Polygamy, Privacy, and Constitutional Rights in the US

Constitutional Protections and the Legal Status of Polygamy

On the surface, and with even a shallow analysis, polygamy would seem to be protected by the First Amendment's 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 not rooted in religious tradition could be protected under the Due Process clause, which broadly encompasses the right to privacy (Hamilton). Indeed, the Utah Supreme Court and the United States Supreme Court 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 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 publicly condemns it. Only fundamentalist Mormons and a rare few other religious sects — such as the Quiver Full movement — practice polygamy (Altman and Ginat; Hall). Ironically, the Mormon Church is more consistent in its political stance than the Supreme Court: it condemns both gay marriage and plural marriage (Hall).

Historical Stigma and Religious Roots

The stigma against polygamy remains strong, and has been firmly 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 persists. "Modern anti-polygamy statutes, the argument holds, continue to bear this taint" (Hamilton). Ironically, the most devout Christians might uphold the Bible as the ultimate bearer of moral truth and yet still deny the rights of Mormons to enjoy plural marriages — even though the Hebrew Bible itself espouses polygamous marriages.

Polygamy was formally 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 faced ongoing stigmas and legal challenges as a result of plural marriage practices. Although Hamilton claims that "anti-polygamy laws were — and are — facially neutral: they apply equally to secular and religious polygamists," the reality in the United States is that polygamy remains closely associated with Mormonism, or with other forms of religious conservatism such as Islam in Saudi Arabia.

Patriarchy, Gender, and Plural Marriage

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 uniquely represses women is therefore no longer tenable.

Likewise, polygamy is not the sole domain of domestic abuse. "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). Because polyandry — having more than one husband — is far less common, polygamy can appear to be a completely sexist institution. Its association with religious and cultural conservatism further fuels social disapproval. Yet plural marriages are surely problematic from a sociological and psychological standpoint as well. In almost all accounts of the actual lifestyle of "sister wives" in plural marriages, female independence is suppressed. Altman and Ginat describe in detail the adjustment period new wives undergo and the sacrifices of personal freedom they make. There is a head wife who determines the social order of the household and decides on everyday issues from home decorating to the delegation of chores. Clearly patriarchal in structure, such marriages can resemble a domestic arrangement in which a husband maintains a household of domestic partners. There are "flexible rotation systems" in terms of sexual relations (Altman and Ginat); yet in spite of this, few polygamists — male or female — admit to unconventional sexual arrangements occurring (Hall).

Nevertheless, the women involved in plural marriages are legally free to extricate themselves from their situations. Their decision to join fundamentalist churches is one of free will; if it is proven otherwise, the courts may step in to protect individual rights and freedoms. Whether religious indoctrination itself should be regulated is a separate question — but the United States Constitution does protect freedom of religion.

Polygamy, Gay Marriage, and Libertarian Ethics

Framed within a 21st-century discourse, polygamy deserves to be viewed through the lens 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 comparison between gay marriage and polygamy is imperfect, but the fact remains that many Americans still find homosexuality about as distasteful as polygamy. Personal discomfort 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 nation's social priorities 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 expressions of the inalienable rights and freedoms that Americans are meant to 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. As long as a plural marriage is completely consensual, without any coercion, and the women involved in polygynous marriages are able to divorce if they so choose, the Constitution should protect those rights. When polygamy is broken down into its constituent parts and analyzed in light of modern — indeed postmodern — American society, the practice seems at least tolerable. Even if one finds it distasteful, polygamy should be considered a matter of personal freedom that need not even be framed in a religious context to be defended under constitutional law.

Conclusion: A Legal and Moral Conundrum

The issue of plural marriage is a legal and moral conundrum. On the one hand, polygamy is a matter of choice as well as a matter of personal privacy and freedom. These freedoms can and should be protected by the United States Supreme Court under the Constitution. On the other hand, the Supreme Court frequently interprets constitutional provisions in ways that reflect prevailing social norms. The Court has determined that plural marriage is "in violation of social duties or subversive of good order" ("Should Polygamy Be Illegal?"). This decision was undoubtedly a difficult one to make, and the tension it reflects — between individual liberty and collective social norms — remains unresolved in American law and culture.