STRASSBERG.DOCX (DO NOT DELETE) 9/6/2016 2:08 PM CAN WE STILL CRIMINALIZE POLYGAMY: STRICT SCRUTINY OF POLYGAMY LAWS UNDER STATE RELIGIOUS FREEDOM RESTORATION ACTS AFTER HOBBY LOBBY Maura Irene Strassberg* State criminal polygamy laws substantially burden the religious polygamy practiced by Fundamentalist Mormons and others, and can be subjected to strict scrutiny in those states where mini-RFRAs have been enacted. Such strict scrutiny may be influenced by the Supreme Court’s most recent RFRA case, Burwell v. Hobby Lobby Stores, Inc., which continues the Court’s development of an even “stricter” form of scrutiny under the RFRA than it has applied in free exercise cases. Defense of polygamy laws will initially require identification of a compelling state interest. The illegitimate, vague, and unsupported state interests previously provided in the Supreme Court case of Reynolds v. United States, as well as subsequent lower court and state cases, must be replaced by a more modern and empirical under- standing of the harms of polygamy. This can be found in the recent Canadian case on the constitutionality of its criminal polygamy law, Reference re: Section 293 of the Criminal Code of Canada. Refer- ence relied upon a statistical analysis of empirical data from 172 countries on the differential impact of monogamy versus polygamy; in addition to expert testimony from academics in the fields of evolu- tionary psychology, economic, political science, and nursing, from medical and psychological clinicians; and anecdotal evidence from husbands, wives, and children of polygamy. The goal was to specifi- cally identify the harms of polygamy to women, children, men, and * Professor of Law, Drake University Law School,
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