Legal Polygamy? Not Likely.

sister-wives-192x108There’s a piece of deliberately inflammatory click-bait in USA Today making what author Steve Deace calls, “A modest proposal for polygamy.” The column uses a whole lot of deeply provocative language to suggest that marriage equality proponents are being bigots by only considering expanding marriage to include same-sex couples, but not larger groupings of romantic partners such as those seen on the reality show Sister Wives:

How dare those seeking to overturn the Defense of Marriage Act signed by President Clinton, or Proposition 8 ratified by the people of California, stop at just redefining marriage to include two consenting adults of the same gender. Why do these people believe they have the authority to draw a moralistic line against any consenting adults, and thus force their moral standard upon the rest of us?

The whole thing appears designed to elicit a response of “Yeah! Why not polygamy? Gay people are prejudiced too!” from people naturally inclined toward anti-gay sentiment. What it doesn’t do is examine the legal construct of the civil marriage contract and why there are legitimate reasons against opening it to more than two parties.

I wrote about this at my blog a while back. Here are my thoughts on the matter:

The other question that Sister Wives always raises is why is polygamy illegal? And why does someone like me, who is a supporter of same-sex marriage, not want to open the door to making polygamy legal? I mean, assuming that the people involved in the marriage are all competent adults, what is wrong with them loving each other in whatever configuration works for them? The answer: nothing. But that doesn’t mean it should have the same legal standing as monogamist marriage.

I have no problem with polyamory, or the practice of being involved with more than one person at a time. Well, I’d have a problem with it for me because I’m not into that kind of thing, but if it floats your boat, rock on. Just don’t do it in the streets and scare the horses, ‘mkay? However, I don’t see a place in the legal framework of marriage to accommodate recognizing plural marriage. It can be acceptable socially, even sanctified by particular denominations, but the legal construct of marriage is between two people. Why only two? Because the line has to be drawn somewhere and we, as a society, agreed on two a long time ago.

Marriage is a contract recognized by all US governmental entities. The civil aspects of marriage bring with it certain privileges such as hospital visitation rights, shared property and inheritance laws, and shared entitlement benefits such as Social Security survivor benefits. The contract is written to apply to two individuals. There’s no reason on earth that the gender, race, ability, or religion of the individuals should matter to the state, which is why miscegenation laws and prohibitions on same-sex couples marrying are stupid. But there is a larger social issue involved in adding more individuals to the contract. For example, if Kody [the husband on Sister Wives] fell off his motorcycle and smashed his helmet-less head and died (and what kind of dad rides a motorcycle without  helmet? Idiot.), should all four of his wives be entitled to full survivor benefits from Social Security? Or would they have to split the payments four ways? You might say they should split it but that would open the door to religious discrimination claims against the government for not recognizing all the marriages equally. And what about power of attorney and medical proxy decision? Would hospitals have to accept consensus decisions in cases like that? And how would they proceed in the event that one spouse could not be reached? I know that sort of thing happens in families now but we all know that adds to the complications at treatment.

Like I say, setting the maximum number of participants in a marriage at two is arbitrary. Someone came up with that one day and the entire legal framework for marriage grew up around that idea. To alter it now would be complicated and controversial. And, given that there’s not a great need to alter it to accommodate polyamorous families, I see no need to even raise the notion. I also don’t see the need for laws like the one in Utah that ban not only legally recognized polygamous marriage but also ban extra-martial relationships like the ones the people on Sister Wives have where they do their own thing and don’t expect the government to recognize it. As long as everyone is an adult and no coercion is going on, eh. Fine by me. And it can make for some good television.

Steve Dease is free to try to equate refusal to expand marriage law to more than one spouse to withholding civil two-party marriage rights from competent pairs of adults,  but he’s making a specious argument. Marriage equality allows more people to enter marriage contracts under the laws as they stand. Expanding marriage to larger groups would require a revision of a large swath of our legal framework with no real demand to do so. It’s a false equivalency. It might make for a viral column but it’s not a good argument.

