While most arguments heard in popular media outlets involve general issues of either religious conviction or liberal concepts of equality, the crux of the issue regarding societal and legal acceptance of polygamy, in all its forms, center on two primary points of contention. The first debate centers on how the word marriage should be defined. The second debate is focused on who should and who should not have a legal right to enter into a marriage, and if withholding that right is justifiable in a diverse, liberal, secular democracy. While the final result of the second debate may be largely based on the results of the first debate, the two arguments are so intertwined with each other that they need to be dealt with simultaneously. With an understanding of the history of marriage in general, its history in the United States specifically, and the conflicting arguments regarding plural marriage, it becomes evident that the status quo is unethical and indefensible within the parameters of a liberal society governed by secular laws. The proper alternative is to leave marriage in the hands of religious institutions and officials, and allow civil unions between any number of adults who choose to enter such a union with fully informed consent, with their rights being protected by the state and any benefits granted, based on the state’s interest in children, to only be granted once children are present within the family unit, whether said unit is dyadic or plural in nature.
When it comes to defining marriage, there are three basic competing definitions, with a fourth option that would completely eliminate the concept of marriage as it is generally understood. In the article, “What is Marriage,” published March of 2011 in the Harvard Journal of Law & Public Policy, the three authors provide two working definitions of marriage for the purposes of delineating what they see as the opposing sides in the ongoing same-sex marriage debates. There is the traditionalist definition of marriage which states,
Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it. (246)
There is a revisionist definition used by advocates for same sex marriage that states,
It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (246)
This second definition is, in part, a reaction to the traditionalists’ assertion that expanding the definition of marriage beyond its historically understood meaning, of a union between a husband and wife, will result in marriage being extended not only to same sex couples, but to polygamous, incestuous, and even interspecies relations. The pro-polygamy movement generally uses the revisionist definition above, but does so without limiting the number of those involved in a marriage to two. According to Dr. Brian Schwimmer, professor of anthropology at the University of Manitoba, there are three basic forms polygamy can take: polygyny – “marriage of one male to several females”; polyandry – “marriage of one female with more than one male”; and group marriage – “marriage of several females with several males” (1). The fourth option as detailed by Lenore J. Weitzman, a sociologist and lawyer, suggests that the traditional marriage contract be set aside in favor of individually developed and agreed upon contracts between the parties involved, giving them the authority to determine specifically the guidelines for their union, which the courts would use to settle any disputes upon the dissolution of the agreement, traditionally known as a contested divorce.
Contracts in lieu of marriage would allow for legal relationships not contemplated under the present structure of state-regulated marriage…Contracts in lieu of marriage could also be used to ensure many of the functions that families have performed in situations where legal marriage is impossible: in communes, group marriages, and other family-like units of more than two adults. These contracts would also provide an alternative for homosexual couples wishing to legitimize their relationship. (1249)
The second debate regarding equal rights and equal treatment under the law is just as complex, dealing with normative values of society and the precedence the courts have set in past disputes on the matter. Part of what makes this particular dispute more problematic is that there are rulings that are contradictory in their application. For example, Jonathan Turley, a constitutional scholar at George Washington University, notes that the court’s ruling on the landmark Lawrence v. Texas case contains two conflicting statements. At one point, the court implies that the power to define marriage lies solely with the individual state, but later, the court referred to marriage as a universal right. (Turley) These two statements are mutually exclusive because a right, guaranteed to all citizens, cannot be legally infringed upon by any person or state. For the U.S. Supreme Court to say it is a universal right, while giving the power of regulation to the individual states, sends a troubling message. The message is that the courts will refer to marriage as a universal right because to say it is not would be ill received by citizens who would fear possible infringement by an over-reaching federal government. However, the court has abdicated its responsibility to rule on the matter in a way that would require the status quo be either protected or invalidated. Instead, the court’s actions give de facto power to the states to deal with the issue of marriage, both in terms of definitions and possible enforcement of institutional violations. If marriage were truly considered a universal right, states would not be allowed to regulate marriages in a manner inconsistent with federal laws which guarantee equal protection and equal treatment. Unfortunately, the courts have not defined with any specificity what marriage is or what the specific universal rights are, as they relate to the institution of marriage.
