The argument that there is a fundamental right to marriage that applies to same-sex marriage threatens conventional morality in ways that extend beyond the issue of homosexuality. Polygamists and practitioners of incest could argue that such a right protects them as well, a possibility very much on Justice Potter Stewart’s mind when he declined to join the majority in Zablocki. He warned that the Court’s support for a fundamental right to marry could open the door to all three forms of prohibited marriage, writing that - A ‘compelling state purpose’ inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.’
Stewart was not alone in these fears. Many opponents of same-sex marriage have expressed concerns that if society allows same-sex marriage, it would have to allow polygamy. Numerous Republican congressmen, in addition to noted political commentators William Bennett, George Will, Robert Bork, and William Safire, have made similar arguments. Also, during congressional hearings on the Defense of Marriage Act, the analogy between polygamy and same-sex marriage was a dominant theme. Many prominent liberal academics have been circumspect on this point, perhaps because polygamists, mostly associated with Mormons in the public mind, are not as popular in the academy or with the political left as are gays and lesbians. Among the many law review articles on same-sex marriage, the vast majority of which support it, apparently not one has argued that polygamists are also entitled to enter into unconventional marriages. When academics have addressed polygamy, they treated it with the sort of contempt or indifference that they decry when directed at other marginalized people.
The otherwise careful William Eskridge attempts to dismiss polygamy as patriarchal, arguing that “allowing a man to take two wives might create or exacerbate hierarchical structures within the marriage. As the center of competition, the husband would be able to play one wife against the other. This vague, speculative generalizing about the potential evils of nontraditional families is exactly the sort of attack that has so often been used against same-sex couples, Richard F. Duncan points out that Eskridge cites no data supporting these conclusory assertions. A second problem with Eskridge’s analysis is that it is inapplicable to polyandry, the practice of a wife taking more than one husband. There might be some justification for this because the practice is less common than that of a man taking multiple wives. But if patriarchy is the primary evil of polygamy, this suggests there is no problem with polyandry. The focus on multiple wives suffers from the same problem as the gender discrimination argument critiqued in Chapter 3: It is an attempt to shoehorn a complex social issue into the more familiar (and less threatening) category of gender discrimination.
Furthermore, the argument equating polygamy with patriarchy is oddly indifferent to the views of the very women whom the polygamy ban purportedly protects. David Chambers, one of the very few academics who have given genuine consideration to the perspective of polygamists, writes of the oft-repeated assertion that polygamy oppresses women:
‘At many point in the political attack on the Church, large numbers of Mormon women joined together to speak publicly in support of plural marriage and to affirm that polygamous husbands were living up to the highest callings of their religions…there is no reason to doubt the sincerity of these women’s beliefs in the sacred meaning of plural marriage. These women and their children seem to have lived lives that were as satisfying as the lives of most of the contemporaries.’
In fact, there is substantial empirical evidence that the stereotype of women in polygamous marriages competing with one another for the husband’s attention, bearing huge numbers of children with distant relationships from the one father, is a myth. Chambers points to Jessie Embry’s study of Mormon plural-marriage families in the late nineteenth century, which concludes that ‘plural wives established harmonious relationships with each other and tolerable relations with their husbands. Many children, perhaps most, had relationships with their fathers typical of other children of their era. Commonly, the children formed close relationships with both their mothers and their fathers’ other wives. Women in plural marriages were motivated by the sacred function of plural marriage to strive to make the complex and awkward familial relationships succeed.’ Mormon women in Utah in that century also had greater economic independence than their counterparts back east, despite polygamy. Historian Julie Roy Jeffrey says: ‘The goals of self-sufficiency and productivity led the Church to encourage and praise those women who became producers. As one female traveler observed, ‘They close no career on a woman in Utah by which she can earn a living.’
Eskridge argues that multiple spouses could undermine the ‘companionate’ aspect of marriage and diminish ‘the intensity of the emotional bond’ between spouses. Again, however, there is no empirical support for this claim. As with the patriarchy argument, this is the sort of seat-of-the-pants sociology that some have used to paint same-sex relationships as shallow, perverse, and so forth. Chambers says that ‘To my reading, the actual experience of American men and women in plural marriages seems more complex and less sinister than [Maura] Strassberg portrays them and than Eskridge imagines them. Many people in plural marriages find temporal and religious satisfactions that greatly outweigh their disadvantages.’
