Polygamy 7/14/15

Being of the school that hears the word polygamy and forthwith tires, imagining a competitive household in which it is revealed that under pressure at least one adult participant is nuts, I have never engaged in a discussion of multiple spousing.  And as a lawyer, I have never understood how an argument for polygamy as constitutionally protected could be made.  After all, there is no equal protection argument to be had.  But Kennedy’s loosy-goosy “due process” argument in the SSM case has perhaps opened a door a crack that could have remained slammed shut.  Certainly, Justice Roberts thought so.

So when I stumbled across this article in The Economist, I read it with interest and decided to share it here.

http://www.economist.com/blogs/democracyinamerica/2015/07/marriage-and-civil-rights?spc=scode&spv=xm&ah=9d7f7ab945510a56fa6d37c30b6f1709

I was struck by the author’s notion that it is libertarians who are actually pushing polygamy, and apparently liberals who oppose it.  I thought everybody opposed polygamy except some folks in Utah who have TV reality shows.

I felt vindicated by his citations of studies of the damage one can expect from polygamy, because they seem evident to me.

Nevertheless, I wonder what it will mean to say there is no right to polygamy, while never prosecuting cases and failing to remove children absent reported repeated physical abuse.  See:

http://www.nbcnews.com/id/23993440/ns/us_news-crime_and_courts/t/women-children-leave-polygamist-ranch/#.VaUFIJNVK1E

Frankly, that case was awful.  But that is what it has taken to enforce laws against polygamy in America.

Given three choices – recognizing polygamy, or banning polygamy with enforcement, or without enforcement – what do you think?

 

19 Responses

  1. Ack! I wish you’d started this on a weekend! 🙂

    I have a rather lengthy comment that I’ll try to get written up in fits and starts over the course of the day and post it tonight.

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    • Looking forward to it, ‘Goose.

      BTW, I have no idea what WaPo is planning, and no strong thoughts about it. I have commented at Fix a few times and at PL a few times. Seems the way to do it on my combo of laptop and browser is to write a comment in a text editor and then copy-paste it to the website while holding the scroll with “pause new comments”.

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  2. I can think of no limiting principle other than the “ick” factor, and we all agree that is not a good enough reason.

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    • George, what about the evidence that most polygamous marriages are bad for the women and bad for the kids? It seems to be well documented.

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  3. I don’t see how that’s relevant. abuse can happen in any situation.

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    • NoVA, are you arguing that a pronounced statistical elevation of abuse in polygamous households is irrelevant, because stats should not be applied as evidence in any individual case?

      Is your presumably libertarian view that if only one polygamous marriage were not abusive than all should be lawful? Would you prefer legislative permission of polygamy in a state, or the status quo, in which quiet polygamy is not prosecuted?

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      • McWing:

        Kids do worse in divorced families, should we ban divorce? How about banning no fault divorce?

        It should either be much more difficult to get divorced when children are involved or there should be no state sanctioned marriage in the first place. The state’s only legitimate interest in promoting marriage lies in the role marriage plays in creating the best environment for child-rearing. If the state is not going to act to promote and protect a father/mother environment for child-rearing, it shouldn’t be involved in the first place.

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  4. Kids do worse in divorced families, should we ban divorce? How about banning no fault divorce?

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    • The amplitude of “worseness” is much greater in polygamous marriages, it is said.

      So are you viewing this as a freedom of consenting adults to contract issue?

      Do you think a state lege should permit polygamy, or should authorities just overlook it as benign, absent criminal complaints of physical/sexual abuse or wilful child neglect/abandonment?

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  5. “I was struck by the author’s notion that it is libertarians who are actually pushing polygamy, and apparently liberals who oppose it.”

    I think *most* liberals oppose polygamy on only two fronts: (A) they saw it as a bridge too far, and impediment to achieving the immediate goal of SSM if it was any way attached. So liberals of today were no more interested in tying polygamy to SSM than they would have been interested in tying SSM to interracial marriage back when there were still anti-miscegnation laws. Once a sufficient amount of time has passed, a contingent of liberals (certainly not all) will be on board with polygamous marriage as just another way to show families come in all shapes and sizes.

    (B) Polygamy is often looked at as the apostate-Mormon/religious cult variety, featuring one (normally crazy and/or abusive) man with a harem of wives. So there’s a definite ick factor there for most people. Any imagery of polygamy that smacks of one guy being orbited by multiple wives will work against legalized polygamy for the left generally and feminists in particular.

