Lessons from Roe in the Brown Polygamy Case

Submitted by Mark Esposito, Guest Blogger

Rarely do I disagree with our host, but on the Brown polygamy case we do. And not so much on the merits of the case as on the timing of it. I’ve said before I would decriminalize the practice of polygamy and regulate it much as we do other human relationships where there exists real risk of overreaching or exploitation. I think this approach serves the interests of the important right of privacy and protects the vulnerable.

Where we differ is on the timing of the claim. Professor Turley seeks to make the issue about privacy and proceeds now to protect that right. We all know that we live in the present and cannot always wait for the perfect time. However, I think in seeking societal change, when the case is argued might be as important as what is argued. To a large degree Professor’s Turley’s haste is correct. The Brown case involves pressing issues of great importance to the litigants. Also, as been pointed out before, there are many forms of psuedo-polygamy which both the law and society ignores–serial philandering and open marriages, to name just two — and which can only be described as tacit approval of their non-criminality. I think we ignore them based upon crude notions of “it’s none of our business,” or “if it works for them, that’s ok.” However, where this rationale breaks down is when we are asked to put a societal imprimatur on a practice that is overwhelmingly disapproved.

We tolerate quite well many activities we find distasteful. Hate speech is the most obvious one, but there are many others from ill-designed and inefficient social welfare policies to taxing policies that are regressive. We do so because we see a higher purpose in the toleration and we see them as necessary evils to the fulfilment  of more important goals such as free speech, providing minimum financial support to the poor, or job creation. We are not however called upon to endorse hate, or waste, or lining the pockets of the rich. Government doesn’t ask us to do that.

However, in this case the court as the interpreter of law and hence social policy, will be called upon to place an official stamp of approval on the concept of multiple adult sexual partners within a family unit. I think very few of us would contend that such an approval would be benign. Aside from the practice’s most famous proponents being regarded as little more than a cult by a many Americans, the major obstacle is the affront to prevailing notions of morality. Obviously, this consideration cannot stand front and center to the court, but it is not unimportant. Courts have occasionally reversed years of institutionally mandated moral sentiments with cases like Roe v. Wade.  However, while most religious institutions were (and are) adamantly opposed to legalized abortions, the public has never been as uncompromisingly against the practice as has been portrayed.

A New York Times poll in 2007 found abortion sentiments substantially similar to attitudes held 1989 when the questions were first asked:

Since the question was first asked in 1989, less than a quarter of those surveyed have called for an end to abortion. But the split between those who want it without restriction ,and those who would like to see more restrictions, has vacillated throughout the years. Currently, 41 percent of those surveyed called for more stringent limits, 34 percent said it should be available without restriction, and 23 percent preferred that it not be permitted at all.

Even in 1973, when Roe was decided, Americans acceptance of legalized abortions had risen over the preceding eight years from 41% to 68% under six specified circumstances. (Abortion Attitudes: 1965 – 1980, Granberg, D, Family Planning Perspectives). Justices deciding the Roe case thus were armed with an established public sentiment overwhelmingly in favor of legalized abortion in certain circumstances.

How then does polygamy fair in the court of public opinion. A 2009 US News and World Report poll found an overwhelming 91% of Americans found polygamy morally wrong. While it is true that more (92%) found infidelity within a monogamous relationship more repugnant, the point seems well-established that the public is not yet interested in considering this lifestyle as “normal.” Recent polls about Mitt Romney make the same point in reference to his religion:

When asked to describe their impression of the Mormon religion in a single word, somewhat more (27%) offer a negative word than a positive one (23%); 19% give a neutral descriptor. The most common negative word expressed is “polygamy,” including “bigamy” or some other reference to plural marriage
(Pew Poll, 2007).

How then should one frame the issue of the case? Professor Turley does so in terms of privacy, which has a popular appeal. A 2006 Zogby poll on the issue made these expected findings:

The survey of 13,456 likely voters finds Americans largely unwilling to surrender civil liberties – even if it’s to prevent terrorists from carrying out attacks – a significant departure from their views in the months immediately after the 9/11 terror attacks. Even routine security measures, like random searches of bags, purses, and other packages, were opposed by half (50%) of respondents in the survey. Other measures fared worse. Just 37% would be willing to allow random searches of their cars – a dramatic drop in support compared to a survey conducted by Zogby International in December, 2001. Support for regular roadblocks to facilitate such searches was even lower, with just one-third of voters (33%) in favor. Four years ago, 59% backed such measures.

