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Sister Wives: An Illustration of Why Polygamy Is, and Should Be, Illegal

The television show Sister Wives, with its one man, four women, and 16 children, has been touted as our chance to gaze upon the “reality” of polygamy.  The Brown “family” has been presented as simply your ordinary family—one that just happens to need four sub-homes and an arrangement that permits the man to choose which woman and children to visit each night.  This is not a show about casual sex or adultery.  According to the family members themselves, it’s a show about a single family.

The family was originally living in Utah, where what they are doing is illegal, and wouldn’t you know it? Their extreme flouting of the law led to an investigation.  Shocking.  It reminds me of the Church of Marijuana, whose leaders and members seem surprised every time they are arrested for, yes, distributing and using marijuana.

The Browns are now suing Utah for making their behavior illegal and forcing them to move to Nevada.  Essentially, their argument is that they have a right to be married however they choose.

As Joanna Grossman points out in her prior Justia column on the Brown family, their lawsuit raises every constitutional argument conceivable—which is often a good measure of how unlikely it is that a litigant can win.

In short, the Brown family is grasping at straws.  Professor Jonathan Turley is their lawyer.  In this column, I’ll argue that the Browns will not—and should not—win their case.

Polygamy Cases, Present and Past

Coincidentally, the Supreme Court of British Columbia, Canada, is currently considering whether polygamy is a constitutionally protected activity.  The court held lengthy hearings, collected evidence and accepted expert reports (including two from me) on the topic, and also heard from active polygamists in BC.

The key point I made in my first expert report to the Canadian Supreme Court was that no court in the United States has ever held that the anti-polygamy laws violate the free exercise of religion, or any other constitutional principle, despite well over 100 court challenges.

My second expert report responded to Jonathan Turley’s attempt to argue that polygamy is constitutionally protected because private consensual sex is constitutionally protected, as was held by the U.S. Supreme Court in Lawrence v Texas.  I agree with Joanna Grossman that the argument is not strong. Nor are the free exercise arguments.

The first decision in the United States on the topic was Reynolds v. United States, in which the Supreme Court held that no man may be a law unto himself, and that each must be subject to the laws that govern all.  Just as important, the Reynolds Court described the long history behind the anti-polygamy laws across the United States:

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offense against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offenses against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.

By the statute of 1 James I (c. 11), the offense, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that “all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,” the legislature of that State substantially enacted the statute of James I, death penalty included, because, as recited in the preamble, “it hath been doubted whether bigamy or polygamy be punished by the laws of this Commonwealth.”

From that day to this we think it may safely be said that there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or lesser extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. An exceptional colony of polygamists under and exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

Anti-Polygamy Laws Represented a Universal Ban, and Did Not Target the Church of Latter-Day Saints

It is historical fact that the anti-polygamy laws in the United States have been universal from the start, as the Court explained.  Every state outlawed polygamy, and Congress extended that prohibition to the Territories, including the Utah territory, where the Latter-Day Saints were practicing polygamy.

Thus, the misleading notion—popular even among some law professors—that somehow the LDS was being singled out by the polygamy prohibition is false history.  In truth, they chose a practice that was universally condemned and then were subjected to the law that bound every other United States citizen.

It is critical that Americans understand that the laws against polygamy preceded the LDS’s practices, and that the extension of the anti-polygamy laws to Utah were not created to oppress the LDS, but to oppress the practice.  It just so happened that the LDS were the ones engaging in the universally and historically reviled practice.

Thus, when either Mormon-derived polygamists like the Browns, or Muslim-based polygamists, try to argue that anti-polygamy is a form of religious persecution, they (and we) need to be reminded that the anti-polygamy laws are neutral and generally applicable, rather than being targeted at any one group.  Thus, they are not constitutionally suspect.

The Focus of Anti-Polygamy Laws Was Not Religion, but Patriarchal Oppression

The Supreme Court also noted that the “patriarchal” principle typically leads to oppression.  The Browns and their Stepford Wife-like existence are a perfect example.

Here you have one man who has one family with four subparts and who holds all the power.  Typically, he spends his evening with the family he chooses.  It is obvious that there is an equation in the family: one man = four women (or five women, or 10 women) and he is the one who will choose how many women are his equal.

