Self-styled Montana polygamist Nathan Collier poses with his wives Christine (R) and Vicki in this undated handout photo courtesy of Collier. Collier, 46, said his bid to make his marriage to his second wife “legitimate” was influenced by the U.S. Supreme Court decision last week that legalized same-sex marriages in the United States. (Nathan Collier/Handout via Reuters)
The Supreme Court’s decision in June that legalized same-sex marriage across the country has unleashed a renewed debate over polygamy, leaving some to wonder why marriage should be considered between just two persons.
The first legal challenge involving polygamy came last week after a man from Montana said the Supreme Court’s decision inspired him to apply for a marriage license so he can legally marry a second woman. Nathan Collier, who was featured on the reality television show “Sister Wives,” said he will sue the state if it denies him the right to enter into a plural marriage.
“It’s about marriage equality,” Collier told the Associated Press. “You can’t have this without polygamy.” A county civil litigator Kevin Gillen said he was reviewing Montana’s bigamy laws and expected to send a formal response to Collier by this week.
Chief Justice John G. Roberts’s dissenting opinion raised the question of whether the court’s rationale could be used to legalize plural marriage down the road.
“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”
Some are now using Roberts’s arguments to revisit the idea of legalized polygamy.
“It’s time to legalize polygamy,” writer Fredrik Deboer declared on the day of the Supreme Court’s decision, arguing that “the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need.” His essay provoked a series of responses, including one from Brookings Institute’s Jonathan Rauch, who defends gay marriage but not polygamy. “It’s no coincidence that almost no liberal democracy allows polygamy,” Rauch wrote.
Jonathan Turley, a law professor at George Washington University, wrote that the rationale behind the Supreme Court’s decision could cause some to reconsider polyamorous families, in which more than two people are in a marriage-like union. In an opinion piece for The Washington Post, Turley pointed to what he described as Supreme Court Justice Anthony M. Kennedy’s finding of “a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the ‘dignity’ of marriage.”
“What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, ‘the highest ideals of love, fidelity, devotion, sacrifice, and family’?” Turley wrote. “The justice does not specify.”
Kennedy wrote in the majority opinion that the discrimination against same-sex couples is unconstitutional because it’s linked to prejudice. On the other hand, Ilya Somin, a law professor at George Mason University School of Law, said it’s difficult to identify the sort of prejudice against polygamous families that Kennedy cited as motivating unconstitutional prohibitions against same-sex marriage.
“With polygamy, it’s much tougher to find a group that would be sympathetic to the public where this group would suffer greatly if we didn’t have polygamy available,” Somin said. “The road to success for polygamy will be a much tougher one than same-sex marriage.”
Polygamy’s few supporters argue the practice can’t be popularized yet because there isn’t a public face for it since the practice of getting into a plural marriage is illegal. Right now, the arguments are being made on a more academic or legal level than at a grassroots activism level.
Caught between those on both sides of a political spectrum who argue the state should allow consenting adults to marry whomever they please, polygamists have not seen much mainstream support historically. Support has increased from 5 percent in 2006 to 16 percent today, according to Gallup. The biggest one-year jump in public approval came in 2011, after TLC’s “Sister Wives” about a polygamist family first aired.
Although some Mormons practiced polygamy in the 19th century, the Church of Jesus Christ of Latter-day Saints has banned the practice since 1890. Some Muslims in the United States are quietly in plural marriages.
A federal judge struck down parts of Utah’s anti-polygamy law in 2013, saying the law violated the “Sister Wives” family’s right to privacy and religious freedom. The state’s appeal of the ruling is pending in the U.S. Court of Appeals for the 10th Circuit.
Because the majority opinion doesn’t address why same-sex marriage should be limited to two individuals, polygamy has returned to the spotlight, said Eugene Volokh, a professor at the University of California at Los Angeles’s school of law and the namesake blogger at The Volokh Conspiracy.
If the opinion argued that the opposite-sex-only marriage rule was simply irrational, one could argue that not recognizing polygamy would be rational: recognizing polygamy would impose extra burdens on the government because of the questions raised about insurance coverage, splitting property and other issues.
“I think the argument for requiring the government to recognize polygamous marriage isn’t ridiculous, but I doubt that the court will buy it,” Volokh said. “The policy arguments against polygamous marriages are pretty strong.”
Six Supreme Court decisions have upheld bans on polygamy and public support for polygamy remains low, so it’s unlikely the courts will change the laws anytime soon, said John Witte Jr. a law professor at Emory University who recently published “The Western Case for Monogamy over Polygamy.”
Opposition to polygamy has focused on the potential harm directed toward women and children, because studies have found correlations to abuse and other problems. But proponents historically saw plural marriage as a social welfare system, a defense against sexual abuse and possibly a means of increasing the opportunity for women to marry in times of war, Witte said. Today, arguments in favor of polygamy focus more on sexual autonomy and individual choice.
“Because the definition of marriage or the form of marriage has changed and we’re open to constitutional change, it’s inevitable for this to be contested,” Witte said. “I wouldn’t be surprised if the issue of polygamy gains momentum, but I would be surprised if the court’s opinion changes in my lifetime.”