My own feeling however is that this is a strategy fraught with problems. Is the public to accept that this particularly controversial expression of privacy is divorced from or more compelling than prevailing notions of morality, especially when that expression is so diametrically opposed by the public? Do judges’ attitudes on the propriety of the practice, differ markedly from the public’s at large?  Will judges overturn existing law based on notions of privacy when its expression is so inimical to the public’s will?

My own personal feeling is that judges will not. My experience is that despite popular belief of rampant judicial activism, most judges tend to avoid being out front in matters of social consciousness. Rather, they prefer to defer to the legislatures to allow any groundswell of popular support to filter into the political process. As the polling history of Roe shows, some laws are ripe for change in the minds of both judges and the public. And some, in the words of Jefferson (as he considered changing the insidious but long-standing Virginia prohibition on slaves testifying against whites), involve so radical a proposition that “ the public mind would not yet bear the proposition.”

This does not mean that the fight is not worth making, nor that a streak of enlightenment might not shine on the jurists as they deliberate the cause. Nor does it mean that courts should be guided by currently existing prejudices in the face of genuine constitutional extensions of rights. It simply means that some judges do try to read the minds of the public even as they divine the law. If Roe is any guide, Brown may be more bellwether than instrument of social change.

~Mark Esposito, Guest Blogger

85 thoughts on “Lessons from Roe in the Brown Polygamy Case”

  1. On that foundation lies a fundamental difference between the sexes. It explains why polygamy almost always amounts to polygyny and not polyandry in practice, and why the freedom you seek is really just a patriarchal agenda in sheep’s clothing.

    You mean to write that unlike race, differences in sex are fundamental, as the Minnesota Supreme Court pointed out? Baker v. Nelson , 191 N.W.2d 185 at 187 (Minn. Sup. Ct. 1971)

    So much for feminism.

    It explains why polygamy almost always amounts to polygyny and not polyandry in practice, and why the freedom you seek is really just a patriarchal agenda in sheep’s clothing.

    What is your problem with patriarchy?

    What history has shown is that it is men that contract multiple marriages, guard access to those women, and ensure that unmarried men are shut out of marriage and reproduction.

    How do men guard access to women without the acceptance of a social double standard?

    You are correct that women have much less of an incentive to seek multiple partners than men. But there are no biological deterrents against women having multiple partners, and there is a very strong biological incentive to seek a faithful partner.After all, women with faithful partners are more likely to have their children survive to adulthood, as their partners are devoting their resources to them and their children, and not other women and their children.

    And this explains why monogamy was adopted as a social custom. It was not out of any concern for equal rights for women. Women were denied various rights that were offered to men for almost every century monogamy was practiced. Men wanted women who would have only their children. Women wanted men who would provide only for them and their children. The only way both sides could get what they want is if they had to restrain their own actions without any biological deterrent (and in the case of men, against a biological incentive)

  2. The Economist says:

    “For fiscal reasons alone, marriage should be limited to two consenting adults. But the question of whether polygamy should be a criminal activity is a difficult one. It may not make sense for a modern woman to enter into such an arrangement, but bad judgment is not illegal. ”

    I think the Economist is likely wrong about this. It may make plenty of economic sense for some women to enter into a polygamist marriage. And polygamist women speak of the sisterhood benefits of plural marriage. But it is true that either way, it’s not illegal to make bad economic judgements.

    “Also, lots of marriages have odd power dynamics; the state does not charge these couples with criminal activity.”

    Exactly right, although polygamy is particularly bad. Still, not a crime to free submit yourself to a patriarchal arrangement, I suppose.

    ” But polygamy may pose some negative externalities. It often leads to a large pool of unmarried, young men which can lead to social instability.”

    Bingo. I’ve said enough about this. It’s the heart of the whole problem.

    ” And polygamists tend to have many children to support which may prove to be a burden on the taxpayer.”