Part of the pathos of the Sister Wives show comes when patriarch Kody Brown introduces a new wife and mom to the “sisters.”  (Is anyone else as offended by the title of this show as I am, with its overtones of incest?  Sisters have brothers; wives have husbands.  It is just another marker of the women’s troubling, second-class status.)  For those who believe in gender equality, this arrangement should be seen as more than just television entertainment; it is a recipe for oppression, and a foot in the door for the patriarchal principle that unfairly ruled our world not so long ago.

No collection of individuals—even those with their own reality-television show, or a set of religious beliefs—has the power or right to define what marriage is.  That is the obligation and power of the state legislature.  When marriage is defined, it also determines a wide range of issues, including who is responsible for which children, who inherits from whom, and who owns what.  These are crucial constitutive elements of our society that cannot be left to the whim of each individual.

Utah has declared polygamy illegal, and for good public-policy reasons.  When practiced in a community, it leads to the necessity of each man looking to younger and younger women, and the abandonment of some of the boys to make the odds work for the men.  Even if the Brown clan can make polygamy look banal, as opposed to outright evil, the structure has a sure tendency to suppress women, foreclose the full flowering of their potential, and make children defenseless.

How do I know?  If you are charmed by the Brown family, despite the women’s second-class status to their husband, you should make sure to tune in to the trial about to commence in Texas of FLDS prophet Warren Jeffs.  He is already trying the FLDS’s familiar tactic of accusing everyone around him of bias so as to deflect attention from his own crimes.  What he has done to girls in the name of polygamy should be—and is—more than enough evidence to show why the Browns’ bid to defeat Utah’s anti-polygamy law is so wrongheaded.

Fortunately, there is also a backstop to Utah’s defense of its statute.  Utah had to agree, as a condition for statehood, to join all other states of the union in banning polygamy.  It is in a provision of the state’s very constitution.  Thus, even if a Utah court were to hold the current version of the law unconstitutional, the State of Utah still could not permit such a marriage.  And that result is a just one—for the reasons that led the states to impose on their newest member of the union such a condition is as valid today as it was then.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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20 Responses to Sister Wives: An Illustration of Why Polygamy Is, and Should Be, Illegal

  1. Anonymous says:

    I think you are conflating two issues here, and setting up a bit of a straw man argument.  All 50 states ban any person from having more than one legally recognized marriage at a time.  But Utah, and only Utah, bans you from acting as if married to multiple people, even if you never apply for a marriage license or attempt to utilize any of the legal benefits of marriage.  That is, Utah, and Utah alone, has decided to ban a person from engaging in otherwise lawful activities such as sex, cohabitation, childrearing, and sharing finances.  You state that “when marriage is defined, it also determines a wide range of issues,
    including who is responsible for which children, who inherits from whom,
    and who owns what. ”  But persons may have children, inheritances, and property absent the legal vehicle of marriage.  Many couples cohabitate without marriage.

    Do I think what the people on this show are doing is morally wrong?  Yes.  However, moral avarice alone does not constitute a reason to enact criminal sanction for otherwise lawful behaviour.  As far as I can tell, Mr. Brown has never applied for more than one marriage license at a time.  He has simply engaged in lawful, if creepy, behaviour that was made unlawful only by the fact that he held a marriage license.

    • aradia1313 says:

      Haudpe-

      I agree with you. This family’s actives are legal in all other states. It is not illegal to have more than one sexual partner, to have children from more than one partner, or to live with more than one partner. If it were, a whole lot of men and women would be currently in prison.

      Also When the writer of this article  states that issues, including who is responsible for which children, who inherits from whom, and who owns what are crucial constitutive elements that cannot be left to each individual Well, those decisions  are already up to the individual. I, an individual, will decide who will take care of my son and who will inherit my possessions. All these decisions can be drafted in a will or other legal documents.  

    • Moral avarice is what motivates people to oppose polygamy?  Speak for yourself.

    • FreeandClear says:

      Wrong, I know that at least Texas has laws against polygamy that include pseudo “spiritual” marriages, and prosecutes for them.  Im pretty certain other states do too, but don’t have a list at hand right now.

  2. Phil88 says:

    Your point about the law pre-dating the FLDS is a good one from the point of view of the law not targeting the FLDS.  I have some concerns about your point about how it is the function of the state to determine what constitutes a marriage.  One of the issues I see is that those in favour of polygamy will use the same arguments that gay marriage proponents have relied upon, arguments which many opponents of polygamy have used to villify DOMA and similar legislation mandating marriage as between one man and one woman.