Other critics of polygamous marriage argue that polygamy ‘has been rife with abuses – including forced marriages, sexual exploitation of minors, and welfare dependency.’ This is the sort of fallacious argument that all social scientists should avoid. When a lifestyle is illegal and driven underground, that can lead its practitioners toward anti-social behavior. We should not blithely conclude that such antisocial behavior is inherent in the lifestyle itself. This is the fallacy so often directed at gays and lesbians who are banned from marrying and then chided for promiscuity. Steve Chapman writes:
‘Such unsavory conduct stems partly from the fact that when polygamy is illegal, the only people likely to practice it are nut cases and people with a deep-seated contempt for authority. Plural marriage, in this group, may be just one of many expressions of aggressive nonconformity. If the practice were legally permitted, on the other hand, it would be more likely to attract people with a strong law-abiding disposition. The need to stay under the radar of law enforcement agencies also breeds abuse by discouraging its victims from going to the authorities. Legalizing the practice would bring polygamists out from underground, making it easier to combat the real evils found in some plural marriages. Those who persist in such abuses can be prosecuted along with all the other pedophiles and welfare frauds - the vast majority of whom, it will surprise you to learn, are non-polygamous.’
Indeed, it is surprisingly difficult to articulate why it is perfectly legal for a man to sleep with many women and have children by all of them, even though it is illegal for that man to marry those women. ‘If consenting adults who prefer polygamy can do everything else a husband and wife can do - have sex, live together, buy property, and bring up children jointly - why should they be prohibited from legally committing themselves to the solemn duties that attach to marriage?’ Chapman asks. ‘How is society worse off if these informal relationships are formalized and pushed toward permanence?’
The history of American treatment of polygamists hardly supports the notion that the practice is banned out of concern for women’s rights or for any of the more palatable reasons offered today. Our treatment of polygamy is rife with racism, sexism, intolerance, and extremism. Attempts to destroy the Mormon Church and polygamy led Congress to violate such basic civil rights such as jury service, property ownership, and even the vote for women, Chambers writes:
‘[Congress] began in 1862 by banning polygamy in the territories. Several years later, it enacted additional legislation declaring that in order to be eligible to vote in the territories, men had to take an oath that they were no cohabiting with more than one woman. It also barred polygynists from jury service and political office. Finally, in 1887, in an astonishing gesture, Congress invalidated the corporation of the Mormon Church itself, authorizing the escheat to the United States of all Church property not used exclusively for religious purposes. In the same Act, unhappy that Mormon women continued to vote for Mormon candidates, it took away from women the right to vote.’
When the Supreme Court was asked to rule upon polygamy, its holding was steeped in racism and nativism. ‘Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people,’ justices wrote. The Court apparently assumed that a practice’s association with non-whites was convincing evidence of its degraded nature.
It must be emphasized that my argument here is not that polygamy is a positive institution or that it should be legalized. My argument, first, is that the position that gays and lesbians have the fundamental right to marry someone of their own gender leads many people to worry that polygamists would be protected as well, which may better account for judicial hostility to same-sex marriage than do the very weak explanations offered by the courts themselves. Second, liberal and left-leaning academics and lawyers have responded by avoiding the fundamental rights argument, preferring the analytically weaker gender discrimination argument because it helps gays and lesbians but not polygamists or other groups to which they may be unsympathetic. Third, advocates of same-sex marriage should take the same hard look at the reasons for banning polygamy that they are asking heterosexuals to do with same-sex marriage. In evaluating ways of living, we must not rely upon mere speculation or intuitions that support our prejudices; we should hold ourselves to stringent standards of evidence. Gays, lesbians, and their allies should not compromise these high standards when critiquing nontraditional families that are vilified even more than are same-sex couples.
Nonetheless, it is quite possible to distinguish same-sex marriage from polygamy without resorting to unsupported, stereotype-based attacks. There certainly seems to be a difference between a right to marry who you want and marrying however many people you want. Multiple marriages raise several legitimate state concerns that same sex marriage does not. Eskridge has made a credible argument that polygamy threatens the social safety net by diluting social insurance; if a polygamist dies, presumably several spouses would have to divide his or her Social Security survivor’s benefits, for instance. Polygamy could create confusion over issues of custody, who has final say over medical decisions in the case of an incapacitated spouse, and so forth. Multiple wives might increase incidence of incest (a topic to be discussed shortly) between half-siblings. Finally and most importantly, a right to multiple spouses has no logical stopping point. If a person can have two wives, then why not twenty, fifty, or a thousand? What would stop a whole town or religious cult from marrying and gaining the legal privileges of marriage?
So, there can be a strong case made for the ban on polygamy. Still, polygamists have the same right as same-sex couples to go to court and demand that the state give real reasons - not just stereotypes and unsupported generalizations - for banning their marriage. Because the polygamy issue clearly shadows same-sex marriage, advocates of the latter need to address the differences and similarities between these two forms of nontraditional marriage more honestly.”