    Yes, but this is a broader problem than just the children who are not supported. The lost boys/men are also economically lost as they are driven out of polygamous societies. So that polygamy probably retards economic growth (as researchers other than me have pointed out) by tying men down in guarding women, acquiring women and attempting to gain access to women.

    ” Rather than simply criminalising plural marriages, perhaps people should simply be taxed for each additional spouse.”

    Further impoverishing the children of such marriages? Of course the economist wants an economic solution to what it describes as an economic problem. But this seems like thin gruel. The real issue is not to penalize polygamy (as an exclusive remedy) but to both deter and punish polygamy and to reward and favor monogamy, so that it is the choice of women, and so that it is a possibility for most or all men.

  3. Michael, you are free to invent a new imaginary human sexual psychology, but I don’t think you get much credit when you claim that it real unless you provide some reason to think that people would behave in this way that you’ve fantasized.

    I said:
    “In contrast you, Mr. Turley and pastor Jeffs apparently recognize no limits to male privilege at all, in the matter of men contracting marriages with multiple women.

    You replied:
    “Under such a system, women would be free to do the same.

    And I simply respond as I did above that there is no evidence in history or sociology that women would contract multiple marriages with multiple men, and more to the point even less reason to think that men would agree to such arrangements. Your fantasy remains an unlikely conjecture.

    What history has shown is that it is men that contract multiple marriages, guard access to those women, and ensure that unmarried men are shut out of marriage and reproduction.

    One way to put it is that women are simply better than men, but that’s probably supercilious and a bad joke. Evolutionary biology suggests a better reason and that is that men are not the rate limiting step in reproduction. One man is perfectly adequate for inseminating and providing other services (protection, food, love) to multiple women. Women have, historically, little use for multiple husbands because they derive no additional benefit from an additional partner – their fertility is limited by their own ability to bear children.

    Men in contrast can multiply their fertility by tying down multiple women. That may be why they have always done so, across multiple cultures, and it is certainly why they will always have an incentive to do so. On that foundation lies a fundamental difference between the sexes. It explains why polygamy almost always amounts to polygyny and not polyandry in practice, and why the freedom you seek is really just a patriarchal agenda in sheep’s clothing.

    The equality rules you seek (everyone can contract any marriage with any number) assure an unequal outcome as the preferences of men and women will be as they have always been, fundamentally different, driven by different biological realities.

    The equality rule that I advocate (monogamy) assures a less unequal outcome, and reduces the massive inevitable ethical harm that your solution forces on men who are frozen out of marriage and reproduction.

    Thanks for your comment “puzzling” above.

  4. If any interest to the commenters, from The Economist:

    SUNDAY marked the first day gay couples were allowed to marry in New York State. This provoked an unusual New York Times op-ed by lawyer Jonathan Turley. He reminds us of another group being robbed of their basic rights of citizenship—polygamists…

    Mr Turley claims he’s not fighting for the state to recognise polygamous marriages, but he’d like to see the practice decriminalised. Though I am not quite sure what gay couples and polygamists have in common. The gay marriage cause is not about privacy. Rather, it’s a quest to obtain equal rights, to ensure that gay spouses are protected, entitled to Social Security benefits, health insurance, and their partner’s assets if the relationship ends through death or divorce. Extending these same rules to polygamy would be a fiscal nightmare.

  5. Why are the motivations of women relevant to this issue?

    Because the motivations of women have much more influence on female behavior, including fidelity or infidelity, than the motivations of men.

    Likewise, there is no biological reason why most women could not in some circumstances imagine sharing a husband with other women…. lost on a desert island, only one man available, desiring children…. most women would agree that, even if they do not personally desire it, it is not unimaginable.

    The key word is some circumstances.

    The circumstances you cite above are rare. In modern society, relatively few women would choose a polygamous union, and those who do would unlikely be the type to value fidelity and exclusiveness.

    In contrast you, Mr. Turley and pastor Jeffs apparently recognize no limits to male privilege at all, in the matter of men contracting marriages with multiple women.

    Under such a system, women would be free to do the same.

  6. This is an excellent point:

    “But are not polygamists also just a small percentage of our society? The vast majority of women would not participate in this any more than they would marry women, if the actions of Maria Shriver and Elin Woods are any indication.”

