Polygamy Is Constitutional – Here’s Why

Now that a U.S. appeals court has declined to strike down Utah’s bigamy laws, it’s reasonable to ask: What does the Constitution, properly interpreted, have to say about the topic?

Legally speaking, the issue can be split in two. The first question is whether a state may criminalize marriage to more than one person. The second is whether, in light of the U.S. Supreme Court decision last year to require states to recognize same-sex marriage, there now exists a fundamental right to marry more than one person – and to make states treat plural marriages on equal terms with marriages between two people.

The first one is easier. Under current laws in many states, if you’re already married, then it’s a crime to marry another person as well. These laws are part of our legal tradition, and perhaps make some sense if you restrict them to bigamists who marry a second spouse without telling them about the existence of the first.

But consider the consolidation of constitutional rights that already exist: I can have sex with any consenting adult under the court’s 2003 precedent of Lawrence v. Texas, which struck down anti-sodomy laws. I can freely engage in any religious ritual under the free-exercise clause of the First Amendment. And using my freedom of speech, I can talk about both my sexual relationships and religious rituals that I’ve used to solemnize them.

Given these rights, it seems strange that the law prohibits me from forging sexual relationships with multiple partners and calling them my spouses after we’ve made a mutual religious commitment. If I called them girlfriends or boyfriends, I’m protected by the Constitution. So, it seems indefensible that I can’t call them wives or husbands.

It might just be plausible to say that I can’t call my life partners legal wives or husbands so long as the law doesn’t recognize plural marriages. But even a rule prohibiting me from doing so on the grounds that it might mislead others is almost certainly unconstitutional. In U.S. v. Alvarez in 2012, the court struck down a law that criminalized lying about winning a medal of honor. The right to lie is therefore enshrined in the constitutional pantheon. If I can lie about a medal, why not about marriage?

The harder question is whether the state should be obliged to recognize plural marriage and treat polygamists equally with those who marry one person. In the Supreme Court’s gay-marriage decision, Obergefell v. Hodges, Justice Anthony Kennedy said that there was a fundamental right to marry the person of your choice, and he said that everyone is owed the opportunity for the equal dignity of marriage regardless of sex or sexual orientation. But he did not say those rights could be extended to polygamy and polygamists.

Logically, however, that extension is warranted unless the government has a compelling interest in preventing plural marriage. Start with the fundamental right to choose a partner. Suppose I am not married and want to choose someone who is already married. My autonomy demands that I be free to make that choice, much as I should be able to choose a partner regardless of that person’s sex.

Then there’s the question of equal dignity. If all humans are inherently entitled to have their marriage choices respected and acknowledged by the government, there’s no good reason to exclude people who choose plural marriage. The fact that some religions tend to be the people seeking this right gives a further free-exercise reason to treat them equally.

Often, the Supreme Court asks whether a fundamental right is trumped by a compelling state interest to the contrary. This does not seem to be such a case. Considering that the law already allows me to share my life with multiple partners, what interest can the state have in refusing recognition to that relationship? Certain versions of plural marriage may be associated with cult-like behavior or abuse. But the solution is to outlaw abuse and coercion, not polygamy itself.

Practical legal problems regarding child custody and property division would arise in plural marriages. And it remains to be worked out whether such marriages would consist of overlapping bilateral relationships or comprehensive joint ones. But these are the kinds of problems that family law excels in solving. Plural marriage, after all, is not some newfangled invention. It’s in the Bible, and was known to most ancient civilizations in one form or another. Its roots lie even deeper than those of gay marriage. It’s time the Supreme Court recognized it.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Noah Feldman
Bloomberg View
April 14, 2016

 

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books. He has a bachelor’s degree from Harvard, a law degree from Yale University and a doctorate from the University of Oxford, where he was a Rhodes scholar. He clerked for Justice David Souter on the U.S. Supreme Court. He lives in Cambridge, Massachusetts, and is a senior fellow of the Society of Fellows at Harvard.

