A federal judge in Utah has ruled that the state’s law banning polygamy is unconstitutional. If the ruling is upheld on appeal–and how could it not be?–that would have a big impact not only on radical Mormons but on American Muslims. And, of course, anyone else who might like to try that lifestyle. (Think there would be many takers?) [Read more…]
A federal judge has ruled that Utah laws against polygamy are unconstitutional. [Read more…]
Now that gay marriage is legal in many jurisdictions and broadly accepted, activists are taking up the cause of polygamy. The liberal Washington Post religion columnist Lisa Miller is sympathetic:
This week, in one of his first public statements since this past summer’s anti-gay-marriage remarks, Chick-fil-A President Dan Cathy told an Atlanta television reporter that he supports “Biblical families.” This comment immediately gave rise to jokes questioning his familiarity with the Old Testament, where, as any Mormon elder can tell you, patriarchs such as Abraham, Jacob and David all practiced polygamy.
John Witte Jr., however, thinks it isn’t so funny. A scholar of religion and law at Emory University in Atlanta, Witte is working on a lengthy history of polygamy due out next year. He believes that polygamy is the next frontier in marriage and family law. If states are able to dismantle traditional or conventional views of marriage by allowing two men or two women to wed, then why should they not go further and sanction, or at least decriminalize, marriages between one man and several women?
This is the argument that Kody Brown and his wives, the stars of the reality television show “Sister Wives,” are making in a civil suit against the state of Utah. They are claiming that Utah’s anti-polygamy laws violate their privacy and their religious freedom. “The Browns want to be allowed to create a loving family according to the values of their faith,” Jonathan Turley, the family’s lawyer, wrote in an op-ed this summer.
Beneath the sensationalism, there lies a real question. If Americans increasingly value their rights to privacy and liberty above historical social norms, then why should the state not legally approve other unconventional domestic set-ups? In his first chapter, Witte presents the problem this way. “After all,” he writes, “American states today, viewed together, already offer several models of state-sanctioned domestic life for their citizens: straight and gay marriage, contract and covenant marriage, civil union and domestic partnership. Each of these off-the-rack models of domestic life has built-in rights and duties that the parties have to each other and their children and other dependents. And the parties can further tailor these built-in rights and duties through private prenuptial contracts. With so much marital pluralism and private ordering already available, why not add a further option — that of polygamous marriage?”
This is an argument that makes defenders of individual liberties sweat, for few people like to be put in the spot of having to uphold a social taboo. But really. If the purpose of marriage is to preserve personal happiness, protect and raise children, and create social stability through shared property and mutual obligation, then why is polygamy so problematic if it occurs among consenting adults? The two-parent household may be an ideal, but real life is far messier than that. Children are raised all the time by groups of adults: there are exes and steps, adoptive parents and biological, mistresses and wives. Didn’t someone say it takes a village?
Witte is worried about this line of thinking. He sees the “sexual liberty for all” folks increasingly pressing their cases in law reviews, saying “those that oppose polygamy are just like the homophobes and the patriarchs.”
Is there any Biblical reason why polygamy should not be legalized? That is, set aside natural law arguments, what’s best for women, the needs of children, etc., and just focus on the Bible. Clearly, the New Testament demands monogamy for church leaders, but that requirement doesn’t seem to be binding on everyone. And, of course, polygamy was almost the norm in the Old Testament, in particular for leaders of the magnitude of Abraham and King David.
The defining texts for marriage, on the other hand, are those that refer to Adam and Eve, and Christ and the Church, and to “the two” becoming “one flesh.” Those would argue against polygamy. (Jesus doesn’t have more than one bride, contrary to the gnostic manuscripts being circulated, and the applications of this relationship to the vocation of the marriage in Ephesians 5 don’t really work for more than one spouse.)
And yet we cannot say that Jacob was sinning or defying God’s will when he took many wives whose progeny created the Twelve Tribes of Israel, can we? The practice of Christian missionaries when a polygamist converts has been to make him put away all but one of his wives. How can that be a good practice? Doesn’t that do great harm to the wives who are abandoned? And doesn’t this violate the definite Biblical prohibitions against divorce?
If we cannot make a Bible-only case against polygamy, does this mean that extra-Biblical reasoning is necessary, if in this case, also in other moral and legal issues?
Elizabeth Marquardt notes that three different strands are coming together to legalize group marriage: the far left, the far right, and the new reproductive technology:
From the fringy left: Polyamory
Polyamory describes relationships of three or more people — it literally means “many loves.” Polyamorists say they practice “ethical non-monogamy,” or relationships that emphasize open communication, respect, and fair treatment of one another.