    There is no reason to think that homosexuality is anything but a trait with which a fixed percent of the population is born with. Estimates for men range as high as 10%, but are more realistically at around 5%. Social policy will not alter the expression of homosexuality and is utterly misguided in attempting to do so.

    In contrast, the urge to have at least multiple sexual liasons can be considered almost universal among heterosexual men. There are few heterosexual men who are not potential polygamists, and most men will be honest enough to tell you that. Even if they don’t think they really want it, or could really handle it, the thought has crossed their minds and not in a bad way.

    Likewise, there is no biological reason why most women could not in some circumstances imagine sharing a husband with other women…. lost on a desert island, only one man available, desiring children…. most women would agree that, even if they do not personally desire it, it is not unimaginable.

    The situation with polyandry is very different. While there are also very few and very rare instances in which men comfortably accept polyandry, few readily express an interest, and even fewer societies have actually implemented such a system. Again, biology probably plays a strong role here, due to resource and investment issues and the problem of assuring paternity and biological relatedness. Indeed, Tibetan polyandary only manages to hold together by having brothers mary the same woman, assuring that her children are at least every man’s nephew or niece.

    So polygamy is more or less a universal possibility, and it does not require very many male polygamists to begin to create huge sex ratio imbalances in the population of eligible for marriage women and men. This is particularly true in the extreme regime which you, pastor Jeffs and Mr. Turley seem to advocate, in which there is no reasonable limit on the number of women a man may marry. The ordinary men of Colorado City seem quite comfortable marrying dozens of women. Are they any different from you, me, Jonathan Turley or the average corporate executive? They are just human males who believe that there is no reason not to take a wife, and then another wife, and then another and so on.

    The ONLY reason that we don’t see more polygamous males is the fact that we have been operating under a strong cultural regime of monogamy for many many centuries, supported by some poorly designed and justified laws and it just hasn’t occurred to most men that their back of the mind fantasy might actually be acted upon, and acted upon with full social approval.

    There is no biological limit on the number of men who are interested in polygamy, the way there is on the number of men who are interested in a stable homosexual relationship. There are only long standing traditions of monogamy and supporting cultural mores, and of course the economic barriers to wife taking that apply in all polygamous cultures. You have to have the resources to persuade, support and police the fidelity of all those women, and it gets expensive.

    The Republicans are busy growing wealth for upper income folks, and you are busy taking away the laws and cultural customs that limit wife taking. Together you make a fine team.

  7. “I am not saying that the social deterrents to adultery should be severed; on the contrary, they should be upheld, and this is a good enough reason to refuse social sanction of polygamy.”

    Really, I have no idea what you could mean by the above statement. “Social sanction” could mean approval or disapproval, for one thing. Which meaning do you intend?

    “What would motivate females in such unions to maintain fidelity? Tit for tat obviously does not apply.”

    You’ve lost me. What is this, a method acting class? Why are the motivations of women relevant to this issue? They may be, but you’ll have to explain. Instead of posing obscure questions, state your meaning.

    “I have great doubts that experiences in Muslim countries can properly map here, given how monogamy is practiced in fundamentalist Muslim countries.”

    I don’t see a great difference between Colorado City polygamy and polygamy in Arab Muslim countries, except that American polygamy is considerably more extreme, and could learn a few lessons in moderation from Islamic polygamy with its limitation on the number of wives. I don’t hold it up as any kind of ideal, but at least it recognizes that there are reasonable limits. In contrast you, Mr. Turley and pastor Jeffs apparently recognize no limits to male privilege at all, in the matter of men contracting marriages with multiple women.

    Polygamy is the ultimate expression of unrestrained patriarchy, in which the few, the powerful and the male, control and limit women and less fortunate men. Your vision is designed to ensure the perpetuation of patriarchy.

  8. Lemme see how old magdita can get this point across!!!! I dont give a rats azzzzzzzzzzzzzzzz!!! Was that to the point???

  9. I believe that you are citing as a self-evident good that the social deterrents to adultery should be severed. You apparently see polygamy as a way of bringing about this end.