Polygamy is not a new form of marriage in terms of either the Judeo-Christian tradition or American history. The only thing new about polygamy in America is the recent push for acceptance of all forms of polygamy, whether as a religious practice or as an egalitarian, secular choice. Within the last sixty years, polygamy has increasingly been less centered on religious ideology and doctrine, and more in tune with secular, egalitarian principles. There have been several instances in America’s past where polygamy has been practiced with relative conspicuousness. From the Mormons of Utah, who had to legally abolish polygamy as a condition of statehood, through the 1960’s and the start of the Kerista Commune in San Francisco and the Church of All Worlds in Saint Louis, polygamy seems to be not only a constant, but one with growing support among society.
The Judeo-Christian tradition shows implicit support for polygamy in the Old Testament. Consider that King Solomon “had seven hundred wives, princesses, and three hundred concubines” (King James Bible Online, Kings 11:3). Consultation of the New Testament reveals there are no prohibitions against the practice, though when Jesus is asked about marriage, he states in Matthew, “so they are no longer two, but one. What therefore God has joined together, let no man put asunder” (King James Bible Online, Matthew 19:5). Interpretation of this verse led to the belief that marriage is a sanctified union, and further led to the Catholic Church mandating that marriages be solemnized before being considered valid. In 1573, the Catholic Church at the Council of Trent took a formal stance on polygamy by stating, “If any one saith, that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law; let him be anathema” (Trent). According to Charles Kindregan, distinguished professor of law at Suffolk University, the requirement for church solemnization was, in large part, disregarded by many Protestants after the Reformation, though the belief that marriage was “of God” continued, and marriage as a divinely inspired union has been the primary influence on marriage law in the United States. (26) England did not recognize marriage as a civil agreement until passage of the Matrimonial Causes Act of 1857, which took the jurisdiction of marriages away from the canonical courts and placed it with the civil courts.
America was settled by many seeking freedom to practice their religion in ways that weren’t acceptable to the Catholic Church or the Church of England. The idea of marriage as something sanctified by God was still a mainstream concept, though marriage laws would be administered through civil courts, not religious courts. This jurisdictional divide lends strength to the idea that marriage has changed from a religious institution to a civil institution, where the state recognizes marriage in a secular aspect and assumes the authority and responsibility to regulate it. The polygamy debate lay mostly dormant in America until the advent of the Latter Day Saint movement in the 1830’s, and the subsequent migration of Mormons to Utah in 1844.
Mormons practiced polygyny, which is a form of marriage where a man has multiple wives. (Schwimmer) Their practice of polygamy placed Mormon religious beliefs at the center of a debate over the validity of the theory of popular sovereignty at a time when popular sovereignty was being used to justify the continuation of slavery. The Republican platform of 1856 promised, "to prohibit in the territories those twin relics of barbarism: polygamy and slavery" (GOP). The debate came close to causing civil war when then President James Buchanan sent troops to Utah to gain control of the territory. Though little was gained by the President’s action, this event shows how divisive differing beliefs on what marriage is and what it should be are. A few years later, the Federal Government passed the first law outlawing polygamy: the Morrill Anti-Bigamy Act, signed into law by President Lincoln in 1862. The idea of polygamy was so offensive to some that the Morrill Act was found lacking because it required proof that an actual marriage had taken place. Congress remedied that oversight with the Edmunds Act, which further criminalized bigamous cohabitation, removing the necessity for proof of marriage.
Regardless of the federal government’s brief involvement in marriage law as a result of the conflict with the Mormons in the Utah Territory, marriage law in America has primarily been the purview of the individual states. One important exception is the legal stance, supported by the U.S. Supreme Court, of anti-miscegenation to preserve racial purity. According to Kindregan, “In early America, it was commonly accepted that persons of different races could not enter into valid marriages. The protection of racial purity was a fundamental component to the law of marriage” (31). It was not until nearly a hundred years had passed since the Civil War and the earlier dispute with Mormons over marriage that the Supreme Court reversed its prior stance on miscegenation. In 1883 the Supreme Court upheld the constitutionality of Alabama’s anti-miscegenation laws in Pace v. Alabama. Eighty-four years later, in the 1967 ruling on Loving v. Virginia, the court concluded that marriage could consist of a couple of differing races, and further concluded that the states could not deny the right to marry based on race.
