22 Duke J. Gender L. & Pol'y 1 (2014-2015)

handle is hein.journals/djglp22 and id is 1 raw text is: Marriage Outlaws: Regulating Polygamy in America
CASEY E. FAUCON*
Polygamist families in America live as outlaws on the margins of society. While the
insular groups living in and around Utah are recognized by mainstream society, Muslim
polygamists (including African-American polygamists) living primarily along the East
Coast are much less familiar. Despite the positive social justifications that support
polygamous marriage recognition, the practice remains taboo in the eyes of the law.
Second and third polygamous wives are left without any legal recognition or protection.
Some legal scholars argue that states should recognize and regulate polygamous
marriage, specifically by borrowing from business entity models to draft default rules
that strive for equal bargaining power and contract-based, negotiated rights. Any
regulatory proposal, however, must both fashion rules that are applicable to an American
legal system, and attract religious polygamists to regulation by focusing on the religious
impetus and social concerns behind polygamous marriage practices. This Article sets out
a substantive and procedural process to regulate religious polygamous marriages. This
proposal addresses concerns about equality and also reflects the religious and as-practiced
realities of polygamy in the United States.
INTRODUCTION
Up to 150,000 polygamists live in the United States as outlaws on the
margins of society.1 Although every state prohibits and criminalizes polygamy,2
Copyright © 2014 by Casey E. Faucon.
* Casey E. Faucon is the 2013-2015 William H. Hastie Fellow at the University of Wisconsin
Law School. J.D./D.C.L., LSU Paul M. Hebert School of Law. B.A., Rice University. The author would
like to thank Professor Tonya Brito for her direction, guidance, and valuable time; the University of
Wisconsin Law School's Institute for Legal Studies Workshop participants; the participants in the
University of Wisconsin Law School's family law conference, Nontraditional Marriages:
Transgressive and Transformative, for critical and insightful suggestions on earlier drafts, including
Professors Cynthia Grant Bowman and Nancy Polikoff, and the participants of the University of
Wisconsin Law School's Junior Faculty Workshop for critiquing earlier drafts.
1. Barbara Bradley Hagerty, Some Muslims in U.S. Quietly Engage in Polygamy, NPR (May 27,
2008), available at http://www.npr.org/templates/story/story.php?storyld=90857818. The estimated
number of polygamists in the U.S. is between 30,000 and 150,000, but reporting is unclear and the
standards used differ. See Jonathan Turley, Polygamy Laws Expose Our Own Hypocrisy, USA TODAY,
Oct. 4, 2004, available at usatoday30.usatoday.com/news/opinion/columnist/2004-10-3-turleyx.htm
(limits number of polygamists to 50,000), but see Samuel D. Brunson, Taxing Polygamy, 91 WASH. U.L.
REV. 113, 146 (2013) (estimates the number of polygamists as high as 150,000).
2. Bigamy is a crime in 49 states and the District of Columbia. Massachusetts is the only state
that criminalizes polygamy and does not have a separate bigamy statute. See Claire A. Smearman,
Second Wives' Club: Mapping the Impact of Polygamy in U.S. Immigration Law, 27 BERKLEY J. INT'L LAW
382, 429 (2009).

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