    I am not saying that the social deterrents to adultery should be severed; on the contrary, they should be upheld, and this is a good enough reason to refuse social sanction of polygamy.

    The reality of actual polygamous relationships is that they have historically and still today involve a great concern over female fidelity, and are associated with high levels of male concern over policing fidelity.

    What would motivate females in such unions to maintain fidelity? Tit for tat obviously does not apply.

    I have great doubts that experiences in Muslim countries can properly map here, given how monogamy is practiced in fundamentalist Muslim countries.

    “The marriages of gays and lesbians, who constitute a small percent of our society, ultimately are of no consequence for the issue of polygamy, which threatens to alter the prospects for marriage of huge numbers of young men, and create a new kind of reproductive/marriage INEQUALITY, that will parallel the growth of wealth and income inequality.”

    But are not polygamists also just a small percentage of our society? The vast majority of women would not participate in this any more than they would marry women, if the actions of Maria Shriver and Elin Woods are any indication.

  10. Oops. I meant to type:

    “The marriages of gays and lesbians, who constitute a small percent of our society, ultimately are of no consequence for the issue of polygamy, which threatens to alter the prospects for marriage of huge numbers of young men, and create a new kind of reproductive/marriage INEQUALITY, that will parallel the growth of wealth and income inequality.”

  11. Well Michael, you’ve left me confused about what your argument is. I believe that you are citing as a self-evident good that the social deterrents to adultery should be severed. You apparently see polygamy as a way of bringing about this end.

    The reality of actual polygamous relationships is that they have historically and still today involve a great concern over female fidelity, and are associated with high levels of male concern over policing fidelity. The “lost boys” are probably a reflection of this patriarchal concern to drive away potential competitors, not only for marriage to girls in the community, but also potential “adulterers” who might father children with polygamously married women of one man.

    So, far from reducing the concern with adultery, all evidence suggests that polygamy increases it. Far from producing less patriarchy, polygamy is both a result of patriarchy, and reinforces it in turn.

    The idea that you can favor polygamy, but expect patriarchy to decline is absolutely absurd. Women’s rights are supported when men’s rights are supported. Equality breeds equality…. the inequality of male access to reproductive/marriage opportunity breeds social structures that also control and limit the lives of women. I’m surprised that you don’t see the obvious connection, which we’ve observed historically and cross culturally.


    While the court has referred to “heterosexual monogamous” unions, the recognition of homosexual unions says nothing about the status of monogamous unions, which courts should continue to recognize as a good context for child rearing. I however do not believe that they are markedly better for child rearing than polygamous unions. The sisterhood benefits for women rearing children in polygamous unions may in fact be real, albeit not strong enough to counter the harm experienced by men frozen out of any marriage relationship.

    Indeed, I doubt very much that the term “heterosexual monogamous” is really about a polygamy at all… that’s simply shorthand for conventional marriage which is now being rightly and justly expanded to include gays and lesbians who form nuclear families through adoption. The marriages of gays and lesbians, who constitute a small percent of our society, ultimately are of no consequence for the issue of polygamy, which threatens to alter the prospects for marriage of huge numbers of young men, and create a new kind of reproductive/marriage equality, that will parallel the growth of wealth and income inequality.

  12. Michael, It’s good of you to lay out your assumptions regarding polygamy and the (coming soon!) fading away of male interest in assuring actual paternity relationships to the children whom a man is responsible for supporting because they were born during his marriage to their mother. I’m sure we all look forward to that day when men and women lose interest in the bargain of faithfulness, paternity, and loyalty that has centered around marriage.

    This interest (as well as the female interest in assuring that their male partners are providing for them and their children and not others) is the biggest obstacle to acceptance of polygamy.

    It is important to remember that, while expecting fidelity from one’s partner is human nature, fidelity itself is not. It is no skin off a man’s nose if he knocks up other girls, as long as he knows his partner has his children. It is no skin off a woman’s nose if she gets knocked up by someone else, as long as her partner will provide for her and her children. Fidelity is a learned behavior, and polygamy will undermine that.

    But I don’t claim to know why the idea of cast away men does not move you.

    It is based on a fallacy that women who enter into polygamous unions would be faithful. They would not. As explained above, fidelity is a learned behavior, and there would be no motivation for women to learn fidelity if they are sharing a provider.

