Does Polygamy Have a Legal Future in the U.S.?

Having written previously about polyamory (maintaining multiple romantic relationships) and polygamy (well, really, polygyny — having more than one wife at at time,) I have been intensely interested in the on-going case in Texas, in which more than 400 children of polygamists were put into temporary state custody following allegations of physical and sexual abuse at the Yearning for Zion compound near Eldorado. The group in question is the FLDS (Fundamentalist Church of Jesus Christ of Latter-day Saints), one of a number of polygamy-practicing sects that broke away from the mainstream Mormon church when that church banned polygamy in 1890. If you want the latest and best coverage of the FLDS raid and subsequent child-custody case, check out the Salt Lake Tribune’s coverage and the blog of journalist Brooke Adams, who covers the polygamy beat for the paper. (And for a sympathetic insider’s point of view, check out the blog, Introspections of a Plural Wife, which is also keeping close tabs on the story. UPDATE: Scott, a ReligionWriter.com reader, points to this helpful primer on the FLDS issue and polygamy in The Week.)

While the FLDS drama has put polygamy on the front pages, what amazes me most about the issue are polygamists who live “normal” lives — and blog about it. I recently stumbled across yet another pro-polygamy blog called Polygamy Now, which exemplifies this micro-trend of Americans quietly but openly living as polygamists. Polygamy Now is run by a three-person marriage, composed of Martin, a 59-year-old computer programmer who apparently works for Microsoft, and Karen, a 62-year-old retired teacher and mother of three, and Lisa, a 47-year-old mother and health educator. Writes Lisa in her blog profile: “I wasn’t looking for [a polygamous relationship]; it just happened.” As you can see from the photo, they look pretty, well, normal. What I found most fascinating about the site is its “personals.” In late April, for example, a couple called Charles and Clarice posted this:

Clarice and I are looking for a second wife. We live in Wisconsin and we have a huge new home. Charles is an engineer and Clarice works from home. Charles is mormon fundamentalist independent and Clarice is a Catholic. We have 5 children here. We are open to more.

Also in April a couple called Brandy and Ronnie posted a personal ad looking for a “sister wife.” They write:

Recently, after much prayer, we decided that polygyny was for us! I know many are curious, so I will say that it was me (Brandy) who first thought of the idea. I saw all the practical benefits as well as the fact that it is in line with our Christian beliefs. Although both of us are Christians, we are not specifically pursuing polygamy for religious purposes. Both of us believe that we believers should strive to the highest Christian ideal, but that at the same time recognize that we often miss the mark and that is where grace comes in!!

In spite of the splashy headlines from Texas, then, is polygamy becoming ever-so-slowly normalized? What does it say about enforcement of anti-bigamy laws if polygamists can openly blog about their relationships? And perhaps most importantly, if same-sex marriage becomes a legal option in the U.S., will any legal barriers to polygamy remain?

I had the opportunity to put these questions and more to John Witte, the director of the Center for the Study of Law and Religion at Emory Law School who has written extensively about marriage. He explains why polygamy laws are rarely enforced, how “moral repugnance” is one of the last arguments against polygamy, and why having a concubine is still legal.

Andrea Useem: You’ve been following the case in Texas. Do any of the legal issues there concern polygamy? Will anyone be prosecuted for practicing polygamy?

John Witte: I doubt it. The main questions are going be whether there’s child abuse, coerced underage marriage, and statutory rape. Those are the more serious issues at stake, and I suspect that prosecutors will focus on those.

Useem: Does that mean the state does not care that much about prosecuting polygamy, and that if it weren’t for those other crimes they would have just let the community be?

Witte: I can’t judge what calculus the prosecutor is using. I do know that Texas and every other state has had polygamy laws on the books since the time of their founding and that those laws are now largely dead letters.

Useem: So anti-polygamy laws are on the books but they’re not used?

Witte: Yes. There’s long been ample documentation of some 30,000 polygamous Mormon families scattered throughout the Western states, and there is recent anecdotal evidence of several thousand polygamous Muslim families, especially on the Eastern seaboard. But straight application of polygamy laws against those groups is rare. Partly states are trying to avoid the questions of constitutional freedom that inevitably will be raised if those parties are prosecuted for violation of polygamy laws.