American society is still in the middle of a debate over how marriage should be defined. In addition to the debate over the definition of marriage, society is involved in a heated debate over the civil rights issues surrounding it. In early 2011, President Barack Obama made the decision to no longer oppose suits related to section three of the Defense of Marriage Act (DOMA) which was signed into law in 1996 by then President Bill Clinton. Section three of DOMA defines marriage as a union between one man and one woman. President Obama, a constitutional lawyer, based in part on consultations with the Department of Justice, has stated he believes the section is unconstitutional. His belief that it is unconstitutional is his reason for refusing to oppose any challenges to the law which are based on the provisions of section three.
There are three primary contributing factors to the rise of secular polygamy, or polyamory. Arguably, the broadest social change in American culture within the last fifty years has been wrought by the feminist movement, seeking treatment on par with that of men, and seeking to break free from socially, and often legally imposed gender roles. For example, Elizabeth Emens notes in her work titled "Changing name changing: framing rules and the future of marital names” that
The women’s rights movement could be said to have started when Susan B. Anthony started the National Woman Suffrage Association in 1869 with the specific goal of securing for women the right to vote. Over 100 years passed from the beginning of the women’s suffrage movement until married women no longer had to legally change their name to that of their husband’s to be permitted to vote in some places. Sexual culture saw a dramatic change during this period due to many interrelated factors. One influence was the hippie counterculture of the 60s and 70s. Another influence was the new research on human sexuality by Kinsey. The “final straw” may have been the development of the pill, a tool which gave women control over their reproduction. This meant that women, like men, no longer had to worry about accidental pregnancies and the social stigma attached to unwed mothers in those days.
Not only did the fight for equal rights for women result in a better understanding by
society at large of gender roles and how normative values serve to place both men and
women into pre-established social roles, but it forced society to re-evaluate concepts of
equality, fairness, and justice as they related to gender, sex, and power dynamics in intimate
relationships. In 1961 Robert Anson Heinlein published what some have called the bible of
the polyamory movement: Stranger in a Strange Land. Many of Heinlein’s novels challenged
tradition and social custom, especially on the sexual front. Not only did many of his stories deal with families that were part of plural marriages, in several of his books he was even able
to place the taboo of incest in a positive light. A character from his novel Friday stated,
“Geniuses and supergeniuses always make their own rules about sex as on everything else;
they do not accept the monkey customs of their lessers" (Friday). With the popularity of
Stranger in a Strange Land occurring simultaneously with the free love movement and the
feminist fight for equal treatment and sexual liberation, there was a “perfect storm” across
the country that resulted in a major shift away from unchallenged patriarchal societal
structures and expectations. The shift is ongoing and growing even now.
Most recently, both the religious and secular polygamists/polyamorists see an opportunity to push their arguments into the limelight, and once again, force society into a dialogue about what justice means, how fairness should be determined, and how equal should people be when it comes to the law’s treatment of intimate relationships. The opportunity comes in the form of the same-sex marriage debate, where the traditionalists opposed to legalizing same-sex marriage use the argument that if the right to marry is extended to same-sex couples, society will be forced to allow polygamy, incestuous marriages, and marriages between man and man’s best friend. While the fact that the argument is a slippery slope that drops off the precipice to become a reductio ad absurdum may serve to rally support to their side of aisle by playing on the moral foundations of our society, many proponents of plural marriage are more than ready to have the public debate about polygamy and the extent to which the state should be allowed to tell fully informed, consenting adults who they can and cannot form intimate relations with, both in and out of a marital structure. Proponents of polygamy are probably not looking for an immediate change in the laws, but an open dialogue which will eventually lead to decriminalization, legalization and state recognition of plural marriages. This dialogue will be coming on the heels of three recent, major shifts in social tradition and juridical precedence: the fight for racial equality, the fight for gender equality, and the fight for sexual orientation equality.
Polygamy within a secular society that prizes equality is inherently good. Legalizing the practice would allow consenting adults the freedom to enter into relationships where the terms of the relationships are defined by the people involved and not by the state in support of religious tradition. The U.S. Constitution bars the federal government from making any laws that either respect the establishment of religion or prohibit the free practice thereof, which for all practical purposes is what has been done regarding marriage. In legalizing polygamy, it becomes easier for abused women and children in a polygamous family to seek legal protections. The abused would not be afraid of their polygamous practices becoming known in the same way they would if the practice remains illegal.