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Recently, Tony Perkins of the Family Research Council reintroduced a tired refrain: Legalized gay marriage could lead to other legal forms of marriage disaster, such as polygamy. Rick Santorum, Bill O’Reilly, and other social conservatives have made similar claims. It’s hardly a new prediction—we’ve been hearing it for years. Gay marriage is a slippery slope! A gateway drug! If we legalize it, then what’s next? Legalized polygamy?
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Yes, really. While the Supreme Court and the rest of us are all focused on the human right of marriage equality, let’s not forget that the fight doesn’t end with same-sex marriage. We need to legalize polygamy, too. Legalized polygamy in the United States is the constitutional, feminist, and sex-positive choice. More importantly, it would actually help protect, empower, and strengthen women, children, and families.
For decades, the prevailing logic has been that polygamy hurts women and children. That makes sense, since in contemporary American practice that is often the case. In many Fundamentalist Latter-day Saints polygamous communities, for example, women and underage girls are forced into polygamous unions against their will. Some boys, who represent the surplus of males, are brutally thrown out of their homes and driven into homelessness and poverty at very young ages. All of these stories are tragic, and the criminals involved should be prosecuted to the fullest extent of the law. (That goes without saying, I hope.)
But legalizing consensual adult polygamy wouldn’t legalize rape or child abuse. In fact, it would make those crimes easier to combat.
Right now, all polygamous families, including the healthy, responsible ones, are driven into hiding (notwithstanding the openly polygamous Brown family on TLC’s Sister Wives, that is). In the resulting isolation, crime and abuse can flourish unimpeded. Children in polygamous communities are taught to fear the police and are not likely to report an abusive neighbor if they suspect their own parents might be caught up in a subsequent criminal investigation. In a United States with legalized polygamy, responsible plural families could emerge from the shadows—making it easier for authorities to zero in on the criminals who remain there.
Many people argue that there is no such thing as a “healthy, responsible” polygamous family, particularly for the children born into one. “Children are harmed because they are often set in perennial rivalry with other children and mothers for the affection and attention of the family patriarch,” argued John Witte Jr. in the Washington Post. “Men with lots of children and wives are spread too thin,” agreed Libby Copeland in Slate. The earnestness of these arguments is touching but idealistic. Men in monogamous marriages can’t be spread too thin? Children in monogamous families don’t rival each other for the attentions of their parents? Two-parent families are not the reality for millions of American children. Divorce, remarriage, surrogate parents, extended relatives, and other diverse family arrangements mean families already come in all sizes—why not recognize that legally?
It’s also hard to argue with the constitutional freedom of religious expression that legalized polygamy would preserve. Most polygamous families are motivated by religious faith, such as fundamentalist Mormonism or Islam, and as long as all parties involved are adults, legally able to sign marriage contracts, there is no constitutional reason why they shouldn’t be able to express that faith in their marriages. Legalized polygamous marriage would also be good for immigrant families, some of whom have legally polygamous marriages in their home countries that get ripped apart during the immigration process. (It’s impossible to estimate exactly how many polygamous families live here, since they live their religious and sexual identities in secret. Academics suggest there are 50,000 to 100,000 people engaged in Muslim polygamy in the U.S., and there are thousands of fundamentalist Mormon polygamist families as well.)
Finally, prohibiting polygamy on “feminist” grounds—that these marriages are inherently degrading to the women involved—is misguided. The case for polygamy is, in fact, a feminist one and shows women the respect we deserve. Here’s the thing: As women, we really can make our own choices. We just might choose things people don’t like. If a woman wants to marry a man, that’s great. If she wants to marry another woman, that’s great too. If she wants to marry a hipster, well—I suppose that’s the price of freedom.
And if she wants to marry a man with three other wives, that’s her damn choice.
We have a tendency to dismiss or marginalize people we don’t understand. We see women in polygamous marriages and assume they are victims. “They grew up in an unhealthy environment,” we say. “They didn’t really choose polygamy; they were just born into it.” Without question, that is sometimes true. But it’s also true of many (too many) monogamous marriages. Plenty of women, polygamous or otherwise, are born into unhealthy environments that they repeat later in life. There’s no difference. All marriages deserve access to the support and resources they need to build happy, healthy lives, regardless of how many partners are involved. Arguments about whether a woman’s consensual sexual and romantic choices are “healthy” should have no bearing on the legal process. And while polygamy remains illegal, women who choose this lifestyle don’t have access to the protections and benefits that legal marriage provides.
As a feminist, it’s easy and intuitive to support women who choose education, independence, and careers. It’s not as intuitive to support women who choose values and lifestyles that seem outdated or even sexist, but those women deserve our respect just as much as any others. It’s condescending, not supportive, to minimize them as mere “victims” without considering the possibility that some of them have simply made a different choice.
The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less “correct” than marriage among three (or four, or six) consenting adults. Though polygamists are a minority—a tiny minority, in fact—freedom has no value unless it extends to even the smallest and most marginalized groups among us. So let’s fight for marriage equality until it extends to every same-sex couple in the United States—and then let’s keep fighting. We’re not done yet.