The Polygamy Amendments

The U.S Constitution and its relationship with the institution of marriage has always been fraught with tension. Although the most recent area of intersection is the landmark case, Obergefell v. Hodges (2015), discourse on marriage in constitutional history extends beyond the scope of same-sex marriage. In fact, the nineteenth century was rife with antagonism surrounding the practice of polyamy, yielding disparate approaches to constitutional interpretation that continue to govern discourse on marriage today.

According to the Amend Project’s data, members of Congress proposed 49 amendments pertaining to the prohibition of polygamy between the years 1879–1924, a period during which polygamy had seized the American public imagination. All of these measures sought to enact a federal ban on polygamy. The first recorded antipolygamy amendment proposal in Congress was by Representative Julius C. Burrows, a Michigan Republican, in 1879. His proposed amendment simply states: “SECTION 1. Polygamy shall not exist within the limits of the United States or any place subject to their jurisdiction. SEC. 2. Congress shall have power to enforce this article by appropriate legislation.”

A total of 14 amendments were proposed by 1892. Following Utah’s admission into the Union in 1896, five more amendments were proposed against polygamy. The antipolygamy amendments in the Amend dataset were proposed by Congressmen from 22 out of the 26 states in the Union, indicating geographically widespread antipolygamist sentiment during the time period and a moral mandate, held by many Congressmen, to counter the perceived prevalence of polygamy in the United States. Only 11 out of the 49 amendments were proposed in the Senate; the rest were proposed by Representatives, illustrating the reach of antipolygamy hysteria in the United States. The state of Massachusetts was responsible for the highest number of proposed amendments (11 out of 49), over a fifth of all antipolygamy amendments proposed.

In 1875, President Ulysses S. Grant proposed an amendment to the Constitution that would “drive out licensed immortality, such as polygamy and the importation of women for illegitimate purposes.’ This association of polygamy with sin — and with sex trafficking which was often called, at the time, as “white slavery” — is reflected in the language of antipolygamy amendments in Congress. Antipolygamists subscribed to moral constitutionalism, the notion that the U.S Constitution was intended to uphold Christian principles of morality.1 The campaign against polygamy coincided, notably, with the rise of the Comstock Laws, the first of which, the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, was passed in 1873, banning the sale through the male of everything from sex toys to abortion medication. Antipolygamy was, in other words, Comstockery.

Yet the Amend data reveals that the campaign against polygamy also lines up with a wave of interest in amending the Constitution to acknowledge the existence of a deity. Those so-called God amendments, another brand of moral constitutionalism, invoke principles to those found in the language of the antipolygamy amendments. For instance, in 1883, Congressman William Rosecrans, a Democrat from California, insisted that polygamy is “incompatible with our civilization,” reflecting the antipolygamist assertion that the religion clauses of the First Amendment, even while disestablishing religion, “enshrined a Protestant vision.”2 The antipolygamy amendments proposed in Congress reflect a commitment to this vision and reading of the Constitution.

Mormons in the United States valued state autonomy as a means to protect the practice of polygamy. To counter that position, Antipolygamists sought to exercise federal power over both family life and states’ authority. Amendments proposed by antipolygamists in Congress specify that “the United States and every State shall prohibit the same by law within their respective jurisdictions.” In this way, antipolygamy amendments in Congress reflected a support for stronger central government that could supersede state governments, such as that of Utah. Indeed, the nineteenth century broadly saw amendments proposed that supported Congress’s right to “make a uniform law of marriage and divorce” and specifically stipulated Congress's power to regulate marriage laws in all states and territories, which polygamists rejected and condemned as unconstitutional.

Interestingly, the antipolygamy amendments in the Amend dataset did not just outlaw polygamy – they also, in what essentially amounted to the introduction to a religious test, barred polygamists from running for office. Five amendments, proposed by three different Representatives, state that “no person shall be Senator or Representative in Congress or eligible to President or Vice-President or hold any other office of honor or emolument, whether civil or military, under the United States or under any State or Territory thereof, or be permitted to vote at any election for any such officers in either State or Territory who shall be found guilty of polygamy or polygamous cohabitation.” In this way, antipolygamy amendment efforts in Congress were totalizing and supported the complete erasure of polygamy from society.

Support for these antipolygamy proposals one limited. On the one hand, and unsurprisingly, no member of Congress ever proposed an amendment to constitutionalize polygamy. On the other hand, none of the proposals to ban it had any success whatsoever. Instead, these proposals testify to the interest among some members of Congress in enshrining, or at least being seen to appear to enshrine, Christian Protestant ideals of marriage in the Constitution. The timing, proposers, and language of Congressional amendments highlight the virality and hysteria of antipolygamy sentiments in the late nineteenth century, as well as a commitment to a Christian marriage structure viewed as foundational to American society.

In many ways, these failed amendments can be seen to prefigure the many “defense-of-marriage” amendments that sought, in the years after the emergence of the gay rights and later marriage equality and LGBTQ movements, to define marriage as between a man and a woman. In 1996, Congress passed the Defense of Marriage Act, undertaking the same. But defense-of-marriage amendments failed. Instead, Obergefell v. Hedges and Windsor v. United States struck down state laws banning same-sex marriage, ruling that these laws violated the Fourteenth Amendment. And in December 2022, in part in fear that the court that struck down Roe v. Wade might one day reverse Obergefell, Congress passed the Respect for Marriage Act, which overturned the Defense of Marriage Act and provided a definition of marriage that embraced same-sex marriage but discounted polygamy: “an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into.” The Respect for Marriage Act also includes broad language celebrating Americans’ changing ideas about marriage itself: “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.” This language is very different from the “incompatible with civilization” ethos that dominated the antipolgamy crusade a century and a half earlier.