THINKING ABOUT PLURAL MARRIAGE

Jerry Harkins

Following the Supreme Court’s recognition that gay people have the same right to marry as straights, a number of commentators have remarked that the same logic might apply to those wanting multiple wives (or, more rarely, husbands).  Indeed it may.  The heart of the Court’s opinion as expressed by Justice Kennedy is in its last three sentences which speak of the petitioners’ goals.  “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”  In dissent, Chief Justice Roberts wrote, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”  He concedes that there may be other factors that would militate against polygamy [1] but they are not to be found in the majority opinion.  Of course, there is a very good reason for their absence;  the case at hand had nothing to do with polygamy.  In addition to this red herring, the Chief Justice was also begging the question.  He relies on the unstated assumption that plural marriage will be considered an unthinkable degeneracy.  No acceptable logic could be raised in its defense and, therefore, it is unnecessary for him to explain why it is degenerate.  This is a deeply engrained assumption in American society but is by no means universal which is a good thing because it is also not true.

Plural marriage is an accepted practice in more than fifty countries, mainly those with Muslim majorities.  It is much rarer in the non-Muslim world although there have been and are pockets of it in unexpected places.  In Ireland, for example, until the seventeenth century, Brehon law permitted multiple marriage although with strong protections for the first wife.  Even today, in many societies high status men are allowed and even encouraged, to take multiple mistresses or concubines.  Almost all British monarchs have done so.  Edward VII who reigned from 1901 to 1917 was a notorious philanderer although usually he was slightly more discrete about it than his predecessors.  His great grandson, Prince Charles, the incumbent Prince of Wales, is less prolific but also less discrete.  King Louis XIV of France, the Sun King, was a devout Catholic who nonetheless had nineteen mistresses.  His successor and great grandson, Louis XV (Louis the Beloved) had fewer but among them were the  Mesdames Pompadour and Du Barry and the lovely Irish redhead Marie-Louise O’Murphy who posed fetchingly naked for Francois Boucher. The reason usually given for this playfulness among a class of men not noted for their humor was that official marriages were political or economic unions not love matches.  Perhaps also there is a bit of the Sun King’s conviction that L'Etat c'est moi.

In America’s live-and-let-live society, we seem to be making our way toward a more broadly permissive consensus.  Most of us probably believe that the state has no business unduly burdening freedom of association.  The problem seems to be that our experience with polygyny is rife with forced marriages often involving poorly educated young women.  Prosecutions of polygamists however are typically based on other crimes such as statutory rape and incest. [2]  For example, Warren Jeffs, Prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, is said to have had 78 wives, 24 of whom were 16 or younger.  He is currently serving a life sentence in Texas for two counts of sexual assault involving two children, one a nephew the other a niece.  It is not clear from press reports whether he thought of the victims as spouses (or for that matter as victims).

As soon as the Supreme Court said in Lawrence v. Texas (2003) that anti-sodomy laws violate the constitutional right to privacy, a suit was brought in Utah arguing that the same logic should apply to polygamy. U.S. District Judge Ted Stewart rejected the argument that the state's ban on polygamy violates constitutional rights of religion and privacy, saying the state has an interest in protecting monogamous marriage. "Contrary to plaintiffs' assertion, the laws in question here do not preclude their private sexual conduct," Stewart said. "They do preclude the state of Utah from recognizing the marriage ... as a valid marriage under the laws of the state of Utah."  This is a weak argument in that it does not address the claim to religious protection and does not specify the state’s interest in protecting monogamy.  Of course Judge Stewart did not have to address these issues because the plaintiffs based their case on the absurd proposition that Utah was outlawing private sexual behavior when it was really refusing to recognize polygamous relationships as lawful marriage.  Still, in light of Obergefell v. Hodges, society must now confront those issues head-on.

The First Amendment reads in its relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Fourteenth Amendment in its relevant part extends this ban to the states saying, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Together, these prohibitions create a strong protection for religion in all its aspects.  But these are not absolute.  Our history is replete with legal challenges to a wide variety of state and federal actions said to violate the Constitution and case law includes many decisions involving logic that is meticulous.  As I have written elsewhere:

Do the children of Jehovah’s Witnesses have to salute the flag during public school morning exercises?  (No.)  May Quakers refuse alternative service in lieu of the military draft? (No.)   De neo-Nazis have the right to parade through the streets of Skokie, Illinois, a largely Jewish suburb of Chicago with many Holocaust survivors? (Yes.)  May a state ban the showing of a film deemed sacrilegious by the National Legion of Decency?  (No.)  More recently, may a private company refuse to provide its employees with federally mandated benefits that offend the owner’s religious beliefs?  (Yes.)  Should American currency refer to God?  Should religious institutions be tax exempt?  May states erect monuments to the ten commandments?  May towns allow crèches in public spaces?  Can Arizona require a loyalty oath invoking “So help me God” as a condition of receiving a high school diploma?  May public high school students pray in public before a football game?  Did the United States and Canada have the right to suppress the Native American ceremony of the potlatch festival or the sun dance because both were considered pagan and uncivilized?  What is the difference between allowing members of the Native American Church to use peyote for sacramental purposes but prohibiting members of The Religion of Jesus to use marijuana?