    • Phil88 says:

      Also, contrary to the headline of the article, your conclusion seems to be that what Warren Jeffs is alleged to have done is what illustrates the need to keep polygamy illegal.  You described the Browns as appearing “banal” and, as pointed out earlier in the comments, the situation would be absolutely legal in the vast majority of the country (I am no expert on Utah laws which one commenter suggests largely limit any polyamourous activity), though perhaps no more morally justified, if Mr. Brown were only in fact married to one or none of his wives.

  3. Dammon says:

    One could put the word “gay” in the long history section and what would your article be about then.?

  4. Tony says:

    Marci

    You are wrong.  Is it marriage you are against?  What are you going to do about all thost cheating politicians?  Why can Howard Hughes have all the multiple sex partners and cohabitational sex he wants, while we all giggle like horny teenagers, yet heaven forbid if ask them to marry him?  The whole argument has become a moot point with the new social mores and absolute promiscuity of the 21st century.

    • Efwerter54g54 says:

      Wow,  you raise NO good arguments. You pretty much state “Oh if this is this, why can they do this?!” That’s like asking why you have to pay taxes while the rich don’t. The law isn’t perfect and some people slip through the cracks, and it either takes a long time before they get caught or they have the time and money to hide it. You seem to be all for it because you just wanna bang as many girls as you can, that is the reason for most guys to be pro poly.

      • It’s funny how it’s always the men who end up looking around and declaring that things are just so bad, we’d better start practicing polygamy!

        I’ve never heard a woman make that suggestion.

        • Liberty says:

          How many single adult women do you know? How many of them are holding out hope to find a guy or have given up? I dare say the number is growing. I know of 10.
          - one gave up trying to find a good man and abandoned her religion to shack up. If given the honest choice 2 years ago when she still held hope of finding a good guy with her same moral values, what would she have done?
          - 2 or 3 are divorcees who have stated that the number of available men who are decent and responsible and good fathers is dwindling. They must either settle or remain single mothers. The option of voluntary polygamy is not available.

    • FreeandClear says:

      Howard Hughes??? Is this the “Hugh Heffner” argument so beloved by polygamists? No this is not a moot point. Having indiscriminate sex is not the same as polygamy. Polygamy is frequently coercive to some degree (try the scriptural authority that warns women they will be “destroyed” if they don’t live it.) Polygamy takes women permanently out of the pool of available partners, meaning some men will have none (witness the “Lost boys” phenomenon). There isn’t the space here to list all its problems. It’s such a bad system that the United Nations says it should be banned since it has such a negative emotional and economic effect upon the women and children concerned. And as for the comparison to gay marriage, that’s just a red herring. Two individuals committed to each other, have none of the problems I have just listed.

      • Liberty says:

        Bologna! Prosecute the coercive. Prosecute the child-molesters. Protect freedoms of ALL equally.

        Lets use a simile. Biker’s frequently drink alcohol…then ride their bikes. Lets ban all bikes! No. Lets prosecute drunk driving.

        The “Lost boys” phenomena only occurs in rabidly forced polygyny.

        In my community there are many who “believe” and practice the principle of polygamy. There are many who attend that same church but have only one wife. That community does not allow coercive polygamy.

        So yes, prosecute warren Jeffs, and strip power from “Churches” who would coerce a sexual relationship that is unwanted! That’s rape.

        The only examples that can be given of where it is evil is where the people involved have also committed some other prosecutable crime: coerced sex, underage sex, incest, welfare fraud, etc. Prosecute those things, but leave freedom intact. There are legitimate reasons why Polygyny can be of use to a society…like in ancient times when a brother dies and a married man takes on the wife of the deceased…etc

  5. These days it’s fashionable to tolerate polygamy and to cast its opponents as trying to limit the religious or sexual freedoms of others, but this is so naive.  Personally, I don’t care who has sex with whom, as long as they’re all adults, but systemic polygamy like the Browns practice it has never been anything but a form of misogynistic sex abuse.  People who keep this abusive practice alive belong in prison with Warren Jeffs.

    Polygamy destroys freedom.  It is not a religious freedom.  I’ve got a few horror stories of my own, since I grew up in the same cult the Browns belong to.

