What Exactly is Wrong With Polygamy?
Thanks to Concurring Opinions for inviting me back to blog this month. I look forward to your comments.
I have been thinking a lot about polygamy lately. As I prepare to teach Family Law once again, I am confronted with polygamy everywhere I turn. First, the third season of Big Love, the HBO series about a Utah entrepreneur struggling to support and “satisfy” his three wives and eight children, begins next week. Second, last April, the Texas Department of Family and Protective Services removed 468 children from their homes in a polygamous ranch. Although the Texas Supreme Court ordered the children’s return to their parents after finding no immediate danger warranting emergency removal, child protective services has continued its investigation in a handful of cases. Third, I have been following Professor Angela Campbell’s research on the polygamous community of Bountiful in British Columbia, which has challenged some of my assumptions about polygamous wives. Finally, I recently learned that polygamy is practiced in the U.S., not only by members of a fundamentalist Mormon sect in Utah, Arizona, and Texas, but also by Black Muslims and African immigrants in New York and Philadelphia. This brings me to the question I would like to raise: What exactly is wrong with polygamy? I will discuss some frequently made arguments and look forward to reading yours.
Polygamy is illegal in all 50 states. Yet, it is estimated that 50,000 to 100,000 men, women, and children live in polygamous households in the U.S. Most polygamists do not enter into plural marriages for purely personal reasons, but rather are guided by religious beliefs. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (which broke with the Mormon church in 1890 when the latter disavowed polygamy) believe that only men who have at least three wives will enter the highest level of heaven and that women can only get to heaven if their husbands take them there. The United States Supreme Court, in Reynolds v. United States , rejected claims of religious freedom under the First Amendment to practice polygamy.
Many Americans believe that polygamy is morally wrong, but this view is not universal. Polygamy is legal and widely practiced in many countries in Africa and the Middle East and Islamic law allows a man to have up to four wives so long as he treats them equally. So why are most Americans vehemently opposed to polygamy?
Some people oppose polygamy because they are concerned about the potential for sexual abuse of young girls. Admittedly, some girls entering polygamous unions are too young for marriage (or sexual relationships). Some of the girls who lived in the polygamous ranch in the Texas case discussed above had become pregnant in their early teens. The husbands are often much older, men in their 50s and 60s, or older. Undeniably, many of these “spiritual marriages” are not consensual unions, but sexual abuse (rape) of a minor.
However, polygamy and sexual abuse of young girls do not necessarily go hand in hand. Every state has laws protecting minors from sexual abuse. States can prosecute child predators while allowing consenting adults to enter into polygamous relationships without fear of criminal prosecution. For example, law enforcement agencies in Utah and Arizona have chosen to focus on crimes within polygamous communities such as child abuse and domestic violence rather than polygamy itself.
Sexual abuse is clearly a problem in at least some polygamous communities. However, some adult women freely choose plural marriage. For example, Anne Wilde, a graduate of Brigham Young University and co-author of Voices in Harmony: Contemporary Women Celebrate Plural Marriage, freely chose plural marriage for 33 years until her husband’s death. Should women like Anne Wilde be able to enter into a polygamous marriage without fear of prosecution?
This question raises a second concern. Even if some adult women freely choose plural marriage, does polygamy harm all women? Arguably, polygamy violates the principle of gender equality. Although the term “polygamy” includes marriage to more than one man, such marriages are very rare; almost all polygamous societies practice only polygyny—marriage to more than one woman. Further, most plural wives have no legal protection during or after the marriage. The reason is that most polygamist men have one legal wife and the subsequent wives are “spiritual wives” – they are not legally married. When a spiritual marriage ends before the husband’s death, a spiritual wife has no claim to spousal support or equitable distribution of marital property. Spiritual wives are also not entitled to an intestate or elective share of the husband’s estate, or any of the legal benefits of marriage, including Social Security survivor benefits. While legal recognition of polygamous marriages might remedy these inequities, under current law, polygamist men who are unjustly enriched by their wives’ contributions to the marriage have no legal duty to provide anything in return.
Opponents of plural marriage argue that exposure to polygamy is harmful to children. Texas officials believed that the “culture of polygamy” in the compound was such a threat to the children’s health that immediate removal was necessary. Although the Texas Supreme Court found no evidence to warrant removal, in 1955, the Utah Supreme Court upheld a similar raid on a polygamous community, finding that a polygamous home was an “immoral environment for the rearing of children.” However, some adults raised in polygamous households recall their childhood fondly. One woman who grew up with seven mothers and 60 siblings told the Salt Lake Tribune: “I’ve always considered that I had a fairy-tale childhood . . . I had more close friends and family than most people have acquaintances. It was warm and supportive. You knew you were loved.” Few adults recall their childhood, whether polygamous or not, quite so fondly. However, according to the ABA Journal , many of the attorneys who represented the children in the Texas case thought that the children’s mothers “seemed like great parents . . . Their children were noticeably well-behaved . . . and quite playful.” It is worth noting that the children repeatedly asked to go back home to the polygamous ranch.
We cannot assume that children reared in polygamous households are necessarily worse off than children reared in one or two parent homes. In fact, in recent years, the Utah Supreme Court seems to have changed its opinion that a polygamous home is an “immoral environment for the rearing of children,” and has held that the practice of polygamy does not make a person unfit to serve as a custodial or adoptive parent. In other words, in a custody dispute between a parent who practices polygamy and one that does not, it might be in a child’s best interest to reside with the polygamist parent.
Finally, I would like to return to the argument that polygamy is immoral. Although many Americans hold this view, the Supreme Court has repeatedly held that the majority’s belief that certain conduct is immoral does not mean that it “may use the power of the State to enforce these views on the whole society through operations of criminal law” and Massachusetts and Connecticut allow same-sex marriage despite many individuals’ beliefs that such marriages are immoral. This brings me back to my original question: If there is no evidence that polygamy per se harms children, why shouldn’t consenting adults be allowed to enter into polygamous relationships?