So, does the First Amendment protect fundamentalist Mormons who wish to practice polygamy among consenting adults?  If not, what public interest supercedes the polygamists freedom of religion?  If so, would governments be required to recognize such marriages for purposes such as taxation, inheritance, liability and the like?

The judicial analysis of polygamy in the United States, begins and virtually ends with Reynolds v. United States, 98 US 145 (1878).  George Reynolds, a Mormon and a bigamist, was voluntarily put forth as a sacrificial lamb by the Church to test a federal law against polygamy which it believed violated its religious freedom.  Speaking for a unanimous court, Chief Justice Waite disagreed:

…we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.

This is another weak argument.  First, the court should have learned from the Dred Scott decision (Dred Scott v. Sandford, 60 U.S. 393, 1857) that the mere fact that a legal principle had always been in effect is not decisive as to the question of whether it should continue to be enforced.  Until early in the nineteenth century slavery itself had always been considered perfectly appropriate in most parts of the world.  Second, the question of polygamy is important enough to warrant more than the mere assertion that society is built on a single form of marriage.  Given that polygamy is openly encouraged in the Old Testament and in modern Muslim societies without apparent ill effect, any assertion to the contrary cries out for specifics.

It is hard to see how a law prohibiting polygamy among consenting adults could survive a constitutional challenge today.  Framed in a First Amendment context, today’s Supreme Court might reject such a law unanimously.  The liberals would weigh the harm done to religion against the vague assertion of historical precedent.  The conservatives might see in such a law an unwarranted intrusion of government into private behavior.  Framed any other way, the outcome is less predictable but could flow from the same logic.  The actual harm done to consenting adults might be seen as a possible outcome but not severe.  Should a church be allowed to solemnize polygamous unions and the state refuse to do so, the resulting situation would be not unlike that of thousands of relationships where men keep one or more mistresses. [3] But as long as all parties take good care of all children, pay all taxes and demand no special privileges, the question would come down to a balancing of incommensurables and the outcome is not obvious.

What is obvious, though, is that plural marriage will never be a dominant issue in America the way gay marriage has been.  Americans place a high value on personal fulfillment and it is hard to imagine many of us opting for a life of communal intimacy.  Even among the early Mormons, plural marriage was a minority choice in spite of the fact that the leadership promoted it as the way of perfection. [4] When the Church felt it was time to change, it managed the transition in a careful, wise and compassionate manner that achieved the goal quickly with minimum disruption to the way of life of most of those affected.  There is, however, a tiny remnant of true believers and, perhaps, another small community of people who embrace polygamy for less than religious reasons.  Small as these groups are, they merit consideration as we navigate through the questions raised by changing mores and attitudes.

Notes

1.  As used in this essay, polygamy refers to the practice of having more than one spouse, polygyny refers to situations where one man has multiple wives, and polyandry refers to one woman having multiple husbands.  It is assumed that a marriage (or any other sexual relationship) that is not consensual cannot enjoy the protection of civil law.  A distinction is also made which excludes any such relationships which are less than fully consenual.  Finally, it should be noted that the ideology and practice of free love is an historical reality.  Unlike polygamy, adherents have usually rejected marriage entirely but, in communities like Oneida founded in 1848 by John Humphrey Noyes, there are significant parallels.

2.  I am aware that many of the same arguments advanced here could apply to incestuous marriages as easily as they do to polygamous ones.  Indeed, some laws against incest (e.g., against marriage among close in-laws) are based on myth rather than biology.  The problem is that most incest today involves children, usually girls, and close male relatives and is considered a particularly heinous form of pedophilia even if it appears to be consensual.  From a moral point of view, any sexual contact lacking the informed consent of both parties is a species of rape and the state is entitled to set an age below which informed consent is not possible.

3. I realize this is a fanciful role reversal in which the state would be taking what is essentially a moral position and the church the utilitarian one.

4.  Practical demographics required this.  If every Mormon man had two wives, they would need twice as many women as men.  If every Mormon man had 78 wives…well you can see the problem.