Under the First Amendment, government can’t pass laws that are intended to restrict religious liberty. Such laws are not at stake in this discussion. However, state and local laws that accidentally impinge on religious liberty — zoning laws, health and safety laws, etc., criminal statutes, laws against polygamy — have been allowed as long as those laws at least have a rational basis.Bookman points out the history of denying the polygamous freedom to marry.
Under SB 129, however, a mere “rational basis” would no longer be sufficient. Laws that impinge accidentally on religious liberty would be allowed ONLY when those laws advance a “compelling governmental interest.”
Peter Nash Swisher, a national expert in family law and a professor at the University of Richmond Law School, has looked at the issue and is very dubious about whether such a compelling interest can be found. With recent Supreme Court decisions combined with state and federal RFRAs, ” … proponents of polygamous marriage now have, in my opinion, a very strong case for validating polygamous marriages on cultural, religious, and constitutional grounds.
As Swisher notes, the Old Testament is full of instances of polygamy, and the Muslim faith allows a man to have as many as four wives. Martin Luther, the founder of Protestantism, “observed that polygamy does not contradict Scripture, and so cannot be prohibited by Christianity.”
There are ordained ministers ready and eager to perform same-gender weddings, polyamorous weddings, polygamous weddings, and consanguinamorous weddings. If a state truly wants to support religious freedom, it will support full marriage equality.