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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, 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.
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 10th 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.
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
Much of what I teach is regarding absolute truth – it is fixed and foundational.
On the other hand, however, there’s a lot of what I share that is relative. In this area I deal with the application of absolute truth in day-to-day life. It is here, in the relative (how we relate the truth practically to our lives), that things are more difficult. This is due to the barrage of unparalleled circumstances that today’s believers must face. These circumstances are so removed from the divine ideal that we are caught in extremely difficult situations. These conflicting settings are, more often than not, less than ideal, if not in outright opposition to God and His revealed principles.
For this reason, believers frequently simply have to do the best that they can do under the circumstances. God knows all about it since, obviously, it is He Who has designed these challenges of faith. We must play the hand we are dealt.
Although, having said that, by the grace of God, utilizing divine wisdom and the courage of faith we may take advantage of the opportunity to discard and draw again – daring to cross the currents of a society that has recklessly abandoned God and His revelation. This is not an easy course, and it is one that we likely will walk alone.
by — Thomas Lucente
The idea that we must beg the government for permission to marry … should be repugnant to every freedom-loving American. So long as people are not hurting anyone, they should be permitted to marry whomever they wish. …
At the basic level, marriage is simply a contract between two people. … Because of that, people would still not be permitted to marry children (who can’t enter into contracts) … or animals (who can’t enter into contracts). …
Marriage should be beyond the power of the state to control. This contract view of marriage is how humans in the Western world saw it for centuries. Marriage, throughout most of Western history, was a private affair. Indeed, early marriages occurred when the couple simply said, “I marry you.” Neither priest nor government agent nor witness needed to be present. Often, cohabitation for a period of time was enough to validate the marriage in the community. There was no license from the government or the church. It just happened.
Eventually, the church began recording marriages and requiring a ceremony in the late Middle Ages. In the 17th century, some jurisdictions began issuing marriage licenses (though a form of licensure can be found in Great Britain as early as the 13th century, but that was usually more about public notice than permission), which became widespread about the mid-19th century. So the tradition of marriage is one absent of state control. It is only in later years, with the growth of the administrative state, that marriage became something that required permission from the state. It’s time we end this recent development and give people the freedom to live, and marry, as they wish.
The Lima News
March 31, 2013
Thomas J. Lucente Jr. is a veteran of the Iraq war, has a bachelor’s degree in history and a law degree from the University of Toledo.
It was some years ago, while reading the seven volume Annals of Ireland, that it became obvious to me that my Irish ancestors were polygamist. The Annals don’t use that word, but instead spoke about building alliances between adjoining tribes through multiple marriages and warriors taking in their brother’s wife and children when he was killed in war. It was clear that some men had multiple wives. Polygamy is also common in biblical stories. It is a part of our heritage.
It’s Time to Legalize Polygamy
Planted by the Eastern Mennonite Missions in 1948, the Ethiopian Meserete Kristos Church is the largest national body in the Mennonite World Conference. With 484 official congregations, and 834 congregation planting centers, it is also the largest national Anabaptist conference in the world.
This Ethiopian Mennonite Church has included polygamy in its definition of marriage. A Mennonite Weekly Review article entitled What is a Mennonite? An Ethiopian Definition states that plural marriages are sanctioned by the denomination.
Disciplined, holy lives are important, but the church is also committed to redemptive approaches, meeting people where they are. Several years ago the church agreed a man and his multiple wives can all be instructed and become full members, barred only from leadership roles.
Many Americans believe that marriage was instituted by God as a covenant between one man and one woman, and to mess with that is to trifle with one of the basic pillars of civilization.
When pressed for proof of that belief you might be directed to check the Bible, where (surely) it plainly states that God only blesses a traditional one man/one woman sort of a marriage. But if you actually crack open the Bible, you find that it’s a bit more complicated than that.
Polygamy, for example, is very common throughout the Old Testament and is never condemned as a sin. Abraham, Jacob, Moses, David and Solomon are just a few of the biblical luminaries who had more than one wife and were never chastised for it (although Solomon was led astray from the true faith thanks to the influence of his 700 wives and 300 concubines, proving that there is always a hazard in getting too much of a good thing.) It seems like an argument could be made that a biblical view of marriage is that it should be between one man and as many women as that man can afford to keep up with.
Polygyny (polygamy) is always morally right as it was a product of sound wisdom when society faced a terrible imbalance in the gender ratio. Who would like to see his sister or daughter unmarried for life or be a prey to casual marriage practitioners? Hence having only the option to sniff the married life for a while and then return to permanent loneliness. The greedy modern man likes it this way. The crowd of women who have once tasted marriage between one month and seven years is swelling by the day. They will have to live the rest of their lives without a husband, while the men endlessly taste the married life with one prey after the other; most of them ending as bedmates. One once told me that he had tasted up to eighty women. Mere tasting of the honey is now the game. Who cares for a permanent deal? Who is victimized here?
Now, what I am saying is that, at any time there is this gender ratio imbalance, polygyny (polygamy) is intellectually fine, it is not against civilization. In fact, opposing it in such a situation is sadism. Are we taking along sadism in our modern civilization? The only challenge, which monogamy also faces, is having responsible men accepting marriage. Responsible men should not be programmed to hate polygyny (polygamy), which the current circumstance requires, while irresponsible men take charge of the most precious human institution. Polygyny (polygamy) cannot be for every man in any generation because marriage is not for heartless or lazy people, how much more polygyny (polygamy).
Ishiusah on Nairland
I’ll have to admit I had severe reservations as I sat down and watched Lisa Ling’s Our America episode on plural marriage. I mean what kind of crazy person would purposely allow their spouse to engage in relations with another woman. And how selfish those men must be to try and have their cake and eat it too. But as I watched the episode I realized something. The people, at least in the community Ling was interviewing, are really truly committed to each and every person in the relationship. The wives seem to form emotional bonds and friendships with each other and often spend more time together than with their husband.
And here’s something that really took me by surprise, it’s the women that actually control the relationship, they get to decide what man they are going to marry and it’s up to the elders to make it happen. As I watched the interviews I discovered that plural marriage isn’t necessarily something that should be shunned, it could possibly be a way to balance and possibly decrease the rate of divorce in America.
I know you are probably thinking I’m crazy right now, but hear me out for just a second.
It is estimated that roughly 30 to 60% of all married individuals (in the United States) will engage in some form of infidelity at some point throughout their marriage and that 2-3% of all children are the product of infidelity (source: Buss and Shackelford).
The U.S. Census Bureau in November 2009, estimates that there are approximately 13.7 million single parents in the United States today and those parents are responsible for raising 21.8 million children (that’s about 26% of children under 21 in the U.S. today).
U.S. News and World Report magazine reports that one-third of children born today are illegitimate and half of those children live in poverty.
In a plural marriage no one is left alone to raise their children as a single parent because if the husband isn’t around, the wives still have each other to help raise and support their children, both financially and emotionally. You have a support system at ALL times, not just on a court ordered schedule.
Legalizing plural marriage can potentially reduce the divorce rate and decrease the amount of single-parent households and most important, may even reduce the amount of illegitimate children born in the United States.
What would you do if plural marriage became legal in the United States? Keep in mind that for every 100 single women of marriageable age in the United States there are fewer than 70 single men, and as we get older the numbers spread further apart. That means statistically if marriage is still considered only a monogamous relationship, there will always be more women than men which probably means there will always be infidelity in what we are calling monogamous relationships.
Do you think the government should reconsider their stance on plural marriage? Could this be a way to save the American family?
December 12, 2011