Why Two in One Flesh? the Western Case for Monogamy Over Polygamy

• Publication year: 2015

Why Two in One Flesh? The Western Case for Monogamy over Polygamy

John Witte Jr.

Emory University School of Law

WHY TWO IN ONE FLESH? THE WESTERN CASE FOR MONOGAMY OVER POLYGAMY

John Witte, Jr.^*

ABSTRACT

Questions about polygamy are likely to dominate Western family law in the next generation. Two generations ago, contraception, abortion, and women's rights were the hot topics. This past generation, children's rights and same-sex rights have dominated public deliberation and litigation. On the frontier of Western family law are hard questions about extending the forms of valid marriage to include polygamy and extending the forums of marital governance to include religious and cultural legal systems that countenance polygamy. This Article analyzes the 1,850 year tradition of Western laws against polygamy and the growing constitutional and cultural pressures to reform these laws today. I show how the traditional Western cases against polygamy and same-sex unions used strikingly different arguments drawn from the Bible, nature, rights, harm, and symbolism. I conclude that, because these arguments are so different, Western nations can responsibly hold the line against polygamy, even if they choose to accept same-sex marriage and its accompanying norms of sexual liberty, domestic autonomy, equality, and nondiscrimination. I reject ideological arguments, pro and con, that anti-polygamy laws are a form of traditional Christian morality. I reject slippery slope arguments, from the right and the left, that acceptance of same-sex marriage must inevitably lead to acceptance of polygamous marriage. And I reject arguments from domestic and international sources that religious freedom norms command the accommodation, if not validation, of

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religious polygamy. The West may, and in my view should, politely say no to polygamy. An Appendix to the Article provides a detailed guide to different forms and terms of plural marriage discussed and prohibited in the West—real polygamy, constructive polygamy, successive polygamy, and clerical polygamy.

Introduction ............................................................................................ 1677

I. Traditional Laws Against Polygamy and Modern Challenges....................................................................................1680

A. Polygamy in American Law..................................................... 1680
B. Polygamy in Other Common Law Lands................................. 1687
C. Polygamy in Civil Law Lands.................................................. 1692
D. Polygamy Laws in the European Union .................................. 1697
E. Global Legal, Religious, and Cultural Patterns of Polygamy . 1699

II. Reconstructing the Modern Western Case Against Polygamy.......................................................................................1705

A. Framing the Questions ............................................................ 1705
B. Biblical and Legal Arguments About Polygamy and Same-Sex Relations.................................................................................. 1709
C. Natural Arguments .................................................................. 1716
D. Harm Arguments ..................................................................... 1725
E. Symbolic Arguments ................................................................ 1730

Summary and Conclusions....................................................................1735

Appendix: The Shifting Terminology of Plural Marriages............1739

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Introduction

For more than 2,500 years, the Western legal tradition has defined lawful marriage as the union of one man and one woman with the fitness, capacity, and freedom to marry each other. This was the dominant normative teaching of ancient Greeks and Romans, first millennium Jews and christians, medieval catholics and early modern Protestants, modern Enlightenment philosophers and liberals, common law and civil law jurists alike. While monogamous marriage is neither good for everyone nor always good, all these traditions have argued, in general and in most cases, monogamous marriage brings essential private goods to the married couple and their children, and vital public goods to society and the state.¹

For more than 1,850 years, in turn, the Western legal tradition has declared polygamy² to be a serious crime; indeed, it was a capital crime in much of the West from the ninth to the nineteenth centuries. While a few Western writers and rulers have allowed polygamy in rare individual cases of urgent personal, political, or social need, virtually all Western writers and legal systems have denounced polygamy as an alternative form of marriage and have denounced the occasional polygamous experiments of early Jewish aristocrats,³ medieval Muslims,⁴ early modern Anabaptists,⁵ nineteenth-century Mormons,⁶ and modern-day immigrants to the West.⁷

