The Strange Politics of Polygamy
A ruling by a Utah judge gives more latitude to polygamous families.That should make liberals and conservatives alike conflicted.
Social conservatives are newly abuzz about polygamy.
Until last week, a Utah statute declared that "a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." In a new ruling, a judge has declared that while marrying Ann when already married to Sue can remain a criminal offense, cohabiting with Ann and Sue cannot. Formal polygamy stays illegal. But so long as a polygamous family doesn't try to acquire state recognition for their multi-spouse arrangement, they can live together, have sex as they please, and procreate without running afoul of any laws. The winner in the case, the star of the reality TV show Sister Wives, reportedly has four wives and 17 children, but only one of those wives is married to him in the eyes of the state.
Some conservatives are arguing that this case vindicates their predictions about the consequences of the sexual revolution. "The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy," Jonathan Tobin writes in Commentary. "Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph."
Actually, while this decision isn't an extension of gay marriage as a matter of logic or jurisprudence, even the judge in the case notes that it is an extension of a gay-rights case, Lawrence vs. Texas, that struck down a sodomy law as a violation of privacy rights. Liberals and libertarians can acknowledge that much. "Having found a constitutional right to privacy invalidating sodomy laws," Rod Dreher observes, "by what logic does one tell polygamous/polyamorous families that the right to privacy that protects gays ... doesn’t protect them?" And he's got a valid point. Liberals and libertarians tend to believe private sexual conduct between consenting adults ought to be beyond the reach of the law. Applying that principle consistently would seem to carve out a decriminalized sphere for polygamous families.
But wait a minute. Don't social conservatives have their own core commitments that, if applied consistently, would seem to carve out a sphere for polygamous families? Aren't polygamous families in Utah engaged in the free exercise of religion? Aren't many ordering their families as they believe God would want them to? Isn't plural marriage an age-old institution with deep roots in the Bible? Confronted with social-science research that says polygamy is bad for children, don't polygamists reply that parents know better than the state what's good for their offspring, and insist they ought to have wide latitude to make decisions about child-rearing?
Polygamists would be helped by all sorts of principles that social conservatives generally champion (not that they urge that those principles be extended consistently). So what do you say, social cons. Should families be free to order themselves on Biblical patterns, according to deeply held religious beliefs, or should the state be able to interfere when its social science data says children are worse off?
Among libertarians, liberals, social conservatives, and progressives, it would seem to me that the last would have the easiest time banning polygamy without contradicting other principled stands that they take: Progressives are the most comfortable transgressing against religious liberty in the name of women's rights and substituting state judgment for parental judgment in the name of advancing child welfare. And when the progressives come to more thoroughly regulate home-schooling, as they inevitably will, I expect that the social conservatives, the libertarians, and the polygamists will invoke the same principles in opposition.