free practicing of polygamy," and how law enforcement officials and courts can approach this issue. While religious pacifism is somewhat universally accepted by most religious groups , even if it is not actively practiced (i.e., a Christian who does not adhere to the principle of "turning the other cheek," but recognizes its general social importance), polygamy is a bit more controversial.
In 2010, a case was held in Nevada, where the question of polygamy was examined under the free exercise clause; namely, U.S. v. Bishop. The controversial ruling stated that "polygamy could be a religious practice," and that law enforcement must therefore seek alternative means to prosecute individuals involved in polygamy. Not long thereafter, a case involving the Church of Jesus Christ of Latter-day Saints found that churches cannot be criminally prosecuted for sanctions in doctrine or executive action.