10th Circuit Reverses Brown vs. Buhman Decision

Yesterday afternoon, the United States Court of Appeals for the Tenth Circuit reversed the decision of Brown vs. Buhman, which had struck down the cohabitation provision of the Utah polygamy law. They ruled that the lower court should have dismissed the case, while they failed to address any constitutional issues or violations.

Jonathan Turley, lead counsel for the Brown Family, respectfully disagrees with the court decision and intends to appeal, as he believes that the underlying rights of religious freedom and free speech are too great to abandon after prevailing in the lower court.

Perhaps the reason behind the higher court’s ruling is as simple as what one has suggested:

My sense is that the panel looked for a reason to avoid handling a hot potato.

We agree with the assessment of another who wrote,

Thinking strategically … if [the state of Utah] had lost, the state might not have appealed, and the decision would only apply to the 10^th circuit; but because the Browns lost, they can choose to appeal to the Supreme Court, and thus have a chance to have the law struck nationwide.

It was Justice Harry Blackmun, addressing another issue, who once wrote in his dissent from the majority opinion in Bowers v. Hardwick:

That certain … religious groups condemn … behavior … gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.

Listen to these adapted comments related to this issue:

What’s the difference between (1) marriage, (2) serial marriage, (3) cohabitation, (4) serial cohabitation, (5) friends with benefits (6) one night stands and (7) plural marriage?

6 are legal in many states.

In contrast, another observes:

Pop culture hates polygyny for the same reasons they like same-sex marriage: [our culture] is anti-family and anti-progeny. Polygynists stand against modern values.

Choosing the “Right” Wife, or Being the Right Husband?

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Sometimes a husband may grumble about his “choice” of a wife. He’ll speak of her incompatibility, her lack of interest in mutual things, her indifference in spiritual matters, her deficiency of physical appeal, etc.

Interestingly, in Old Testament times marriages were commonly arranged. Although we do not necessarily promote a return to its practice, that does not mean that it was without any merit. One interesting thing that it and the levirate law (where a man was required to marry his brother’s widow) do is that they demonstrate that a man can love and care for a woman – any woman – even one they did not even choose themselves. The bottom line is that marriage is not so much about “choosing” the “right” wife, as it is about being the right husband.

Paul did not write:

Husbands love your ideal wives …
Husbands love your loving wives …
Husbands love your helpful wives …
Husbands love your Proverbs 31 wives …
Husbands love your non-deficient wives …
Husbands love your uncomplicated wives …
Husbands love your unbroken wives …
Husbands love your compatible wives …
Husbands love your submissive wives …
Husbands love your spiritual wives …
Husbands love your attractive wives …
Husbands love your supermodel wives …
Husbands love your sexy wives …

No, without qualification, he simply wrote:

Husbands love your wives …

Clyde L. Pilkington, Jr.
(Excerpted from his book, Wife Loving, below)

————————————

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by — Clyde L. Pilkington, Jr.

This book is about Christ-mentored husbandry; a look at husbands’ important and honored role of loving their wives. So lofty and divine is its pursuit, Paul presents none other than Christ Himself as the mentor: “Husbands, love your wives, even as Christ also loved the church.”

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Crowning Creative Act

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God’s crowning creative act was the making of woman. At the close of each day, it is formally recorded that God saw what He had made, and it was good (Genesis 1:31). But when Adam was made, it is explicitly recorded that God saw it was not good that the man should be alone (Genesis 2:18). As to man, the creative work lacked completeness, until, as all animals had their mates, there should be found for Adam also a help meet for him – his counterpart and companion. Not until this need was met did God see the work of the last creative day also to be good.

Arthur T. Pierson (1837-1911)
Cited by Arthur W. Pink in The Excellence of Marriage
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Song of Solomon

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The Song of Solomon is an erotic love poem. In some places, the meaning of the poet can hardly be missed, and for prudish Christians, the clarity of the point is all the more embarrassing. But embarrassment is not an appropriate response for Christians; all of Scripture is inspired, and is profitable for instruction.