    The harm caused by polygamy is that it would, over time

    a) sever the link between marriage, fidelity, and exclusiveness, as explained above, and remove social deterrents to adultery
    b) undermine the interest in procreating from within a heterosexual monogamous union, an interest recognized by the courts from 1890 to as recently as last year.

  13. and i dreamt with Oprah Winfrey!!! lmao She wants my low carb soup recipes…she said shell get with me M O N D A Y,,,,,,,,,,LOL MAGGIE You dont need to write a book we are all reading it lol!!!

  14. Jack:

    “When did I ever say anything about MY standards supplanting, well, anything?”

    **************

    Well, Jack, given your obvious intellectual superiority, whatever more could we have hoped for? Pity the loss. We’ll just muddle along confident that though we are utterly lost, there are those more gifted who mentally and morally flitter above us along other shores rightfully unwilling to share their omniscience which they possess in such abundance. Thank you for deigning to converse with we mere Americans and point out our foibles all the while prudently avoiding any mention of solutions or even counterarguments to points we’ve made. Let ’em eat monogamy! Your predictive powers about my predispositions, like everything else about your commentary, are spot on — of course.

  15. Mespo,

    “We dimwitted Americans certainly would defer to your personal standards of decency and morality rather than our pitiful attempts at reaching a consensus on this complex (to us , only, of course) topic. One silly question though: How does calling us ignoramuses and confusing an article on the descriptive aspects of this issue with one on the normative ones fit into your philosophy, oh, Solon?
    We fools anxiously await your precious instruction!”

    When did I ever say anything about MY standards supplanting, well, anything? A self-important blogger’s use of bad data based on a faulty premise goes far beyond the descriptive and into the intellectually lazy (if not worse) to pander a ridiculous slipperry slope theory with no break for the absurd.

  16. Michael, It’s good of you to lay out your assumptions regarding polygamy and the (coming soon!) fading away of male interest in assuring actual paternity relationships to the children whom a man is responsible for supporting because they were born during his marriage to their mother. I’m sure we all look forward to that day when men and women lose interest in the bargain of faithfulness, paternity, and loyalty that has centered around marriage. But I shouldn’t be sarcastic. I think that human beings are a product of both nurture and nature, and you are pinning your hopes on a change in human nature. Ain’t gonna happen.

    I reviewed Cooks v Gates and Lawrence, and came away impressed by the irrelevance of the argument about homosexuality for polygamy. The history of homosexuality and discrimination against it is long, but it is a different history than that of polygamy. I would freely grant that people have opposed polygamy for bad reasons, often due to base prejudice and a sense that it is different and just “icky” or “unChristian.” None of that means that if we agree that it is not different or icky, and agree that Christianity is not the basis for our legal system, we cannot still reasonably conclude that polygamy is bad public policy for reasons that have nothing to do with any prurient or inappropriate interest in the private lives of our citizens.

    The world has changed, and we need better reasons than the fact that people have opposed polygamy in the past for bad reasons to oppose polygamy today. Fortunately we have them (thrown away men and their cost to society), and those reasons are probably connected to the most primitive and original reasons for the monogamous pact, the commitment to male equality, which gave rise to Western democracy.

    I suspect that we’ve always been aware of them on some level, and that they underlay the repulsion to polygamy that most people expressed in the 19th century, but that in the 19th century most opponents lacked the historical awareness and analytic understanding of comparative sociology needed to appreciate the real reasons that polygamy should be opposed. They substituted tiresome moralizing for thinking, and that is what you are now trying to use to dismiss the anti polygamy position. It’s really not a fair reading.

    The fact is that we have a class of men who will be harmed by the success of polygamy. You clearly don’t think that there harm amounts to a hill of beans compared to the privacy issue. At the very least that suggests a lack of historical awareness on your part, and a lack of moral imagination. But I don’t claim to know why the idea of cast away men does not move you. May be you think it doesn’t apply to you, or to your sons, or maybe you think the world is just a hard place with winners and losers and the losers aren’t our problem. Whatever your reasons, your inability to acknowledge or even relate to the harmed class created by polygamy is … puzzling.

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