Polygamy Laws Expose Our Own Hypocrisy

Published 10/3/2004

Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

20 thoughts on “Polygamy Laws Expose Our Own Hypocrisy

  1. Dear professor, My name is Fabio, I am a Lawyer in Brasil. I have been working on an article which deals with the problem of polygamy. In Brasil, eve though we have a roman civil-law system, there are decisions in favour of recognition of homosexual or more properly based the affection between people of the same sex. The courts have used maily the work of foreing jurisdoctors, such as Dworkin or Alexi, to reduce the power of the written law, in order to apply constitutional principles. The first decision os the Brazilian Supreme Court (www.stf.gov.br) was based on the principles of “dignity of the human being”, “right to persue hapiness”, “equality of rigths” and so on. I am having a hard time in findind jurisprudence on polygamy cases, and I would really appretiate if you could help me.

  2. Partly the things that make a person detest polygamy possibly, is ignorance on the subject of relationship psychology.

  3. If religion is/has been the basis for prosecution of plural marriage then we might consider a further separation between church and state?

    Religion. particularly,so called christian values used by the courts to substantiate their actions against individuals means that we might do better to get the state entirely out of the bedrooms of the land and let marriage be a legal union bewtween parties however those parties might be defined. Then gays and lesbians and traditional twosomes and plural arrangements of all sorts might be achived.

    -Steve.

  4. I’m with Steve.

    Marriage is two things.

    1) A bond between people that has nothing to do with paper.

    No laws will ever govern the vagaries of the human heart. People will love what and who they love. It is simply the way of things.

    2) A contractual relationship.

    The general rule in contracts is that if it’s not illegal you can contract for it. Ergo, restrictions on marriage forms is a public policy decision. In this case, a public policy decision that is prime facie biased and unfair and based on religious reasoning, not scientific fact. Governance to be good must be based in reality, not wishful thinking.

    I have stated why I’m against polygamy. I was also explicit in that it was my choice, for me. If others want to live in an arrangement that I think is a disaster waiting to happen in most cases, I’m happy to let them do it as long as they don’t try to force me to come along. And I am really, really sorry for that pun. But I digress and lie about being sorry. What other pair bondings humans choose to engage in is their business unless it involves children (universally acknowledged to be evil behavior) or the dead (ditto plus a HUGE public health hazard).

    It quite simply not my business IN EVERY EQUITABLE AND LEGAL SENSE OF THE WORD. I’m not a party to the contract by choice and I’m not a forced party because it somehow “offends me”. Polygamy offends me. It offends my sense of logic. But it does not offend my choice not to engage in it that practice. Live and let live. What people do in their own homes is their business. If they aren’t asking you to dance, what’s it matter, wallflower?

    Open the contractual forms of marriage to allow for the full spectrum of sexual behavior. From monogamous heterosexual and homosexual unions to polygamous communes. To do otherwise fights against human nature and therefore causes unnecessary suffering. To fight the tao is to invite disaster. And right now, the law is fighting human nature.

  5. Female polygamy is not sanctioned by religions except in a rare form practised in China. The male seems to be in control in most of these situations and to me it seems laden with abuse.

  6. First the claim “It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond.” is evidently wrong. Google “HBO” & “Big Love”. Secondly “Swarthmore mom” you’re wrong polyandry is popular in Tibet and Nepal as mentioned in the article. If there is abuse in a polygamous relationship then the law can deal with it, just like it does in monogamous ones. That it “seems” to you to be “laden with abuse” when you give no indication of witnessing it directly once or having any experience relevant to judging it is irrelevant, as is my opinion of your relationships.

  7. Women are more than likely to be afraid to involve the law in an abusive relationship with a polygamist. You won’t change my mind and I hope you know nothing about my relationships.I wrote practised before instead of practiced. Just thinking about Warren Jeffers and those folks upsets me.

  8. “Women are more than likely to be afraid to involve the law in an abusive relationship with a polygamist. ” Gee Swathmore Mom is that because they know that they’re breaking the law themselves? Don’t answer that question firstly because it’s rhetorical and secondly because you don’t know anything about it. But I won’t change your mind, because those who decide without evidence never decide with evidence.

  9. Polygamy might work tolerably well for the people who choose it, but if the practice became widespread it would be disastrous to a society founded on egalitarian concepts.

    Why? Because it reduces the opportunities for some men to find a mate at all. (To simplify this discussion, I am ignoring the implications of gay marriage as well as polyandry. The latter as far as I know is nowhere practiced in Western societies.) For example, in some Islamic countries men are allowed up to 4 wives. But since the man is expected to support his wives, plural marriage is an option only for the well-off. This readily leads to a market in wives foreclosed to the poor and limited for the middle class. Social tensions follow, not only from class resentment but simply from the fact that unmarried men tend to be more stressed than married men – even in our society.

    And there’s the math. Assuming a society with a roughly 50-50 gender ratio, if one man has four wives, then 3 must go without any. This is what leads to the “lost boy” phenomenon among the “fundamentalist” LDS sects in the US. The surplus males have to be pushed out of the community or they will make trouble.

    Adultery and serial monogamy raise issues of social disruption, but I agree with Prof. Turley that criminal prosecution won’t improve things. But adultery once found out will be settled between the spouses (one way or another), and serial monogamy doesn’t freeze out other possible mates. Polygamy cannot be tolerated by a state that aspires to equality.

  10. I dont see why polygamy is illegal.
    If theyre going to let gays get married they might as well allow plural marriage

  11. Anyone who would want to practice Polygamy has obviously never been married. One wife was more then a sufficient amount of pain. Who is crazy enough to want more then one?

  12. Hey wow, Swathmore Mom you’re pyschic! I was going to ask, can you think of a person who shows how dangerous it is to keep polygamy illegal? And you already posted “Warren Jeffs”. That’s right, the Jeffs is an example of the sort of abuse a person can get away with if the community they belong to know they’re all breakign the law so nobody can report him.

  13. Hay there is a man here in Fayetteville, North Carolina named Jessie (Jesse) James Thomas said to have several wives in New York and Georgia by the name of Yvonne Poole Thomas and Geraldine Walker Thomas and his father said he was married to them both and tired to have a third wife what can be done about him? His birth date is May 1, 1962 please help he is a starker

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