The historical sources commended monogamy on various grounds.⁸ The most common argument was that exclusive and enduring monogamous marriages were the best way to ensure paternal certainty and joint parental investment in children, who are born vulnerable and utterly dependent on their parents' mutual care and remain so for many years. Monogamous marriages, furthermore, were the best way to ensure that men and women were treated

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with equal dignity and respect within the domestic sphere and that husbands and wives, and parents and children provided each other with mutual support, protection, and edification throughout their lifetimes, adjusted to each person's needs at different stages in the life cycle. This latter logic now applies to same-sex couples, too, who have gained increasing rights in the West in recent years, including the rights to marry, adopt, and parent in some places.

The historical sources condemned polygamy on a number of grounds. The most common argument was that polygamy was unnatural, unfair, and unjust to wives and children—a violation of their fundamental rights in modern parlance.⁹ Polygamy, moreover, was also too often the cause, corollary, or consequence of sundry other harms, crimes, and abuses.¹⁰ And polygamy, according to some more recent writers, was a threat to good citizenship, social order, and political stability, even an impediment to the advancement of civilizations toward liberty, equality, and democratic government.¹¹ For nearly two millennia, the West has thus declared polygamy to be a crime and has had little patience with various arguments raised in its defense.

With the growing liberalization of traditional Western norms of sex, marriage, and family life in recent decades, and with the escalating constitutional battles over same-sex marriage, these traditional Western criminal laws against polygamy are coming under increasing pressure. The first cases challenging the constitutionality of these laws have been filed—with an American federal district court in Utah striking first in declaring partly unconstitutional Utah's state laws against polygamy.¹² The first sustained scholarly arguments for legal toleration if not state recognition of polygamy have been pressed—with various liberals and libertarians, Muslims and Christians, philosophers and social scientists, multiculturalists and counterculturalists finding themselves on the same side.¹³ The first wave of popular media portrayals of good polygamous families in America has now

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broken with shows like Big Love and Sister Wives stoking the cultural imagination and sympathy much like Ozzie and Harriet and Little House on the Prairie had done for prior generations of urban and rural families.¹⁴ Just as same-sex advocates moved first against the criminalization of sodomy and then for the recognition of same-sex unions and marriage, so pro-polygamy advocates aim first to repeal traditional criminal laws against polygamy and then to include polygamy as an alternative form of valid marriage recognized by the state.¹⁵

This Article, largely drawn from a new 500-page monograph on the topic,¹⁶ puts these looming questions in larger historical and comparative perspective. In Part I, I analyze the current Western laws against polygamy and the growing constitutional and cultural pressures to reform them. In Part II, I show how the traditional Western cases against polygamy and same-sex unions used strikingly different arguments drawn from the Bible, nature, rights, harm, and symbolism. While same-sex relationships were traditionally prohibited as unnatural sexual taboos that violated biblical norms, polygamy was prohibited as an abusive, harmful, and socially deleterious institution that violated the equal dignity of the marital partners. I conclude that, because these arguments are so different, Western nations can responsibly hold the line against polygamy, even if they choose to accept same-sex marriage and its accompanying norms of sexual liberty, domestic autonomy, equality, and nondiscrimination. I reject ideological arguments, pro and con, that anti-polygamy laws are a form of traditional Christian morality. I reject slippery slope arguments, from the right and the left, that acceptance of same-sex marriage must inevitably lead to acceptance of polygamous marriage. And I reject arguments from domestic and international sources that religious freedom norms command the accommodation, if not validation, of religious polygamists. The West may, and in my view should, politely say no to polygamy.

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I. Traditional Laws Against Polygamy and Modern Challenges

A. Polygamy in America Law

A century and a half ago, American Mormons made international headlines by claiming the religious right to practice polygamy, despite federal criminal laws against it.¹⁷ In four main cases from 1879 to 1890, the United States Supreme Court firmly rejected their claims and threatened to dissolve the Mormon Church if they persisted.¹⁸ Part of the Court's...