Commentary & Opinion
3:50 pm
Tue January 7, 2014

Stephen Gottlieb: Polygamy And American Constitutional Law

A conversation on The Roundtable convinced me to address polygamy. A judge in Utah decided that state could ban formal legal polygamy but could not ban people living in comparable arrangements without formal legal sanctions. Some people argue that legalization of polygamy follows from constitutional protection of gay and lesbian relationships. If one consensual relationship is OK, therefore so are all the others. That is a mistake. The law does not work that way.

Missing from that argument is any mention of whether anyone is hurt and how. There are many ways that law takes account of injury, both constitutional law and other areas. For relationships that could be consensual, we are concerned about opportunities for coercing, defrauding, or injuring others, and for people below the age of consent. There are a number of legal methods to deal with those problems, from procedures to verify what is happening, to regulation and prohibition. Which is appropriate depends on what the situation requires.

In the context of polygamy, I have heard professional women describe living in polygamous relationships and preferring it that way. I can understand that – the gals outnumber the guys. But there has been considerable discussion of social and family pressures pushing women into polygamous relationships, including young women below the age of consent. Gay and lesbian relationships don’t have that problem – if anything, social pressure is toward straight relationships. But in isolated polygamous communities, elders have pushed young women into such relationships and closed off alternatives. The women’s movement is largely about making sure that women can control their own lives. I can’t offer any estimate of the percentage but it certainly seems to be a problem. Nothing short of prohibiting the relationship may prevent the coercion. And existing wives need protection too. Consent, and vetoes can be very difficult to handle. Even the Koran and Shariah limit men to four wives.

But consent is not the only issue. One issue is economic. If this is a traditional male-chauvinist relationship, can one man assume responsibility for multiple wives and many children? And do the young people have to be kept in cloistered communities away from the opportunities of the wider world to make sure that they too will consent?

And polygamy has an impact on the wider society, on the gender balance and gendered behaviors we are prepared to deal with. To the extent that polygamy puts off the age at which most men marry and conceive, are we prepared for the social consequences? Since there is concern about the health of children conceived by older men, there is another generation to be concerned about.

I don’t claim to know all the answers to the questions I’ve raised. My point is that there are serious issues to consider, that law is more complex than some are assuming, and that it is entirely appropriate for law to address this issue with an eye not just on the people in front of the court, but with an eye on the implications of any legal rule on all those who will be affected by it. Unlike gay rights where consenting relationships don’t harm others, polygamy poses serious issues. None of us is entitled to remake the world in ways that hurt others just so that we can have whatever we want, whether the issue is corporate irresponsibility, treatment of children or polygamy.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. 

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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