The Magazine

Polygamy Versus Democracy

You can't have both.

Jun 5, 2006, Vol. 11, No. 36 • By STANLEY KURTZ
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Given the post-Lawrence trend of the law journals, the success of Big Love (recently renewed for a second season), and calls for the legalization of polygamy by commentators at mainstream news outlets like USA Today and the New York Times, it has become necessary to offer a case against polygamy. That case will take us back in time and around the world. It will allow us to compare, on the one hand, the traditional patriarchal polygamy of many tribal peoples, Muslims, and nineteenth-century Mormons with, on the other hand, the free-form plural marriage advocated by "diversity" radicals today. Along the way, it will cast light not only on our domestic debates about marriage, but also on the war on terror and even the meaning of democracy itself.

Polygamy in American Law

The growing legal literature advocating the decriminalization of traditional polygamy was encapsulated by George Washington University law professor Jonathan Turley in a widely noticed October 2004 op-ed for USA Today. Turley argued that, as a simple matter of equal treatment under law, polygamy ought to be legal. Acknowledging that underage girls are sometimes coerced into polygamous marriages, Turley replied that "banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse." Like Turley, the law review literature argues that traditional polygamy is not intrinsically abusive, and can therefore be sufficiently policed through existing laws against incest, statutory rape, and child abuse. Big Love, set in a suburb of Salt Lake City, dramatizes this argument by contrasting the "good" polygamy practiced by Bill Henrickson and his three wives with the abusive polygamy in "the compound" nearby controlled by a traditionalist patriarchal figure.

But the law journals do more than merely separate good polygamy from bad polygamy. The law review literature puts forward what we might call the "conservative case" for polygamy. (See, for example, Alyssa Rower's "The Legality of Polygamy" and Samantha Slark's "Are Anti-Polygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults?") The argument is that the abuses of polygamy flourish amidst the isolation, stigma, and secrecy spawned by criminalization. By legitimizing polygamy and allowing its practitioners to join mainstream society, we can monitor and regulate the practice, thereby reducing any problems. On Big Love, for example, one polygamous wife won't visit a hospital for fear of alerting the authorities. Legalize polygamy, the argument goes, and marriage and divorce law will protect polygamous wives, instead of scaring them into hiding.

Of course, liberal law professors aren't defending polygamy out of affection for patriarchy. Their goal is to establish the principle that individuals have the right to create and define their families as they see fit. Ultimately, that would put same-sex marriage, polyamory, nonsexual group partnerships, and even singlehood on a par with traditional marriage, resulting in the effective abolition of marriage itself as a legal status.

So, for example, in her 2005 brief for legalized polygamy in the San Diego Law Review, Colby College professor of philosophy Cheshire Calhoun is careful to note that multipartner unions are by no means necessarily patriarchal, but would be available to lesbians, gays, and bisexuals, as well as heterosexual women with more than one partner. Likewise, Harvard political theorist Nancy Rosenblum assures us that legalized polygamy will give rise to "subversive" counterpatriarchal forms of group sex and domestic life, perfect for promoting true "democracy." In effect, Calhoun and Rosenblum see legalized patriarchal polygamy as a backdoor route to recognition for egalitarian polyamory. Commenting on Calhoun, University of Texas law professor Sanford Levinson goes further, welcoming the prospect of communal marriages organized around mutual care rather than sex, among the middle aged and elderly.

Reynolds v. United States