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On the surface, and with the most shallow of analyses, polygamy would seem to be protected by the First Amendment freedom of religion clause because polygamy in the United States is mainly a phenomenon among specific religious groups -- namely Mormons, fundamentalist Christians, and Muslims (Turley). In fact, even a polygamous marriage that was not rooted in religious tradition could be protected under the Due Process clause, which basically encompasses right to privacy (Hamilton). Indeed, the state of Utah's Supreme Court and the Supreme Court of the United States have heard numerous cases related to the constitutionality of polygamy. According to Turley, "Utah and eight other states make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute plural families." Yet as many as 50,000 cases of polygamy currently exist in the United States (Turley).
The stigma against polygamy remains strong, and has been powerfully in place since the rise of Mormonism in the late nineteenth century in the Western Territories. Hamilton notes, "When Congress outlawed polygamy in the Territories in the Nineteenth Century, its motive in part was to suppress the Church of Latter-day Saints -- which at that time believed in the sanctity of polygamous marriages." The stigma against this seemingly primitive family structure remains. "Modern anti-polygamy statutes, the argument holds, continue to bear this taint," (Hamilton). Ironically, the most Christian of Americans might uphold the Bible as being the ultimate bearer or moral truth and yet still deny the rights of Mormons to enjoy plural marriages. The Hebrew bible espouses polygamous marriages.
Polygamy is a social institution that carries heavy political weight. The institution implies patriarchy, because almost always the term refers to polygyny: having more than one wife. However, patriarchy has been the dominant social, political, and economic structure regardless of how families are organized. Women have been repressed in monogamous as well as polygamous relationships. The argument that polygamy represses women is no longer tenable.
Likewise, polygamy is not the sole domain of domestic abuse practices. "There is nothing uniquely abusive about consenting polygamous relationships. It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families," (Turley). The Browns are among the most famous polygamous families in America, thanks to the Discovery Channel/TLC's production called Sister Wives.
Sister Wives is a reality show on TLC, profiling the story of Kody Brown and his many wives -- four from the last count. The Browns are partly using the media attention to feature polygamy as a potentially normative family structure. After all, the wives appear no more or less happy than any other in America. Jealousy does arise; but probably no more so than it would in any other relationship. As Hall notes, the introduction of mistress Robin on the scene causes some problems in the plural marriage. Some of the wives are brought to tears, but the scenario is all simply human rather than being a unique feature of Mormon polygamous society.
When polygamy is broken down into its constituent parts and analyzed in light of modern -- postmodern -- American society, the practice seems at least tolerable. Even if distasteful, polygamy should be considered a matter of personal freedom. Polygamy does not even need to be framed in a religious context for it to be defended under constitutional law.
In a polygamous relationship, there are unique relationships between the wives, as well as between the husband and each individual wives. "Each husband-wife pair in a plural family achieves a unique and distinctive relationship from other couples in the family" (Altman and Ginat 337). When viewing Sister Wives, these individual relationships are apparent, as differential dynamics emerge between Kody and each of his wives. Christine, Meri, and Janelle all seem as happy as wives in any other patriarchal marriage situation. As Altman & Ginat put it, the wives in a plural marriage "communally facilitate or detract from each others' relationship with their common husband" (337).
Because polyandry -- more than one husband -- is less common, polygamy seems like a completely sexist institution. Also because polygamy is associated with religious and cultural backwardness, the family structure is frowned upon on general. Although Hamilton claims that "anti-polygamy laws were -- and are -- facially neutral: They apply equally to secular and religious polygamists," the truth remains that in the United States, polygamy is associated with Mormonism. If polygamy is not used in the context of Mormonism, then it is used within the context of some other religious conservatism such as Islam in Saudi Arabia. Polygamy was outlawed in the United States in 1878, with the U.S. Supreme Court decision in Reynolds v. United States. Utah remained a holdout because of its substantial Mormon population, which has experienced stigmas and lawsuits due to polygamy.
Framed within a 21st century discourse, polygamy deserves to be viewed as a facet of libertarian ethics. "Opponents of gay rights often warn that legalizing same-sex marriage would inexorably lead to legalizing polygamy. Maybe it would, and maybe it should. Denying gay couples the right to marry violates state constitutional guarantees of equality, as the California and Massachusetts high courts have rightly ruled," (Kaminer). The gay marriage argument is a bit like comparing walnuts to filberts, but the fact remains that many Americans still find homosexuality about as distasteful as polygamy. Individual heebie-jeebies should never inform the law, and should never infringe upon the rights of human beings. As Turley puts it, "it is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and 'cohabits' with those partners, it is considered a crime," (Turley).
Americans accept serial monogamy, with its attendant problems, but cannot accept stable polygamy or stable homosexual monogamy. The priorities of the nation in terms of its social norms are radically skewed. Polygamy, it is safe to say, is as stigmatized as gay marriage. Whether framed as a religious tolerance (First Amendment) position or as a Due Process (Fourteenth Amendment) position, polygamy and gay marriage both deserve to be recognized as some of the inalienable rights and freedoms that Americans enjoy. "We should fight for privacy as an inclusive concept, benefiting everyone in the same way. Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith," (Turley). Of course, the United States has a long way to go before eliminating social justice hypocrisy. The War on Drugs should have been obliterated a long time ago, and so too should discrimination against those who would engage in alternative lifestyles including plural marriage. As long as the plural marriage is completely consensual without any coercion, and the women involved in polygynous marriages are able to divorce if they so choose, then the Constitution certainly protects those rights.
The United States Supreme Court seems to have taken a stance against polygamy that contradicts constitutional law. In 2007, the Supreme Court refused to hear a challenge to Utah's anti-bigamy laws ("Should Polygamy Be Legal?"). The decision to deny this hearing is "hard to justify," in light of the First Amendment ("Should Polygamy Be Legal?"). Polygamy is mainly, but not exclusively, a Mormon phenomenon in the United States. In fact, polygamy has become a fringe practice even within the Mormon Church, which publically condemns it. Only fundamentalist Mormon and a rare few other religious sects like the Quiver Full movement practice polygamy (Altman and Ginat; Hall). Ironically, the Mormon Church is saner on its political stance than the United States Supreme Court. The Mormon Church condemns gay marriage as well as plural marriage (Hall).
Because plural marriage is against the law, those who do practice it do so underground. Polygamous families have been known to declare one man-women union as legal, only to have the other "sister wives" collect welfare as single mothers (Hall). Such manipulative abuses of the system are irrelevant, though, when considering the legal implications of banning plural marriage.
Plural marriages are surely problematic from a sociological and psychological standpoint. In almost all accounts of the actual lifestyle of "sister wives" engaged in plural marriages, female independence is suppressed. Altman and Ginat describe in detail the period of adjustment the new wives go through, and their sacrifices of personal freedom and rights. There is a head wife: one who determines the social order in the household and one who also decides upon everyday living issues from home decorating to chore task designation. The TLC show Sister Wives also explores some of the more mundane aspects of life in a plural marriage. Clearly patriarchal, the marriage entails having a husband who has a harem of domestic servants. There are "flexible rotation systems" in terms of sexual relations (Altman and Ginat). In spite of…[continue]
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