It is legitimate to read and learn from the erotica of the Song. This erotica is clearly and unambiguously sexual. Put another way, the Bible contains literary passages which we may read, in which another couple is engaged in passionate lovemaking.

Douglas Wilson
Reforming Marriage, pages 104-105

Serial Polygamy

In some societies a man may marry several wives. Western society allows this in a different way, in what is sometimes called “serial polygamy” – a man may marry several wives so long as he legally divorces the current one before marrying the next.

Arguably, the “Christian” form of polygamy is a more primitive and callous arrangement for the man’s existing family than ordinary polygamy. In polygamous societies, the first wife and their children remain viable parts of a viable social entity… In serial polygamy the children are brought up in a broken home, the wife is discarded in a difficult social position.

Understanding Human Behavior
Human Relationships: Man & His Women, Vol. 4, p. 438

Beginning Again

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Since the beginning He has been a God of compassion, to forgive people, and let them begin again. The adultery and murder of Uriah by King David was as bad as – if not worse (in man’s value system) – than divorce. Yet, God honored the marriage of David and Bathsheba after their repentance (II Samuel 11-12). God did not reckon David’s sin with Bathsheba as damning guilt, but freely forgave him.

He so fully forgave that He gave Bathsheba another son (Solomon) and bestowed a love upon him which gave him the name Jedidiah, which means “beloved of the Lord” (II Samuel 12:24, 25). Furthermore, God put Bathsheba in the genealogy of Jesus Christ (Matthew 1:6) and called David a man “after His own heart” (I Samuel 13:14).

This is what grace does. Only the condemning, self-righteous, grace-ignoring would beg to disagree with the compassion of the Lord. Thus I cannot understand a theology that, in the name of Christ, will forbid remarriage … a new start.

Ross Davis
Life At Its Best (1980)

The Sin of Husbands: Bitterness

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Husbands, love your wives, and be not bitter against them (Colossians 3:19).

Divine revelation alerts husbands to their natural hindrance to loving their wives: bitterness. Bitterness is defined as “anger and disappointment at being treated unfairly; resentment” (Oxford); “a feeling of anger and unhappiness” (Cambridge).

Some husbands tell us that they can’t help the negative feelings that they have toward their wives. A husband may say that he can’t “help” having these feelings, but certainly one can “help” what is done about them. Negative “feelings” of bitterness or otherwise can’t be used as an excuse. Feelings are fickle. Feelings aren’t trustworthy. Feelings should never lead our way. Feelings are great servants, but dangerous masters. We must not allow ourselves to be dominated by our feelings.

In 1832 Adam Clarke writes concerning this passage,

Wherever bitterness is, there love is lacking. And where love is lacking in the married life, there is hell upon earth (Adam Clarke Commentary).

Jamieson, Fausset and Brown remind us that,

Many who are polite abroad, are rude and bitter at home (Commentary, 1871).

The divine, Pauline instruction, followed immediately after the directive to love our wives, is to “be not bitter against them.” A.T. Robertson tells us plainly that, “This is the sin of husbands,” and that it is in the “present middle imperative in prohibition: ‘Stop being bitter’” (Word Pictures of the New Testament).

Christ’s love was willingly self-sacrificial; yet ours is resentful? Does Christ resent the ecclesia for all that it puts Him through? Is He ever bitter and resentful toward us for all of His personal labors and loss sacrificed for us?

Negative feelings toward our wives should be for us an immediate indication of the hardness of our own hearts. We must ever look to the Savior for correction and encouragement of such sinful attitudes.

Clyde L. Pilkington, Jr.
(Excerpted from his upcoming book, Wife Loving.)

All I Want from My Wife Is …

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Husbands are often heard complaining, “All I want from my wife is for her to be … loving … giving … gracious … co-operative, etc.” While these are wonderful ideals, and undoubtedly we should endeavor to lead our wives on a spiritual journey that would have us grow together in these areas, our responsibilities as husbands are not lessened by our wives’ lack in any or all of them. Loving our wives is not at all contingent on their responses.

Husbands, be loving your wives according as Christ also loves the ecclesia, and gives Himself up for its sake.

