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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