Image via TLC

  • I don’t know, Rebekah. I’d say “because we all agreed so a long time ago,” and “it’s too complicated” are rather specious arguments themselves. We all agreed homosexuality was immoral and should be illegal a long time ago, too. Then we (mostly) changed our minds.

    And it’s too complicated? It was pretty complicated abolishing slavery. As in blood-shedding, nation-dividing, war-spurring complex, but I don’t know many people who think tackling that complexity was in vain. By comparison an overhaul of the social net to better accommodate plural marriages looks like a walk in the park with a picnic basket.

    • ANONYMOUS

      Diana Prichard April 1, 2013 at 6:08 pm #
      I don’t know, Rebekah. I’d say “because we all agreed so a long time ago,” and “it’s too complicated” are rather specious arguments themselves. We all agreed homosexuality was immoral and should be illegal a long time ago, too. Then we (mostly) changed our minds.

      And it’s too complicated? It was pretty complicated abolishing slavery. As in blood-shedding, nation-dividing, war-spurring complex, but I don’t know many people who think tackling that complexity was in vain. By comparison an overhaul of the social net to better accommodate plural marriages looks like a walk in the park with a picnic basket.

  • Well, if we are to create a framework for legally recognizing plural marriage, where are the limits? How many spouses should a person have? Would it be unlimited? Or would we draw a line somewhere?

    And how much need is there to extend marriage benefits into plural relationships? Are they common enough to merit a national movement? Homosexuality exists in 10% of the human population. How many people in the US are engaged in plural marriage? There doesn’t seem to be a true window of opportunity/need arising. I think Steve Dease (the author of the original column) was trying to provoke the old argument of “What’s next? Bestiality? Harems?” He seems to be a shock jock and I strongly suspect thing he said was sincere.

  • OK, did some number crunching:

    The US population is estimated at 313,000,000 (http://quickfacts.census.gov/qfd/states/00000.html).

    The homosexual population is estimated to be 3.4% of the US population – so 10,000,000 people. (http://www.usatoday.com/story/news/nation/2012/10/18/adults-lesbian-gay-bisexual/1642203/).

    The number 0f Fundamentalist LDS Church (the primary proponent of polygamy in the US) members is estimated at 60,000 or .0001% of the US population and only half of those are practicing polygamy. (http://en.wikipedia.org/wiki/Mormon_fundamentalism)

    So. I stand by my argument that there is no need to revamp our social safety net to accommodate such a small percentage of the population. Revamping marriage laws to suit a group smaller than the total population of the city of Lynchburg, Virginia does not seem to be a good use of public resources.

    Interestingly, slaves made up 13% of the population in 1860. A far larger interest group than either homosexuals or polygamists. (http://www.civil-war.net/census.asp?census=Total)

    • The point isn’t whether or not there are a significant number of polygamists, or whether or not Mr. Deace is a shock jock, but that any arbitrary line drawn under the premise of “equality” is hypocritical because a line, by its very nature, divides. When you give benefits to the populations on one side of that line and deny them to those on the other, whether there are two or two million people being denied, it’s still inequality. The point, is that the fundamental argument exposes further inequalities at work in our social and governmental structure that, if we’re going there, we should consider addressing as well.

      I don’t think you actually believe it was any less wrong to deny gay people the federal benefits of marriage when we thought they were far fewer in numbers, nor that slavery was perfectly acceptable until the slave population hit a certain percent of the country’s overall population.

      • So your problem is with the term “marriage equality” because it excludes polygamy?

        What I am saying is that, from a policy making perspective, remediating the law to accept polygamy is unnecessary. My personal moral compunctions about the practice are minimal; I don’t really care about other people’s marriages and see nothing wrong with polyamory. I don’t think it should be criminal and if religious institutions choose to sanctify it, that’s fine. However, as a policy matter, it doesn’t rank. Major legal remedies are necessary when there is a flaw in a system than harms a large swath of the population. In the case of slavery, 13% of the US population was being systematically abridged of human rights. In the case of same-sex unions, 10 million people are being denied access to a civil contract that confers major social benefits. In other cases, such as the passage of the 19th Amendment, more than half of the population (women) were being denied a fundamental right of citizenship. The problems, the injustices, were large and were being inflicted due to an inborn trait. There was never a crossroads where slaves, gay people, women stood and made a decisions that would result in them being outside the mainstream. They didn’t have the choice to participate in all aspects of public life and walked away from them. Public benefits were denied them on the basis of what they are.