This is a clear, stand-alone truth. Christ’s love and giving up of Himself for us was in no way contingent on our own level of love, grace or co-operation: it was unmerited. This is the Paul’ point regarding our role with our wives. No one in the Old Testament ever could have known such a remarkable truth as this – because they never could have imagined the extent of selfless love outpoured at Calvary.

Will we ever “get” what we long for from our wives? Perhaps to some degree, but that is beside the point. Husbands have a higher calling than merely to “receive”: they are called to selfless “giving.” Some husbands are busy stressing to their wives the word “subject” (“submit”) in Ephesians 5:22, all the while avoiding the “gives” in :25. Husbands who consume themselves with their wives’ shortcomings are usually the same ones who fail to look in the mirror to see their own. To adapt our Savior’s words,

Why do you notice the splinter in your wife’s eye and fail to see the plank in your own eye? How dare you say to your wife, ‘Let me take out the splinter that is in your eye,’ and you never notice the plank in your own eye? What a hypocrite! Take the plank out of your own eye first, and then you will see properly to take out the splinter in your wife’s eye (cf. Matthew 7:3-5).

Husbands’ standard excuse for not doing what God has called them to do is to follow Adam in shifting the blame to our wives. It is always somebody else’s fault. If our wives were just somehow different, we would love them more and give up ourselves for them. We as husbands must be done with our selfish victim mentality. God is behind all of our circumstances, including our marital ones, and all that we are going through is for our good.

The husband’s sacrificial love and giving to his wife are not merely petty matters; they are principles on which the divine structure of the universe is founded. The sooner we learn these grand truths, the further along we will be in our spiritual development. We will review the lessons of these divine principles over and over until Christ is formed in us. This life is the training and preparation for our celestial calling and responsibilities. Don’t waste its priceless lessons. Make the most of them. We will be thankful for every lesson learned at the appearing of Christ – and make no mistake about it: there will be a great surprise waiting for us, for many of those who have appeared to be great spiritual teachers and leaders here in this life will be dwarfed by those whom Father has privately taught the principles of divine love and self-sacrifice.

Yet now are remaining faith, expectation, love – these three. Yet the greatest of these is LOVE (I Corinthians 13:13).

One may excel greatly in faith and hope, but Paul clearly tells us that without love we are “nothing” (:2), and ALL of our other efforts, no matter how noble they may appear to others, benefit “nothing” (:3). Faith, hope and love: having only the first two out of the three leaves us destitute. Love is faith’s and expectation’s superior. Let’s learn well the lessons of Christ’s love. Let’s not come up empty at His appearing.

Clyde L. Pilkington, Jr.
(Excerpted from his upcoming book, Wife Loving.)

Choosing the “Right” Wife, or Being the Right Husband

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Sometimes a husband may grumble about his “choice” of a wife. He’ll speak of her incompatibility, her lack of interest in mutual things, her indifference in spiritual matters, her deficiency of physical appeal, etc.

Interestingly, in Old Testament times marriages were commonly arranged. Although we do not necessarily promote a return to its practice, that does not mean that it was without any merit. One interesting thing that it and the levirate law (where a man was required to marry his brother’s widow) do is that they demonstrate that a man can love and care for a woman – any woman – even one they did not even choose themselves. The bottom line is that marriage is not so much about “choosing” the “right” wife, as it is about being the right husband.

Paul did not write:

Husbands love your ideal wives …

Husbands love your loving wives …

Husbands love your helpful wives …

Husbands love your Proverbs 31 wives …

Husbands love your non-deficient wives …

Husbands love your uncomplicated wives …

Husbands love your unbroken wives …

Husbands love your compatible wives …

Husbands love your submissive wives …

Husbands love your spiritual wives …

Husbands love your attractive wives …

Husbands love your supermodel wives …

Husbands love your sexy wives …

No, without qualification, he simply wrote:

Husbands love your wives …

Clyde L. Pilkington, Jr.
(Excerpted from his upcoming book, Wife Loving)