The legalization of polygamy would be good in that it would remove the hypocrisy inherent in the current legal system. The courts consistently claim the state has a justifiable interest in marriage that stems from the idea that society has a vested interest in how children are raised; promoting the continuation of a civil, stable society. However, the state makes no effort to regulate marriages where the parties to the marriage are not parents, or cannot become parents, or choose to not become parents. Even if the courts were to argue against polygamy on the basis of children and social stability, there is no empirical evidence showing that polygamous families are not as able to provide social stability for children as monogamous families.
Regarding consistency, current laws permit a man to father children with different women and, as long as court ordered child support payments are made, the man is not guilty of a crime. However, if the adults all chose to live together as man and wives, they would all be subject to anti-polygamy laws and risk fines and incarceration, as well as having the state remove the children from the household. This is one of the most evil results possible while polygamy remains a criminal offence. By removing the bar to polygamy, the home life of any children can be determined based solely on the care they receive and the home environment itself, without the social and religious stigma of polygamy being used as a litmus test which assumes an unhealthy environment for children without any proof to support the conclusion. Society, through the courts, seems to be of the belief that a single parent household is a healthier, more stable environment for children than the household with three or more parents.
Polygamous arrangements are much better arrangements for social stability than monogamous arrangements. In a highly mobile society where the traditional extended family is becoming more and more a thing of the past, with the resulting loss in the support network such an arrangement provided for everyone involved, there are three options for society to choose from. Society can, through legislation, attempt to force a renaissance of the traditional extended family, it can allow the continued deterioration of the extended family, or it can allow individuals to enter into agreements that serve to create an “expanded” family, based on the depth of trust and intimacy developed by the people involved. Only the third option promotes ideals of personal liberty, while the first two either serve to intrude on the choices and relationships a consenting adult may enter into or further allow the destabilization of society by not allowing people to develop extended familial support networks, minimizing resources available for child care and for elder care.
Legalizing polygamy makes the legal system more egalitarian, less grounded in patriarchal power dynamics, and discontinues the traditional support of a religious custom through law. Dr. Betty Cogswell writes, regarding the patriarchal tradition of family,
The pervasive influence of the traditional family myth parallels the influence of the myth of male superiority. Male superiority has been so infused into our lives…that some individuals often find themselves behaving in terms of this image while simultaneously advocating gender equality. (393)
Legalizing polygamy also extends to each adult the maximum amount of liberties that do not infringe on any other individual’s liberty. Polygamy, as noted above, also provides a way to buttress the failing support network people once relied on, known as the extended family, by allowing them the opportunity to create an expanded family of close friends and lovers, providing more resources to care for each other.
As has been stated before, current laws are detrimental to polygamous relationships merely because they are polygamous, not because they are harmful to society or to the children involved. It has also been asserted that current marriage laws are de facto laws respecting religion. As evidence, a child was recently removed from her parents, who were part of a polyamorous household, after the child’s grandparents sued for custody on the grounds that the home environment was, according to the bible, immoral. Dr. Geri Weitzman reports in “What Psychology Professionals Should Know About Polyamory,” “No evidence of child abuse or neglect was found, and mental health professionals found that the child was well-adjusted” (13). This incident, and those like it, results from a confluence of problems with society’s current interpretation of marriage and the way in which marriage laws are applied, in contradiction to the Constitution, in a manner both hypocritical and inconsistent. Only by decriminalizing and legalizing polygamous unions in all of its forms (polygyny, polyandry, and polygynandry) can injustices like this be eliminated, or at the very least minimized, with resultant family laws becoming more egalitarian and less based on the myth of the traditional, patriarchal, dyadic, family structure.
After having looked at the issue of marriage, the arguments surrounding the issue of plural marriages, and showing how changing the status quo is the right thing to do, the next step is to address what specific changes need to be made, and how those changes would be most effective. The first thing necessary is to decriminalize the practice of polygamy. This can be accomplished in one of two ways. Anti-polygamy laws can either become generally unenforced through a practice known as desuetude, or the laws can be legislatively repealed from the current legal codes of each jurisdiction in which they are present. The method of desuetude would be the fastest and most cost efficient path, while legislative action would be the most effective and most positive, in that it would require public debate, which ideally would result in majority support for decriminalization that would be acted on by the legislators in the state and federal congressional bodies.
