Should Polygamy Be Legal?

November 30, 2009

I confess from the outset that I’m a fan of HBO’s “Big Love”, but I will try not to allow that to influence me in writing this post.  What got me thinking about this subject in the first place is all the recent discussion about gay marriage. See my prior post on that topic. Is it constitutional for the government to be deciding how we choose to lead our private lives, especially if it is in accordance with our religious beliefs? It seems to me that there is at least as strong an argument for multiple partner marriages as there is for same sex marriages. When you practice polygamy in accordance with your religious beliefs, you are (or should) also be accorded additional First Amendment Rights. For some reason, though, this argument seems to be ignored for the most part.  Perhaps that is because polygamy has been publicly linked so often to child abuse that there is the impression that you can’t have one without the other.  ABC News conducted an interview in 2008 with George Washington University law professor Jonathan Turley about this issue. provides some good definitions of the various plural marriage arrangements which I loosely refer to as  “polygamy.”

1.  Polygyny: the marriage of one man with multiple wives.

2. Polyandry: the marriage of one woman with multiple men.

3. Polyamory: An umbrella term that describes a romantic and/or sexual relationship involving multiple partners at the same time. The participants may or may not consider themselves to be married to each other.

Today, polygamy is illegal in all fifty states. Way back in 1878,  the U.S. Supreme Court decided  Reynolds v. United States, which upheld the constitutionality of a law banning polygamy. The opinion is odd in that it emphasizes the importance of religious freedom in the United States, relating in detail the history and reasons for religious freedom encompassed in the First Amendment.  Then, the court places a limit on expressions of that freedom, allowing congress to enact laws preventing actions, taken in the name of religion or not, that “were in violation of social duties or subversive of good order.”  It is hard to imagine a modern court using this language to justify religious repression, but it’s still the law.

The court then briefly relates the history of polygamy in England, where it has  “always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”

This analysis seems anachronistic, if not downright racist, when applied to the United States in the 21st century. Fundamentalist Mormon sects still practice polygamy, and the recent prosecution of  Warren Jeffs brought attention to this issue, and also furthered the perception that polygamy always involves child brides and child abuse.  Sensationalized stories like this don’t help the cause of those who want the right to practice polygamy.  Polygamy is not just confined to the Mormon sects. There is at least a small percentage of American Muslims who  practice polygamy, but they have avoided publicity. This is probably wise.

In 2002 Sarah Gordon published “.The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. This book explores the historical context of the constitutional arguments for and against polygamy.

The United States Supreme Court refused to hear a challenge to a Utah bigamy law in 2007.  This case was brought in the wake of Lawrence v. Texas, the landmark Supreme Court decision which struck down Texas sodomy laws as unconstitutional. The court held that gay adult Texans, like other adults, were free to engage in intimate relations without government interference. This case gave impetus to the movement to legalize same sex marriage.

Apparently the Supreme Court is not yet ready to accord those same rights to Mormans and Muslims.  It seems hard to justify this disparity, especially when taking into account the First Amendment.

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