        The polygamous population is not statistically significant. Their numbers are small and they are not being denied full access to civic life. Moreover, people participating in polygamous relationships are doing so by choice. They stood at a crossroads and decided a personal principle was more important to them than the social benefits conferred by marriage contracts. They are disqualified from those benefits because of a choice they made. Much as a couple who opts to live together without being married does. Laws should be changed to prevent persecution of families that choose polyamory but I don’t think entitlement reform to accommodate them is necessary.

        As I research this more, I find that the Supreme Court weighed in on this in 1878: “The Court recognized that under the First Amendment, the Congress cannot pass a law that prohibits the free exercise of religion. However it argued that the law prohibiting bigamy did not meet that standard. The fact that a person could only be married to one person had existed since the times of King James I of England in English law, upon which United States law was based.

        The Court investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which he wrote that there was a distinction between religious belief and action that flowed from religious belief. The former “lies solely between man and his God,” therefore “the legislative powers of the government reach actions only, and not opinions.” The court considered that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” The Court believed the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action.”

        I expect that this is considered settled law at this point though who’s to say if the SCOTUS would revisit it. If they legalized it, I wouldn’t protest. Like I say, I don’t care. And again, I don’t think plural marriage should be criminal. Live and love as you wish. I just don’t personally see it as an issue that requires the level of remedy that expanding current law would require.

      • ANONYMOUS

        Diana Prichard April 1, 2013 at 10:02 pm #
        The point isn’t whether or not there are a significant number of polygamists, or whether or not Mr. Deace is a shock jock, but that any arbitrary line drawn under the premise of “equality” is hypocritical because a line, by its very nature, divides. When you give benefits to the populations on one side of that line and deny them to those on the other, whether there are two or two million people being denied, it’s still inequality. The point, is that the fundamental argument exposes further inequalities at work in our social and governmental structure that, if we’re going there, we should consider addressing as well.

        I don’t think you actually believe it was any less wrong to deny gay people the federal benefits of marriage when we thought they were far fewer in numbers, nor that slavery was perfectly acceptable until the slave population hit a certain percent of the country’s overall population.

  • Now – and no I really can’t let this go, it’s REALLY interesting topic – there is a case of legal polygamy that neither of us have made yet. And it’s more closely related to legalizing pot than to legalizing same sex unions. If polygamy were legal, then there’s a chance it could be better policed and the abuses such as those committed by Warren Jeffs would become obsolete. The idea of saving 14 year old girls from being raped by old men is appealing.

  • Katie

    Just curious, has anyone read Jonathon Swift’s “A Modest Proposal”? It seems to me that’s what the author of the USA Today piece was aiming for. However, as large numbers of people have taken him seriously. discussion is always good.

    To the vast majority of people who are anti-gay marriage, what the mean is that they are anti- religious people having to conduct ceremonies that are against their religious beliefs. The great fear is that a gay person’s marriage will supersede the religious person’s freedom of religion, and that the government will use this as an opportunity to bring religions to heel (as Obama did with his health care law requiring catholic institutions to provide birth control, against the tenets of their religion).

    I think the whole issue could be resolved much quicker if the pro-marriage folks would go out and tell the anti-marriage folks that their personal rights would not be infringed. Churches choosing to perform same-sex marriages would do so, and churches choosing NOT to perform same-sex marriages would not be sued or criminally charged for their choice. Until that issue is settled, the pro-marriage people will always have a fight on their hands, from people afraid for their own rights.

    As for polygamy, I don’t see it happening either… but who knows? There will always be people who feel oppressed. If the polygamists gather enough followers, and decide there’s a tax benefit to being legally married to many people (though, under the current tax code, there isn’t), there could be another fight. And gay marriage would have set the precedent.

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