Polygamy has had a checkered past. Occasional, standout news reports remind us of some of the more incestuous, dangerous, and downright cuckoo polygamous communities out there in America. [See: Warren Jeffs story, here]. Yet there was a time when the practice was not such a fully fermented display of outcast perversion. There was a time when at least some unorthodox yet functional polygamous families occurred and survived -- not accepted by most, a bit odd in their ways, but a lot safer, and yes, consensual, than we might have believed. Then came Reynolds v. United States, the dusty old 1878 Supreme Court case that upheld a state prohibition of polygamy. Reynolds is still good law, upheld recently in Oklahoma, here. This got me thinking. I wanted to revisit polygamy: to interrogate the charges against it, and to question the justifications commonly advanced in support of state laws that have outright barred it. I was unconvinced then, as I am now.
Last week, a Canadian trial court judge upheld a law that criminalized polygamy [You can find a discussion of the case here, and, as criticized by a feminist Canadian reporter, here.]. The judge graciously recognized that the criminalization infringed on a practice central to the faith of those protesting the law in court. Still, even though this case is based on an entirely different national constitution, it aptly echoes U.S. states' key justifications for barring the free exercise of polygamy. Justification One: Harm to women and children who are encouraged or even coerced to partake of this family practice. Justification Two: The harm done to marriage (and all its attendant benefits) as society traditionally agrees it ought to be. For elaboration of #2, and other moralizing canards, check out Justice Scalia's disfavored dissent in Lawrence v. Texas.
But first, a rapid segue into Free Exercise Clause doctrine (You knew this was coming). The Supreme Court indelicately gutted the Clause in Employment Division of Oregon v. Smith (1990). Smith did away with strict scrutiny review, favoring instead a standard whereby courts must allow a law infringing on one's freedom to practice conduct central to one's faith, so long as the law is of "general applicability," and that it was not written with the purpose of unfairly targeting religion. Setting aside the fact that divining true intent from a legislature can be the most foolish of fool's errands, post-Smith states would need to make much less of an effort to courts to justify the prohibition.
It wasn't a death knell for the Free Exercise Clause. But it came as close to death as could be expected. Yet because I have poetic license, I will assume for the rest of this post that we live in a pre-Smith world. I would like to examine the harm justification one more time, to test its veracity and virtue.
As stated, we have seen how harmful polygamous marriages can be in America: dangerous communities where fourteen-year-olds are married to and pregnant by their uncles; cultish societies where women are coerced into abusive marriage arrangements that flout the concept of mutual love and respect. These places are rife with rape, abuse, and incest. Moreover, from a feminist perspective, even single-family instances of polygamy offend the sensibilities of many enlightened observers. Just how far removed are such marriages from the kinds of antiquated arrangements of past centuries, where wives and women were like so many kinds of chattel? To many feminists, a woman cannot be on equal footing where she is but one of many options for the male head of the family.
Yet can we be sure that all instances of polygamy are and must be like the commune situations above? If not --if we agree that polygamy is not necessarily equated with such harm to women and children-- can we confidently allow a state to bar all instances of the practice? Even those marriages that, while unsettling to our modern sensibilities, are run in safe and more or less fruitful ways? Now, I have not done the research on the extent and severity of harm in the entire practice of plural marriage. And space does not permit me to expound upon it if I had. Yet what I have read suggests that there are instances where single families choose plural marriage (either in secret or in those countries that do not prohibit it) in ways that society may find troubling, but which nonetheless can provide love and support for the spouses, and for their children. Without knowing the answer, I posit the fundamental question: Are the harms of polygamy because of polygamy itself, or because of some of the ways it is practiced? This article suggests that the harms discussed by the Canadian judge are overstated, and reflect only part of the story.
A corollary question is this one: To the extent that polygamy is harmful to women and children, are those harms different in kind from the harms that come from traditional, two-parent, heterosexual marriages? Consider the fact that a great many marriages today, those that involve only a man and a woman, are deeply flawed -- whether they involve child abuse, spousal abuse, a home without real love, or any of the myriad instances where a woman’s place is a subordinate one. The polygamous communes aside, are those dysfunctional marriages less serious than the claimed dysfunctions caused by polygamous marriages? I am not saying they are not. But can you be sure they are? I am asking for proof here.
An interesting, if imperfect, analogue is the Muslim headdress case that we discussed in class [discussed here]. In that case, in Turkey, young Muslim women were prohibited from wearing traditional headdresses to school because they disrupted the school's and society's more secular-based concerns. The case sorely tested core principles of Free Exercise, and flexed quite a bit of paternalistic muscle over Muslim women in the process.
Many of us recognize that in most instances, women wearing a niqab, or a burqa, choose to do so -- as a matter of modesty, and as a matter of allegiance to their faith. But in some cases, there are harms there too. In some more fundamentalist circles, women are forced to wear headdresses (at threat of violence or public shame) that make them inseparable from other women, or that require that they subordinate their sexuality. Are those genuine harms enough to ruin the principle of religious freedom for women who choose this course of action? These extreme cases might require at least some observers to imagine an impossible choice between paternalism on the one hand, or feminism on the other.
Just how different are headdress cases from those of polygamy? Clearly, there are well-chronicled harms in each instance. And there are situations in each where women choose paths of their own, even though they might unsettle some who would find that same path unacceptable for themselves. Of course, the glaring difference here is that polygamy is not in fact practiced in the same widespread and streamlined way that Muslim headdresses are. The truth is that polygamy in America, having been banished and stamped out for so long, almost always appears in its ugliest and most reviled form. It is hard to make the case for how polygamy can be practiced, when how it is practiced is almost always so divorced from that possibility.
That comparison aside, my most compelling critique of polygamy prohibitions is this: If the severe and damaging cases of polygamy are enough to warrant their prohibition, even at the expense of the well-adjusted polygamous marriages out there, why not target the crimes that make those communes so dangerous? Incest, statutory rape, tax and welfare fraud -- these are all common in some American polygamous communes. So why target polygamy? Instead of applying an anti-polygamy law of "general applicability," why not apply in their place specific criminal laws of general applicability? The state would target those individual crimes, in two-parent families as much as in multi-parent families. If the criminal laws disproportionately affect polygamous communities, let the offenders make the bogus claim that statutory rape and spousal abuse are conduct central to their Mormon religion.
Now, strict scrutiny may be gone for polygamous families seeking to litigate. And, under Smith, it still must be shown that a law barring polygamy is motivated by a purpose to discriminate against a religion. That is hard to show. What I have aimed to do here (again, admittedly without any supporting data) is to ask whether the neutral justification of protecting women and children is sufficient and sincere. And, if it is, if barring the practice of polygamy on the whole is the best way to go. Perhaps, if Congress were to create an exemption for plural marriages (not likely to happen), it would give the practice some room to breathe. Polygamy would not flourish with abandon; for good reason it is not the favored route. Yet perhaps then it could exist in peaceful, consensual, and safe environments, where love and support could be exercised as they are in two-parent families.
Finally, in parting, consider the analogue of gay marriage. Now, many would argue that this is no comparison at all. There is a clear and commonsensical line to be drawn between the two, it is argued. Yet the Prop. 8 litigation and, in part, Lawrence v. Texas demonstrated that marriage is a fluid concept, and that marriage as it "ought to be" is a flawed institution that needs protection only from itself. I'm not saying that those cases demand that we recognize a fundamental right to plural marriage. Yet ask yourself whether there is not a society out there where it is or can be fundamental to many. From what I gather, until the anti-polygamy law was enacted in British Columbia, that right was exercised safely and peacefully by at least some Mormons. How do we know those wives and their children won't turn out okay in the end?