More correspondence with a lawyer on bigamy

Saturday, April 4, 2009 5:01 AM
“‘John T. Floyd'” <>

The First Amendment argument is logical. Problem is that logic is not a welcomed visitor in the courtroom. The courts in Texas under its constitution would argue there are no restrictions on free speech. They would say that the legislature has created three prerequisites for bigamy: agreement to marry, cohabitation as husband/wife, and representation of marriage. If a polygamist represented his second relationship as a “spiritual union” or “spiritual unity” or “spiritual agreement,” then he would have a defense, we believe, against marriage. His free speech rights under either the Texas or federal constitution would not be violated simply because he could not use the term “marriage” in public to define his second or third or fourth relationship. Multiple relationships are not, standing alone, illegal. It’s the manner in which the individual defines those relationships to the public. The Texas bigamy statute prohibits him from defining the relationships as “marriages” – whether state-sanctioned ceremonial, common law, or “spiritual” marriages.


The recent decision by the Iowa Supreme Court legalizing “gay” marriages (along with Connecticut and Massachusetts) will ultimately create the new line of attack on bigamy statutes, The traditional reason for prohibiting homosexual marriages, just as with multiple marriage, is the threat they pose to our society’s historical definition of “marriage.” If gay marriage does not unconstitutionally threaten that historical definition, then certainly polygamy does not pose a greater threat. Again, as we presented in our blog, Texas does not, nor do most states, protect marriage, either through its constitution or laws, as an “institution.” It is a “status.” A “status” can be redefined while an “institution” cannot. Ergo, “gay” marriages in Iowa (the American “heartland”), Connecticut and Massachusetts ).


Hope this helps answer your question.


[My response:]

I greatly appreciate your responding to this quintessential question of bigamy’s place on the law books.

I personally question the notion that the existence of a so-called “status” or “institution” has any place in the law books. I still think that’s a restriction on free-speech, free expression, and free thought, and I believe the common law bigamy law can be challenged on that basis. I don’t see any other way around it.

As long as the government can write laws that enshrine definitions for things such as marriage, they can also create definitions for other customs and practices and criminalize human relationships or activities. Take the term “girlfriend” which everyone knows and recognizes — sort of. What’s to stop the government from writing a law that prohibits someone from having a “girlfriend” from another country or to have several at the same time?

These are just social terms (“girlfriend,” “marriage,” “lover,” “associate,” “colleague”), that are constantly changing in their connotations and even definitions on an informal level. Are definitions themselves the province of the legislature? Can the legislature rewrite Webster’s dictionary tomorrow with the stroke of a pen and tell people which words they can and cannot use in public or just in a social context? Can they tell people how they can and cannot define themselves?

Thanks again for the reasoned reply,



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