POLYGAMY: Mary Lyndon Shanley

...One way to think about the differences in these two approaches is to consider whether polygamy should be legalized in the United States. As Boston Globe columnist Jeff Jacoby asks, "If the state has no right to deny a marriage license to would-be spouses of the same sex, on what reasonable grounds could it deny a marriage to would-be spouses . . . who happen to number three or four instead of two?" Would a continuation of the ban on plural marriage simply shift the boundary between who's in and who's out?

For contractualists, the case for a right to plural marriage is straightforward: it expresses individuals' rights to form affective and sexual relationships free from state interference. Martha Fineman said in 2001 that "if no form of sexual affiliation is state preferred, subsidized, and protected, none could or should be prohibited. Same-sex partners and others forming a variety of other sexual arrangements would simply be viewed as equivalent forms of privately preferred sexual connection." The law would have to be gender-neutral, allowing marriages with plural husbands as well as plural wives. But as long as protections against coercion, fraud, and other abuses that invalidate any contract were enforced, people could choose multiple marriage partners.

Proponents of the equal status conception fall on both sides of the question. Laurence Tribe, supporting legal recognition of polygamy, asks rhetorically in American Constitutional Law whether the goal of preserving monogamous marriage is "sufficiently compelling, and the refusal to exempt Mormons sufficiently crucial to the goal's attainment, to warrant the resulting burden on religious conscience." Peggy Cooper Davis condemns in Neglected Stories the "cultural myopia" that led the Supreme Court to outlaw Mormon polygamy in Reynolds v. United States in 1879, and argues that a principled objection to polygamy in a multicultural society would require more than "a political majority's wish to define and freeze the moral character of the polity." But the flaws in the Reynolds decision do not mean polygamy should be legalized. Many people are convinced that polygamy is profoundly patriarchal. The "larger cultural context of female subordination" is too deeply rooted and strong even for gender-neutral principles that allow both women and men to have more than one spouse to overcome its effects. In this view, plural marriage reinforces female subordination and is unacceptable on grounds of equality.

The answer to the question, "If we legalize same-sex marriage, won’t we have to legalize plural marriage?" is not, then, an obvious "yes." Equality as well as liberty is implicated in marriage law and policy. In assuming the equal agency of the parties to the contract, the contract model leaves aside the question of whether choices themselves may lead to subordination. In order to decide whether plural marriage should be legalized, one must address the question of whether polygamy can be reformed along egalitarian lines. Equality must be a central attribute of any marital regime based on considerations of justice.

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posted by Eve at 6:17 PM VOTE

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