    Then there is the practical issue: there are a lot more gay people who want to marry one particular person than multiple people who wanted to be married to one person or multiple people. There are a lot of practical problems with polygamy that make it unattractive to most people (some people feel that current marriage laws allow for one spouse too many) and the benefits of polygamy aren’t that great, and potentially open to abuse, as one or a few partners support a bunch of moochers, among other things.

    In a time when one might want a lot of people to maintain the household and work the farm before the children were old enough, marrying several wives might have made some sense, assuming they all pulled their weight. In the modern era, all you need is one partner to raid the bank accounts and run up the credit cards to end your polygamous utopia, and each partner you introduce to the marriage makes that more likely.

    In an era when married couples have no children or carefully control their child output to one or two, having the ongoing potential for multiple pregnancies during the co-marriage seems like an unattractive risk to most folks, as well. So you end up with a group that, in reality, is severely marginalized. To whit: I’ve known dozens of gay couples over my life, living together as “roommates” or “fellow bachelors” or “two out gay guys”. I’ve yet to run into equivalent off-the-books polygamous triples or quadruples or whatever. While I know they exist, they are so rare in the wild in terms of a normal relationship arrangement that the demand for polygamy seems like it will be vanishingly small, by comparison to SSM.

    Even so, as a strike against the patriarchal hegemony of the traditional nuclear family, I think many liberals would ultimately support it or not fight it if the “new polygamy” involved say, three women marrying each other or four men marrying each other or two men marrying one woman. Not all, because of ick factor and worry that two men would oppress the one woman or that one man and multiple women would be getting more benefits from the marriage than he was returning, but still. I think libertarians and liberals will eventually be (mostly) united on the issue, just that liberals won’t be fully on board until SSM is non-controversial in most places . . . which is just a matter of time. The taboo against homosexuality is one it’s way out, and the more generational churn there is, the less controversy there will be.

    Then, the question will be: who am I, a man, to tell a woman how many people of what sex she should be allowed to marry? And then the right to marry as many people as you want will be discovered somewhere. And some people will take advantage of it.

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  6. “So are you viewing this as a freedom of consenting adults to contract issue?”

    I am. I think they need to sanction it out of fairness. now the “marriage” can mean whatever we want, i see no reason to restrict it to a couple. I think the state has a legit interest in protecting children. but i don’t think it can set the terms for how families arrange themselves. but to be fair, i’d scrap all of marriage and require families to file their indvidualized marrige contracts with the state

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  7. @markinaustin: “The amplitude of “worseness” is much greater in polygamous marriages, it is said.”

    Well, perhaps for women, but you can’t address the “kids” issue as an attack of polygamy because it’s too close to the problems of growing up with only two daddies or two mommies. It is too close to venerating the one man, one woman structure.

    There is also the argument that “of course it’s worse, because it’s not legal” and that you can’t compare David Koresh to a suburban soccer mom with two husbands that get to live a nicer lifestyle off their three incomes. That’s TOTALLY DIFFERENT.

    Again, I think it’s the demand here that will keep polygamy illegal for a good long while. There just aren’t that many people demanding to get married to a third (or fourth, or fifth) person, and real life polygamy won’t be religious-cult polygamy. You won’t just get the youngest and prettiest girl in the community given to you because you’re the spiritual leader. You’d have to get everybody talked into it, and they’d all have to volunteer. And if you’re a prize, why do I want to share you? And if you’re not, why do I want to let you in on my marriage?

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    • Yep, Kevin, as I wrote, just thinking about it is tiring.

      The polyamorous communities of the late 60s that sprang up in many locales simply could not sustain. Even without laws, they were too complicated. Try giving them a legal overlay – property rights, custody rights, and the like, and the model as for marriage in community property states is partnership law.

      http://www.uniformlaws.org/shared/docs/partnership/upa_final_97.pdf

      Enjoy.

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  8. Mark:

    And as a lawyer, I have never understood how an argument for polygamy as constitutionally protected could be made. After all, there is no equal protection argument to be had.

    How is the equal protection argument any different from the one made regarding SSM?

    But Kennedy’s loosy-goosy “due process” argument in the SSM case has perhaps opened a door a crack that could have remained slammed shut.

    I ask this in all seriousness, and not just rhetorically: Do you really think that in politically charged cases, as a polygamy case would surely be, the legal arguments made by the lawyers play any part at all in how individual justices vote and how SCOTUS eventually rules?

