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Polygamy Law is Focus of Witte's Library of Congress Appointment
By Patti Ghezzi | Emory Law | Aug 2, 2012 12:08:00 AM

Emory University law professor John Witte, Jr. has been named the Maguire Chair in Ethics and American History at the John W. Kluge Center of the Library of Congress. Appointed by Librarian of Congress James H. Billington, Witte is serving during the summer and fall of 2012.

While at the Library, Witte is working on his 27th book, “Why Two in One Flesh? The Western Case for Monogamy over Polygamy.” Witte considers the constitutionality of the West’s traditional criminal prohibitions on polygamy to be “one of the hard questions just over the horizon of American family law.”

 Courts Face Questions on Polygamy

 “Every state in the union and every nation in the West criminalizes bigamy or polygamy,” he says. Can these laws stand in the post-modern globalized legal culture of the 21st century, or will they go the way of traditional laws against adultery, contraception and sodomy?

 “American courts are already facing these challenges,” says Witte. “Various Fundamentalist Mormons, Muslim and Hmong immigrants, Native American Indians and others all practice polygamy in open violation of American state laws. When one of these polygamists gets prosecuted, will government be able to meet the challenge of constitutional protections of privacy, sexual autonomy, equal protection and religious freedom? Or will the courts be compelled at least to exempt religious polygamists from these criminal prohibitions?  So far, state and federal courts have held firmly against polygamists. It’s not clear how long that will last.”

State legislatures will soon face these challenges, too, Witte says, “as parties press not just for toleration of polygamy, but for full state recognition.” The states already offer several “off-the-rack models” of domestic relations: straight and gay marriage, contract and covenant marriage, civil union and domestic partnership. With so much diversity in place, “what’s to stop a liberal legislature from adding polygamy to the menu?” he asks.

 History of Polygamy

That’s the question Witte is wrestling with in his new book. He shows that the West has prescribed monogamous marriage for 2,500 years, and criminalized polygamy for 1,750 years. Polygamy was a capital crime in the West from the ninth to the 19th centuries.

Polygamy prohibitions, he says, are both “pre-Christian” in origin and “post-Christian” in application. “Roman law criminalized polygamy before Christianity was established and Enlightenment liberals were the most powerful defenders of the modern common law aversion to polygamy,” he says.

Do these traditional arguments against polygamy still stand? Can they be reconstructed for our day? For Witte, the “jury is still out” as he works through the mountains of historical and contemporary writing on these questions.

 Witte, Maguire Chair

Witte, a specialist in legal history, marriage law and religious liberty, is Jonas Robitscher Professor of Law, Alonzo L. McDonald Family Distinguished Professor, and director of the Center for the Study of Law and Religion at Emory. He also serves as a member of the Scholars Council at the Kluge Center.

Witte has published 220 articles and 15 journal symposia in addition to his 26 books. Among his most recent titles are: “From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition,” 2d ed. (Westminster John Knox Press, 2012); “No Establishment of Religion: America’s Original Contribution to Religious Liberty” (Oxford University Press, 2012 with T. Jeremy Gunn); “Religion and Human Rights: An Introduction” (Oxford University Press, 2012, with M. Christian Green); and “The Sins of the Fathers: The Law of Theology of Illegitimacy Reconsidered” (Cambridge University Press, 2009).

Witte edits “Emory Studies in Law and Religion Series,” an imprint of Wm. B. Eerdmans. He has been selected 10 times by Emory Law students as the Most Outstanding Professor and has won dozens of other awards and prizes for his teaching and research. His writings have appeared in 10 languages, and he has given more than 400 public lectures throughout North America, Europe, Japan, Israel, Hong Kong, Australia and South Africa.

The Cary and Ann Maguire Chair in Ethics and American History was established to explore the history of America with special attention to the ethical dimensions of domestic economic, political and social policies. Research includes the conduct of politics and government at all levels of American life and in all branches of government as well as the ethical dimension of leadership in religion, business, urban affairs, law, science and medicine. The goal is to support research that will illuminate the responsible use of ethical knowledge for the public good. The chair holder concentrates on domestic American matters with special emphasis on how law relates to ethics.