The next step would be to address the arguments posed by marriage traditionalists. The traditionalists are correct that a modern western understanding of marriage is founded on a Judeo-Christian tradition, and based on New Testament scripture, which seems to promote dyadic unions, roles based on sex, and a patriarchal hierarchy. It would be improper to deny those couples who wish to perpetuate that particular doctrinal interpretation that liberty, because it would be discriminatory to their religious beliefs and practices, damaging to understood principles of liberty, and thereby harm society in the process. This is exactly how the debate should be structured in the arena of public opinion. By only allowing the rights supported by biblical doctrine, and denying all others, the state has given its implicit support to a particular interpretation of one specific religious faith.
Because the traditionalists are right about marriage being generally accepted as an undertaking grounded in religious beliefs, there is room for negotiation on terminology. Polygamists who are not supportive of the traditional religious understanding of marriage should apply pressure on the legislatures to stop performing, recognizing and otherwise involving themselves in a religious ceremony. Instead, the support should be for state recognized civil unions based on the fully informed consent of all the parties involved, leaving marriage, a religious ceremony, to the various religious institutions to administer and adjudicate on while operating within the laws of the state. There are a few things that need to happen for this tactic to be successful.
Plural marriage and same-sex marriage advocates need to co-opt a significant portion of the politically conservative population, specifically the more libertarian of the group, and build an alliance based on keeping government and laws out of the bedroom in the interests of personal liberty. Same-sex marriage advocates need to take a step back from their prior arguments revolving around marriage rights, accept the religious connotations the word comes with, and advocate for state sanctioned civil unions, with the understanding that “separate but equal” is acceptable since the law would treat the unions in a manner equal to how traditional marriage has been treated, and separate only in how the union is viewed by society in terms of religiosity. Because marriage is generally defined with religious aspects, it should then be removed from all legislation and replaced with something representative of a generic, secular union or partnership.
The term partnership is apropos considering the plethora of laws already codified that deal with business partnerships. Business partnerships between two, five, or twelve have not been found to be too difficult for the state to adjudicate when there are disagreements over the dissolution of the arrangement. The civil unions should be contractually based, with the involved parties agreeing to explicit obligations and responsibilities, and the contract should be a living document in that the parties should be allowed to change, upon mutual agreement, the terms of the contract. These contracts can be dealt with in the civil courts by using existing business laws as a template for dealing with unions between two or more people in a family unit, and the traditional patriarchal roles based on sex, supported through legal precedent, need to be completely dismissed and the precedent disregarded. This removes a major problem with the current marriage contract, which Lenore Weitzman addressed in the California Law Review with her observation that it “is unlike most contracts: its provisions are unwritten, its penalties are unspecified, and the terms of the contract are typically unknown to the ‘contracting’ parties” (1170).
These efforts may or may not successfully result in the decriminalization, legalization, and state recognition of plural marriages in the near future. However it is this author’s belief that it is only a matter of time before polygamists see their rights recognized and protected. While the argument presented here is slightly different from most others, it is grounded in the same ethical standards as those of Andrew March, professor of political science at Yale University as evidenced by his claim, fitting as a concluding statement and indicative of the ideal end result of this particular debate, that
the most justifiable policy on liberal grounds is not the institution of “marriage” increasingly open to new constituent relationships, but rather a universal “civil union” status which fulfills the social and moral aims behind recognizing and subsidizing the family but is entirely neutral to the gender and to the numbers of the partners. (11)
The issue of what marriage is, how it should be defined, and who should or should not be allowed to enjoy its benefits, is not an easy topic to deal with. Traditions, history, religious beliefs, and cultural inculcation make it difficult to objectively examine an institution as long lived as marriage has been, and hypothesize radically different forms it might take if society and the courts decide that it is time to re-evaluate the social paradigms regarding marriage. There is no scientific data that legal, social, and psychological professionals can look at to see what outcomes may result with a broad change in how marriage is defined and regulated. However, this lack of data is not a compelling reason to not make changes if society determines making a change is the right thing to do in the interest of justice. Society will adapt to change, as it always has before, or it will rescind any changes it finds too burdensome to maintain.
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Weitzman, G, Davidson, J, Phillips, R., Fleckenstein, J.R., and Morotti-Meeker, C. “What Psychology Professionals Should Know about Polyamory.” National Coalition for Sexual Freedom, Inc. (2009). Web 23 February 2011.