    Given three choices – recognizing polygamy, or banning polygamy with enforcement, or without enforcement – what do you think?

    I think we should have all three, depending on how individual states want to handle the issue. In my own state I would prefer banning it. I’m not sure what you mean by enforcement. If enforcement means not issuing a marriage license to someone who is already married, then I am in favor of enforcement. If enforcement means raiding people’s homes who are suspected of living in a polyarmorous arrangment akin to polygamy, I am against it.

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    • How is the equal protection argument any different from the one made regarding SSM?

      Equal protection = either gender equality or orientation equality. Neither applies to arguing for plural marriage. The plural marriage argument would probably be grounded in freedom to contract [now combined with “fundamental right to marry” and Kennedy’s muddled due process argument].

      Do you really think that in politically charged cases, as a polygamy case would surely be, the legal arguments made by the lawyers play any part at all in how individual justices vote and how SCOTUS eventually rules?

      Yes. But generally in the sense of trying hard not to make a decision with unforeseen consequences in other areas. There is an old saying that “hard cases make bad law”, which applies to politically charged cases, as well.

      I agree that a state should have, or arguably has, the authority to permit plural marriage – that Reynolds was too sweeping. I asked the questions as legislative preferences and you answered them fairly and fully. I too would want TX to ban it and I think also that “enforcement” could be relaxed, perhaps with no actual criminal penalty for bigamy. The civil implications are more complicated – what rights does the illegal spouse have wrt property, especially, both before and after dissolution of the relationship, and are children of the illegal spouse as well protected? Do we make partnership law formally applicable?

      I hope so few people want to even try this that the cases are few and far between.

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      • Let me provide an example of “hard cases make bad law” in the political context.

        Gore v. Bush/Bush v. Gore reached substantially the correct result, but the wrong way, and for the wrong reasons.

        The applicable constitutional and election law would have put the decision in the Congress where presumably Bush would have been elected President and Lieberman would have been elected VP.

        Three justices wanted to end the process to avoid a chaotic result. Two were correctly pissed that the FL Supremes had ignored their previous mandate. And the four in the minority didn’t want the matter decided by Congress, either. It did not help that since both sides of the case wanted to avoid a congressional solution they did not even brief it. Still, the law was plain enough that I am sure all the clerks caught it.

        To avoid “hard cases make bad law” they actually ruled that the case could never be cited as precedent!

        [Thankfully]

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      • Mark:

        Equal protection = either gender equality or orientation equality.

        I guess since I find the argument that marriage as historically understood was somehow a violation of equal protection on either of those grounds to be pure sophistry and entirely bogus, I don’t understand why an additional bogus argument would be any different. Just because we don’t have a label like “orientation” for the preference to have sex with a certain number of people doesn’t mean that discrimination against that preference is any different from discrimination against the preference to have sex with a certain gender.

        Let’s call the tendency to prefer a certain number of partners “numeramory”. If it is discrimination against a particular “orientation” to define marriage as a union between one man and one woman, why isn’t it discrimination of an equal order against a particular “numeramory”?

        Yes. But generally in the sense of trying hard not to make a decision with unforeseen consequences in other areas.

        The presumption there is that future decisions are a logical consequence of current decisions. I think SCOTUS has made it pretty plain that such a premise is no longer really justified with regard to politically charged cases. They will do whatever they want. I guess they will attempt to frame their opinions in such a way as to maintain the pretense that the opinion is based on principles that might be applied to future situations. But I think it really is just a pretense.

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        • The presumption there is that future decisions are a logical consequence of current decisions.

          No, the presumption is that lower courts have to apply the rulings. While there is never certainty in litigation [that is why there are two or more litigants to begin with] courts and lawyers want a high level of predictability in the law.

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        • Mark:

          No, the presumption is that lower courts have to apply the rulings.

          Sure, but the problem is how to apply them to previously un-litigated situations. It isn’t difficult for a lower court judge to know how to apply Obergefell if a state refuses to grant marriage licenses to SSM within its borders. A single sentence opinion would have sufficed as guidance: “We hereby declare that the constitution grants a right to SSM throughout the nation.” The issue is how to apply the logic of Obergefell to new, potentially analogous but not identical situations. And, again, the presumption is that there are underlying principles to SCOTUS decisions that are applicable universally to similar but not identical situations. I don’t think we can presume that any more. SCOTUS will clearly dispense with previously existing principles articulated in previous opinions (and the constitution) if doing so is necessary to achieve a politically desired result.

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