Useem: What constitutional freedom issues does polygamy raise? In the Texas case, could you argue that since practicing polygamy is integral to that groups’ idea of salvation, then it should be allowed under freedom of religion in the First Amendment?

Witte: The US Supreme Court has said clearly that practicing polygamy is not a religious right; there’s no free-exercise right to evade any criminal law, including criminal laws against polygamy. That a party is religiously motivated to be in a polygamous union does not change the reality such a union is illegal.

Useem: Maybe this question’s too obvious, but why is polygamy illegal in the U.S.?

Witte: That’s a harder question to answer than it used to be. The answer used to be that polygamy was prohibited by the Bible and by tradition. Scripture as traditionally interpreted, required that marriage be formed by a union of two, not three or four, into one flesh. Scripture used marriage as an analogy for how Christ related to his church or how Yahweh related to his chosen people of Israel. Because of those Christian foundations, marriage had a particular form that couldn’t be renegotiated. The common law absorbed those teachings, and they were perpetuated in American law. Those were reasons enough in the old days. It’s harder to press that case today, given the First Amendment prohibitions against the establishment of religion.

Some of the alternative arguments against polygamy are worries about equal protection, that is, why should a man be able to have multiple wives but a woman not be able to have multiple husbands? Once you get past the inevitable jokes about who gets control of the television remote and which woman would be so crazy, it’s hard for that argument to stand up against a polygamists’ call for having the right of private association like anyone else.

Other arguments are about the transmission of sexual diseases within a rotating marital bed or communicable diseases within such large households. Those are pretty hard arguments to make now in the face of constitutional protections for casual sex with multiple partners and given that children and adults gather in all kinds of social settings.

There’s also an argument about administrative inefficiency. Our laws are predicated on the assumption of one definition of marriage. What would happen if the polygamist husband died, or what would happen if one of his wives filed for divorce? How would we distribute marital property, or what would we do about child custody or residual life insurance or Social Security benefits? But today we have all manner of single parents and multiple generations of mixed families that, taken together, far exceed the number of traditional two-parent households. So the administrative inefficiency argument doesn’t do much either.

The argument that still sticks is the argument from moral repugnancy, that it’s just plain wrong for parties to be engaged in a polygamous union. Here polygamy is compared to indentured servitude, or gambling, or prostitution, or obscenity, or incest, or sex with minors or organ selling and things of that sort. These are viewed as activities that are just wrong or will inevitably lead to wrong-doing. Whether somebody wants to engage in those activities voluntarily, for reasons of religion, or bravery, or custom, or autonomy, makes no difference.

That argument has been sufficient in the eyes of many to support the traditional prohibition on polygamy. Under current First Amendment free-exercise law, which doesn’t provide much protection for parties that bring claims of being unduly burdened by state regulations in this area, it will likely be sufficient to uphold the constitutionality of polygamy laws if they are challenged.

Useem: Now we have the show Big Love, which of course is a fictional story about a suburban polygamous family, but a quick trip around the blogosphere shows there are other Big Love-type families out there: religious, tax-paying suburbanite professionals who choose to live polygamously. If enough of those people appear on Oprah will those moral repugnance argument still stand up?

Witte: I think the moral repugnance argument may well erode through cultural acceptance of all these alternative domestic relationships. Whether that acceptance will be sufficient to change the constitutional law is an open question, but it certainly will be the grounds on which legislation can change. Fifty states have said collectively that polygamy is a criminal activity, and a counter argument that it’s a violation of the constitutional rights of polygamists is an insufficient argument under current First- and Fourteenth-Amendment law.

But if the culture changes so that polygamy becomes a more acceptable practice, eventually legislation is going to change, too, just as cultural acceptance of sodomy and fornication led to legislative change. And if the legislature changes its traditional laws against polygamy, federal courts would be hard pressed to find a constitutional reason to strike that legislation down.

Useem: Because nothing in the Constitution right now says marriage is only between “one man and one woman.”

