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California law makes it a crime to marry more than one person.
The law, however, has not been tested on constitutional grounds. There is an 1878 U.S. Supreme Court decision arising from Utah that held the First Amendment does not prohibit a statute outlawing polygamy. Other possible challenges to anti-polygamy laws, such as recently seen with challenges to anti-gay marriage laws, remain untested in the courts. For example, challenges per the due process or equal protection clauses of the US Constitution.
Consequently, California law prohibits polygamy, but the constitutionality of the law is unclear.
Application of California law to various situations, as discussed in this guide, are also of untested modern day challenges to their constitutionality.
Definitions
What is the difference between polygany and bigamy? There is none.
Polygamy and Bigamy occur when someone is who already married then marries another person. The terms are interchangeable and mean the same thing.
Today, the term commonly used is polygamy. In California law, the term is called bigamy.
FAQ
It is illegal for a married person to marry another.
If the second marriage occurs out of state then subsquent cohabitation, or living together, in California constitutes polygamy.
For example: Adam marries Eve in California. Adam then marries Venki in India where polygamy is legal. If Venki then comes to California to live with Adam that is illegal. The law does not require that Adam, Eve and Venki all live together. Just Adam and Venki.
It does not not matter if Adam and Eve are separated.
Although a person marrying an already married person can also be tried for a crime, that second marriage apparently must occur in California.
Thus, in our example, Venki has not committed any crime. But Adam has by cohabitating with Venki in California.
Note: The Constitutionality of California outlawing a legal marriage performed elsewhere has not been tested in court.
Can a man live with two women?
Yes. If all 3 are unmarried this is allowed.
If Adam and Eve are married, they can legally live with Venki, unless one of them marries Venki.
If Adam and Eve are married, they can legally live with Venki if Venki is married to Bill.
Adam and Eve and Venki and Bill can also all live in the same house.
Adam can live with Eve and Venki, if Eve is married Steve and Venki is married to Bill.
If Adam and Eve are married and Adam has a child with Venki, no crime has been committed.
Note: If you're thinking California's law does not make logical sense - you are not the only one.
What about common law marriages?
Common law marriages in California are not recognized. However, a common law marriage in a state where that is allowed, such as Colorado, are recognized in California.
Thus, if Adam and Eve have a common law marriage in Colorado, move to California, and Adam marries Venki in California, then Adam has committed polygamy even though there is (1) no certificate or state license showing two marriages, and (2) only one legal marriage was performed in California.
What about the Defense of Marriage Act of Proposition 22 and Proposition 8?
The California Defense of Marriage Act aka Proposition 22 enacted Family Code Section 308.5 which provides: "Only marriage between a man and a woman is valid or recognized in California"
That statute was ruled unconstitutional in a gay-marriage ruling by the California Supreme Court.
However, the California public then voted for Proposition 8, which placed in the same language in the California constitution (as compared to a statute in Proposition 22) and thus overruled the California Supreme Court. "Only marriage between a man and a woman is valid or recognized in California."
That language does not prohibit plural marriage.
Proposition 8 was ruled unconstitutional. Note although the ruling was appealed to the United States Supreme Court, the Supreme Court never ruled on it. Instead, the high said the ballot proponents pursing the appeal did not have standing. Only the State of California as a government could appeal.
The end result is the constitutionality of issues such as gay marriage, or plural marriage and polygamy, have yet to be conclusively decided by the US Supreme Court.
This is the "Sister Wives" case brought by Kody Brown in Utah which has received publicity due to reality television show Sister Wives.
This case and ruling, interestingly, did not even address polygamy or bigamy, and that practice is still against the law in Utah.
Kody Brown is legally married to one person. His other 'wives' on the Sister Wives show are only "married" to him in religious concept. Brown has not married them under the law and they do not have marriage certificates.
Legally speaking, Brown has not committed polygamy.
Utah law, though, also prohibited a married person from cohabitating, or living with an other person not their spouse.
If that seems obviously archaic you are right. This is the part of the law Brown and the sister "wives" were violating.
The court ruled the cohabitation prohibitation was unconstitutional. It violated both the First Amendment and Due Process rights.
Although this is a trial court ruling, it is significant as polygamy cases are rare and the judge reviewed at length the history of polygamy in this country, why it was considered immoral, and the legal and cultural changes in the country since the Supreme Court ruled in the
Bluntly, the judge ruled the Supreme Court's ruling in
However, since a lower court cannot technically overrule a higher court, the judge said the Supreme Court's 1878 ruling was extremely narrow and only applied to the First Amendment question of free exercise in the context of actual polygamy where there are two government issued marriage licenses.
Since Kody Brown did not have two marriage licenses the polygamy issue was moot.
On the issue of "religious polygamy" or cohabitation the court ruled Utah's law was unconstitutional.
Reynolds involved a First Amendment challenge to Utah law prohibiting polygamy.
The Supreme Court held that the First Amendment protects religious opinions, but not religious actions.
Thus, Congress or a state can prohibit human sacrifices because that is an action, even if believed by a religion. Similarly, the action of multiple marriages can be prohibited.
Since bigamy is a crime there must intent for one to be found guilty.
This means if you have a good faith belief you are not married, or a marriage is invalid, and it turns out you are mistaken and you marry again, your mistake can be a defense to the crime.
Example: the court in
California Penal Code Sections 281-284:
281. (a) Every person having a husband or wife living, who marries
any other person, except in the cases specified in Section 282, is
guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either
of the marriages by the register, certificate, or other record
evidence thereof, but the marriages may be proved by evidence which
is admissible to prove a marriage in other cases; and when the second
marriage took place out of this state, proof of that fact,
accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.
282. Section 281 does not extend to any of the following:
(a) To any person by reason of any former marriage whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living.
(b) To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a
competent court.
283. Bigamy is punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in a county jail not exceeding
one year or in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
pursuant to subdivision (h) of Section 1170.
(Note: There are two Section 284's in the Penal Code with similar provisions).