On June 3, 1862, President Lincoln signed into law a bill "to punish and prevent the Practice of Polygamy in the Territories of the United States." The law annulled acts of the territorial legislature that countenanced polygamy, which in 1852 had been incorporated into the practices of the Church of Jesus Christ of Latter-day Saints.

Then, as now, Mormons controlled the government in Utah.

George Reynolds was prosecuted for violating congressional proscriptions of plural marriages. He appealed to the U.S. Supreme Court, which declared in Reynolds vs. United States (1879) that the First Amendment was never "intended to prohibit legislation in respect to [marriage], this most important feature of social life."

The unanimous court held that just as none could possibly believe that claims of religious freedom could prevent government from outlawing human sacrifice, so may government prescribe the rules for marriage.

Eleven years later, the unanimous Supreme Court declared in Davis vs. Beason: "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States," which are constitutionally sound.

So on Sept. 25, 1890, the presiding officer of the Mormon Church acknowledged Congress' power to define marriage and urged all members of his church "to submit to those laws." In 1896, Congress admitted officially monogamous Utah as a state of our union.

Although this is surely "settled" law, our "civilized and Christian" country has become unsettled over polygamy.

The March 28 episode of television's Boston Legal favorably portrayed a "family" with one husband, two wives and several children. The judge presiding over the prosecution of the husband for bigamy nodded vigorously in agreement when the lawyer representing the family argued that times have changed, that today's working women need occasional breaks from amorous husbands and that children with multiple parents are apt to be happier than those raised in harried and monogamous homes.

But that lawyer did not argue the only point that (at least in Massachusetts) she could not lose: the Constitution's implied right to privacy.

The March 20 Newsweek featured a group of "polygamy activists emerging in the wake of the gay-marriage movement." Although all 50 states and 92 percent of Americans oppose plural marriage, laws forbidding the practice might fall to expanded applications of Lawrence vs. Texas, decided by the Supreme Court three years ago. That 6-3 decision invalidated laws that prohibit the "intimate conduct" of homosexual partners.

If that logic expands into other jurisdictions, laws forbidding plural marriage also must fall. Indeed, if privacy and/or equal protection secures the right of Frank to marry Fred, it must also secure Jim's right to marry Jane and Jan.

Congress can undo the terms that forced monogamy on what surely was an unwilling Utah prior to its admission as a state. And polygamy might be sensible public policy from time to time. For example, Rwanda's Tutsi population -- because of the genocide -- now has seven women for every three men.

But the right to privacy as articulated in Lawrence vs. Texas is a matter of constitutional principle, beyond the reach of democratic majorities. So if our courts apply that principle against laws requiring heterosexual monogamy, would the right to privacy render our federal union itself unconstitutional?

After all, Utah was admitted as a state only on the basis of Supreme Court decisions upholding Congress' power to prohibit polygamy.

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Resolved that the Constitution confers upon Congress sovereign power over the Territories of the United States for their government, and that in the exercise of this power it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery. -- Platform of the Republican Party, 1856

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