  6. Jay says:

    Polygamy doesn’t exclude polyandry, so the focus on patriarchal oppression is misplaced. Do you think that polyandry should be legal or are you similarly concerned about matriarchal oppression?  And what of group marriage? It seems likely that your conflation of polygamy and polygyny comes from an examination of polygamy as it is practiced in the United States, which happens to mostly be in Mormon populations.

  7. Liberty says:

    First off, the moral character of the founding Father’s where juxtaposed with slavery is a stark reminder that 200 year old morality can be (as with modern) tainted by a cultural set of the time.

    How can a budding country set on Freedom and Equality for all not see the hypocrisy of their slave owning population (even members of the group we lovingly call founding Fathers)?

    Now, I have great respect for George Washington. I have great respect for the US constitution…however, I do not think that citing a 200 year old law (or older) regarding the punishment of Polygamy is a valid logical statement. What makes the law valuable? That it is old? or that it agrees with you?

    If the age of the law has weight, then we must recognize that Polygamy is a Jewish (Israelite) practice thousands of years prior to this Western European notion of forced monogamy. Much of the world DOES believe in polygamy, despite the assertions of this author.

    “…of 1,231 societies noted, 186 were monogamous (15%). 453 had occasional polygyny (37%), 588 had more frequent polygyny (48%), and 4 had polyandry (less than 0.32%). At the same time, even within societies which allow polygyny, the actual practice of polygyny occurs relatively rarely.”

    so, out of 1,231 societies if you combind those that were occasional and frequent you get – the vast majority permitted it 1045/1231 (85%).

    Instead of attacking a practice you don’t like, and then making false claims, as done here, prosecute the actual criminals. Prosecute coerced sex (rape), incest, welfare fraud, child abuse, neglect, etc.

    If you turn to a demographic that is necessarily criminal, what do you think you’ll find? The examples in the US must be the types who are willing to skirt the law, hide their lives and live in secret. This is not going to be a demographic of great law abiding people.

    If it was legal, it would likely revert to its natural balance, as found in nations where it is permitted. Relatively rare, but permitted.

    If you are Christian, then you accept that God gave wive(s) to Abraham, Isaac and Jacob…among others. Not everyone practiced, and very few were out of control like King Solomon and King David were.

    I like how some laugh at the Hugh Heffner example. They scoff that it is different. You’re right! In one example women are objectified. They give sex for money and glamour! They have no interest in raising healthy children with the aged wrinkly old pimp.

    In a righteous polygamist family, all are voluntarily involved in in a constructive behavior.

    Whats this pish posh excuse about regulating inheritance, etc? Today’s catch and release marriages with a man paying alimony to multiple (albiet non-simultaneous) wives and child support accross multiple families couldn’t be any less complicated than such an agreement between polygamous marriages?

    As far as not surviving Constitutional muster, how long did it take us to remove slavery? I suppose they should have accepted slavery as a constitutionally upheld practice and kept it!

  8. disqus_Lu1BKvCRz2 says:

    Once we as a nation allowed Homos to legally marry the object of their perverted affection your thesis and argument ceased to have any merit. “Love should be multiplied, not divided” is the Polygamist new mantra. Unfortunately I’m afraid polygamy will become the normal of the land just as Gay marriage has already begun to infest and corroded our social mores. So what’s next? I don’t know but I sure love my hamster…

  9. April says:

    Warren Jeffs and the Brown family are two very different situations. The Browns are not hurting anyone. How is polygamy and different that the rest of the different types of lifestyles? It isn’t! They are respectful to each other. I’m not a polygamist or religious, and I completely support the polygamy lifestyle. It’s socially acceptable to be a swinger but not a polygamist. No the wives are not sleeping with other people, but that was the closest comparison I could think of. Hypocrites! They are all still together, not divorced, something is working for them, but people are going to condemn them. Pathetic!

  10. Wade Harlan Crawford says:

    Actually, the polygamy laws put in place was a double edged sword that the government used to kill two birds with one stone. The mormons were the specific target, because the government had received word that they moved to Utah territory to cause an uprising. The law also extended to the native americans that practiced polygamy as well, furthering the American Indian Assimilation goals of the American government. Thinking anything otherwise after reading both sides of the historical documents from an anthropological viewpoint is absurd. A freshman in college seeking a degree in art could figure that out. How didn’t you?

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