Is Indiana Now A Destination Wedding Venue for Polygamists?
When we litigated the case seeking the recognition of same sex marriage in Indiana, we constantly had people trying to lead us down a slippery slope, claiming that recognition of same sex marriage would lead to the recognition of polygamy. As Ken Falk of the ACLU successfully argued to the Seventh Circuit, the slippery slope led to a dead end because the "arc of our jurisprudence" in Indiana has consistently held that marriage consists of two people.
Now, how ironic that the door to polygamy has been opened by the very persons who opposed same sex marriage and who propounded the adoption of Indiana's version of the Religious Freedom Restoration Act ("RFRA "). As everyone cancels their trips to Indiana in protest over the adoption of RFRA, the group that we may see making reservations for long term stays in Indiana are the people seeking a destination wedding where they can practice polygamy on religious grounds.
Defining marriage has long been recognized as the purview of the state. Federal law does not enter the arena of defining who can marry except when a state exceeds its authority, e.g., by infringing upon a couple's U.S. Constitutional right to Equal Protection as was the case for same sex couples. Prior to the enactment of RFRA, Indiana courts had long recognized that "[t]he religious doctrine or belief of a person cannot be recognized or accepted as a justification or excuse for his committing an act which is a criminal offense under the law of the land." The State v. Chenoweth, 163 Ind. 94, 71 N.E. 197, 199 (1904). Under the federal constitution, there is no right to engage in polygamy. However, under Indiana law, there is now a very good faith argument that RFRA offers a defense to a criminal charge of bigamy and a rebuttal to Indiana's governmental limitation of marriage licenses to two people.
Under RFRA, "a governmental entity may not substantially burden a person's exercise of religion." I.C. 34-13-9-8(b). "'[E]xercise of religion' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." I.C. 34-13-9-5. It appears that once the plaintiff makes a showing that his exercise of religion is burdened or likely to be burdened, the State must then prove "that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." In other words, the State must satisfy a strict scrutiny standard of review. As those who deal in constitutional law know, the State loses 99.9% of the time under a strict scrutiny standard.
How hard would it be for an individual to prove that polygamy is an exercise of religion? Not very hard under the broad definition of "exercise of religion" and the historical roots of polygamy in this country arising as a religious practice. Typically, a party advocating for polygamy - up until now - would have had to argue the infringement of a federal or state constitutional right. Now, one could argue that RFRA grants the right to practice polygamy without governmental interference. And if the challenge is made as applied only to the facts of a particular case, it is hard to envision what compelling interest the state might put forward if the only parties involved are three adults who are competent and otherwise satisfy the requirements necessary to secure a marriage license.
Who would have thought that Indiana would have progressed from being one of the more conservative states regarding marriage to one of the more liberal states? I doubt that even the legislators who voted for RFRA thought about this possibility!
When we litigated the case seeking the recognition of same sex marriage in Indiana, we constantly had people trying to lead us down a slippery slope, claiming that recognition of same sex marriage would lead to the recognition of polygamy. As Ken Falk of the ACLU successfully argued to the Seventh Circuit, the slippery slope led to a dead end because the "arc of our jurisprudence" in Indiana has consistently held that marriage consists of two people.
Now, how ironic that the door to polygamy has been opened by the very persons who opposed same sex marriage and who propounded the adoption of Indiana's version of the Religious Freedom Restoration Act ("RFRA "). As everyone cancels their trips to Indiana in protest over the adoption of RFRA, the group that we may see making reservations for long term stays in Indiana are the people seeking a destination wedding where they can practice polygamy on religious grounds.
Defining marriage has long been recognized as the purview of the state. Federal law does not enter the arena of defining who can marry except when a state exceeds its authority, e.g., by infringing upon a couple's U.S. Constitutional right to Equal Protection as was the case for same sex couples. Prior to the enactment of RFRA, Indiana courts had long recognized that "[t]he religious doctrine or belief of a person cannot be recognized or accepted as a justification or excuse for his committing an act which is a criminal offense under the law of the land." The State v. Chenoweth, 163 Ind. 94, 71 N.E. 197, 199 (1904). Under the federal constitution, there is no right to engage in polygamy. However, under Indiana law, there is now a very good faith argument that RFRA offers a defense to a criminal charge of bigamy and a rebuttal to Indiana's governmental limitation of marriage licenses to two people.
Under RFRA, "a governmental entity may not substantially burden a person's exercise of religion." I.C. 34-13-9-8(b). "'[E]xercise of religion' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." I.C. 34-13-9-5. It appears that once the plaintiff makes a showing that his exercise of religion is burdened or likely to be burdened, the State must then prove "that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." In other words, the State must satisfy a strict scrutiny standard of review. As those who deal in constitutional law know, the State loses 99.9% of the time under a strict scrutiny standard.
How hard would it be for an individual to prove that polygamy is an exercise of religion? Not very hard under the broad definition of "exercise of religion" and the historical roots of polygamy in this country arising as a religious practice. Typically, a party advocating for polygamy - up until now - would have had to argue the infringement of a federal or state constitutional right. Now, one could argue that RFRA grants the right to practice polygamy without governmental interference. And if the challenge is made as applied only to the facts of a particular case, it is hard to envision what compelling interest the state might put forward if the only parties involved are three adults who are competent and otherwise satisfy the requirements necessary to secure a marriage license.
Who would have thought that Indiana would have progressed from being one of the more conservative states regarding marriage to one of the more liberal states? I doubt that even the legislators who voted for RFRA thought about this possibility!