Witte: Exactly. Remember, too, that domestic relations and family law questions are usually state questions not federal questions, and they’re usually legislative questions not constitutional questions. So if a state legislature chooses to change its definition of marriage to include different forms of marriage like polygamy, or different parties to marriage, including same-sex parties, the Constitution currently does not stand in the way of that state. The experiment we’re engaging in today with respect to same-sex marriage, or alternative civil unions, or domestic partnership unions, all of which are currently available under certain state laws, is going be the beachhead on which the legalization of polygamy will have to make its case.

Useem: Is a debate over legalized polygamy purely theoretical? Obviously gays and lesbians have organized and advocated publicly for same-sex marriage. Yet we have not seen any major push for the legalization of polygamy.

Witte: So far it’s still a theoretical issue – except for the actual polygamists who want protection. But 30 years ago same-sex marriage rights were a theoretical issue as well. While only a small portion of the population engages in the practice of same-sex relationships, a large portion of the population today can see the liberty, equality, and privacy concerns behind the call for same-sex marriage. It would require that same kind of groundswell of empathy to change the question of legalized polygamy from a theoretical one to a practical one. It’s not inconceivable that that could be a next step, especially if the move toward pluralization of the forms of marriage continues apace around the states.

Useem: Let me ask you a question posed on a religious polygamy blog: “Polygamy is in the Bible. At what point in the Judeo-Christian tradition did monogamy become the norm?”

Witte: In the Judeo-Christian tradition, monogamy came with the giving of the law on Mount Sinai — 613 commandments that comprised the Torah. The Torah has a whole series of laws making it clear that marriage is defined as the union of a man and a woman, with the man having rights to divorce the woman, and the woman and her children having certain claims against the estate of the man.

Prior to the giving of the Torah there were examples of polygamists. The first recorded one in the Bible is Lamech. Then we have Abraham, with Sarah his wife and Hagar his concubine or surrogate wife, and Jacob with Rachel and Leah. We have King David with multiple wives including one he took through homicidal adultery, Bathsheba. We have Solomon with a crowd of wives and children, who killed each other.

There are a lot of examples of polygamy in the Bible, and there are many examples of polygamous practice in the Jewish and Christian traditions from the first century forward. Intermittently in the history of the West anti-polygamy campaigns were mounted, with polygamists condemned as heretics and singled out for persecution. But there’s a small but persistent practice of polygamy in Western religious traditions.

Useem: Did the Torah also outlaw having concubines? I have found at least one Jewish website trying to revive that practice.

Witte: There’s a longstanding practice of concubinage in both the Jewish and Christian traditions. Concubinage is a generic term that covers two different kinds of relationships. One definition, derived from Roman law, is a relationship between a single man and a single woman who live in a quasi-marital relationship, but who are precluded from marriage either because of impediments that prohibit marriage, social disparities that discourage marriage, or lack of consent by their respective parents. That kind of relationship was eventually outlawed in Christian tradition, but morphed into “clandestine marriage” and later “common law” marriage

That’s different than the concubinage that we normally talk about, which is a man having a wife and then having a concubine on the side. That second type of concubinage was outlawed in the Christian tradition from the start, though it persisted notwithstanding laws against it.

In the Jewish tradition, as I understand it, concubinage is of the second sort, according to various passages in the Talmud, and it persists as an alternative that a man could pursue in lieu of marriage or in addition to marriage.

Useem: But that practice must have been dropped along the way, yes? We don’t usually hear Jews saying “It’s okay to have a concubine.”

Witte: When precisely it was outlawed in the Jewish tradition I don’t know. In the Christian tradition concubinage is practiced but is illegal from the 12^th century forward.

Useem: Would it be fair to say concubinage is now legal, in that it is not illegal to have affairs if you’re married?

Witte: It is not criminal but it can give rise to civil sanction if the aggrieved spouse brings suit: it is a ground for divorce, and it can affect decisions about child custody and alimony. But you’re right, it’s no longer a criminal act. You are constitutionally protected in having sex with others as long as it’s consensual and as long as both parties are adults.