The debate about legal recognition of polyamorous relationships is already well underway. A major report issued in 2001 by the Law Commission of Canada asked whether marriages should be “limited to two people.” Its conclusion: probably not. A British law professor wrote in an Oxford-published textbook that the idea that marriage meaning two people is a “traditional” and perhaps outdated way of thinking. Elizabeth Emens of the University of Chicago Law School published a substantial legal defense of polyamory in a legal journal. She suggested that “we view this historical moment, when same-sex couples begin to enter the institution of marriage, as a unique opportunity to question the mandate of compulsory monogamy.”
Mainstream cultural leaders have also hinted at or actively campaigned for polyamory. Roger Rubin, former vice-president of the National Council on Family Relations–one of the main organizations for family therapists and scholars in the United States–believes the debate about same-sex marriage has “set the stage for broader discussion over which relationships should be legally recognized.” The Alternatives to Marriage Project, whose leaders are featured by national news organizations in stories on cohabitation and same-sex marriage, includes polyamory among its important “hot topics” for advocacy. The Unitarian Universalists for Polyamorous Awareness hope to make their faith tradition the first to recognize and bless polyamorous relationships. Meanwhile, a July 2009 Newsweek story estimates that there are more than half a million “open polyamorous families” living in America. Nearly every major city in the U.S. has a polyamory social group of some kind. . . .
From the radical right: Polygamy
Coming from a very different direction, another challenge to the two-person understanding of marriage is resurging–polygamy, a marriage form with deep roots in human history and still in evidence in many parts of the world.
The debut in spring 2006 of HBO’s television series, Big Love, which featured a fictional and in some ways likeable polygamous family in Utah, propelled polygamy to the front pages of American newspapers and put the idea of legalized polygamy “in play” in some surprising quarters. That March, a Newsweek article with the title “Polygamists Unite!” quoted an activist saying, “Polygamy is the next civil rights battle.” “If Heather can have two mommies,” he argued, “she should also be able to have two mommies and a daddy.” That month the New York Times devoted much attention to the subject of polygamy. One economist snickered that polygamy is illegal mainly because it threatens male lawmakers who fear they would not get wives in such a system. In an opinion piece, then-columnist John Tierney argued that “polygamy isn’t necessarily worse than the current American alternative: serial monogamy.” He concluded, “If the specter of legalized polygamy is the best argument against gay marriage, let the wedding bells ring.” . . .
Back home, a pending court case is offering a defense of polygamy, with lead counsel and noted legal scholar Jonathan Turley of George Washington University arguing this summer in the New York Times that the Lawrence vs. Texas Supreme Court decision in 2003 should protect the private choices of polygamists.
From the labs: Three-person reproduction
Another route to legalized group marriage could evolve via new court decisions and expert proposals that recognize group-parenting arrangements. Judges in the U.S. and Canada have already given legal parental status to a sperm donor father whose offspring had two legal mothers — resulting in the first instances ever in which a child has three legal parents. In New Zealand and Australia, commissions have recommended allowing egg and sperm donors to “opt in” as children’s third legal parents. Meanwhile, scientists in the U.K. have received state permission to create embryos that have the DNA of three persons. It will not be long before group marriage proponents ask: How can children with three legal parents be denied the same marriage rights and protections for their families that children with only two parents have?
Do you see any legal obstacles to this, now that the door has been opened to define marriage in any way we want? (What’s best for children and women won’t carry any weight, if recent rulings are a guide. It has to be about “rights.”)
HT: Joe Carter
The revolution in the institution of marriage continues, as the legalization of polygamy is now being taken up by the courts.
Tomorrow [July 13] in Salt Lake City, legal scholar and George Washington University law professor Jonathan Turley will file suit to challenge Utah statutes criminalizing cohabitation and bigamy. The plaintiffs in the suit? Kody Brown and his four wives, stars of the reality show Sister Wives.
Turley is expected to argue for the decriminalization of polygamy by citing Lawrence v. Texas, the 2003 US Supreme Court decision that decriminalized sodomy on the grounds that states should not interfere with the intimate behavior of consenting adults. The ultimate aim of the suit? Overturning the infamous Reynolds decision of 1878 which decried polygamy as a “despotic” “Oriental” practice unsuitable for American society.
I suppose the case for polygamy is stronger than the case for gay marriage, since this is an established practice in many cultures and in many points in history. I suspect the issue may become the religious rights of Muslims, not to mention certain Mormon groups. But if gay marriage is legalized, how can polygamy not be legalized? Or, from a more conservative angle, if marriage is a cultural and religious institution (as opponents of gay marriage argue), how can the state not allow it?