Posted by: bridget | 9 December 2006

Polygamists on Same-Sex Marriage Bandwagon

The Washington Post reports that polygamists are jumping on the same-sex marriage bandwagon.  Gay-marriage advocates have long mocked the “slipperly slope” argument – that gay marriage will lead to polygamy – advanced by their opponents.  Whoops.

Utah’s attorney general has tried to get bigamy between consenting adults reduced from a felony charge to a misdemeanor.  A GW law prof, Jonathan Turley, has written two articles in favour of polygamy and same-sex marriage.  Big Love isn’t helping matters, either.

For the “live and let live” crowd, polygamy isn’t quite as simple as extending marriage rights to interracial couples or gay couples.  More than two people creates a legal disaster.   Current marriage laws need little modification to deal with gay marriage; most “gay” issues (such as adoption of children conceived artifically) are also seen in heterosexual unions.  Polygamist unions, however, present a host of legal entanglements:

  • Consent: the marriage contract requires consent of all parties.  What  happens when a man wants to marry another woman, and his wife does not consent?  What happens when he wants to divorce one of the women, and the other wives don’t consent?  Need a couple state at the time of the marriage that they intend to add others to the union, or could a man, instead of divorcing his wife and running off with his mistress, bring her into the union?  What unions would be protected from possible polygamous intervention? 
  • Non-traditional polygamous unions: What happens in a marriage where a sister-wife wants to wed a man?  Is he wed to all women and the other husband?  Consent issues?  How can a union of three men and two women properly be termed a “marriage” and not a sex commune?  If a woman keeps more than one husband, what happens to the marital presumption of paternity? 
  • Children: are the children the product of the entire union?  Who would get custody in the case of divorce?  Death of the father?  The mother?  For more fun: death of the mother, followed by death of the father, leading to dissolution of the union? 
  • Death: When the husband dies, does the entire marriage dissolve?  Are the rest of the women in a same-sex union?  (Imagine the fun if same-sex unions were outlawed but polygamy permissible!)  Need they either divorce each other or all agree on a new husband? 
  • Covenant marriage: How does one determine fault or no-fault divorce in a polygamous marriage?  Need each wife be wronged to  participate in the divorce, or would the divorce (and therefore fundamental change of the marriage) be enough for them to all leave?  Would adultery still be a reason to leave any marriage, considering that a person in a polygamous marriage has little reason to be upset about a spouse who sleeps with others, and marriage no longer signifies exclusive sexual union?
  • Divorce: if only one wife leaves the marriage, how are assets divided?  Could she attach the assets, for example, of a high-earning sister-wife?  If the wife who is required to pay alimony did not consent to each marriage, Due Process issues will arise as she is deprived of her income for something to which she did never agreed.  Does she need the consent of everyone to get out of the marriage?  Who pays child support – just the mother and father, or all members of the union, regardless of biology?  Can visitation with ex-spouses be mandated, or will visitation be at-will (restricted to biological parents) but child support compulsory (as all members of the union had supported the children) – a situation usually seen only with cases of abuse?
  • Partial divorce: can sister-wives demand the divorce of one of the other women?  If the marriage is between all individuals (so as to not have a consent issue), what happens when one wants to divorce another but remain with the rest of the spouses?
  • Inheritance: children!  other wives!  husband dies and everyone else is still alive!  How does any court, short of simply dividing things equally but not necessarily equitably, split the assets?  How are children provided for? 

While such jurisprudential kama sutra would be ideal for sadistic Family Law final examinations, it underscores the problem with allowing for polygamous unions.  Current laws, which could be tweaked for gay unions, would need to be overhauled.  In the process, traditional marriages would be weakened as couples would not be able to legally promise exclusive sexual fidelity.  The law will make a mockery of Christian marriage vows – uniting two people with the promise to forsake all others – as such a promise can be revoked by the addition of future spouses.

Ultimately, such legal issues highlight the fact that our laws reflect our morals and our society.  A radical modification to our laws (either by having separate-but-equal and therefore, probably Constitutionally invalid, polygamous marriage or by making all marriages potentially polygamous) indicates that the institution will be massacred.  Modern Western cultures see marriage as a public contract between two people; we have long disregarded the misogynistic underpinnings of non-consentual marriages.  (The pachyderm wonders why liberals are so eager to harken back to pre-Renaissance times and emulate repressive cultures.)  Although gay marriage has fewer roots in history than polygamy, it fits neatly into our marital and familial jurisprudence. 

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Responses

  1. So out of curiosity I cruised the laws of Utah Territory and it looks like there was nothing special about polygamy anyways on that front. It wasn’t treated as an extended union – a man could simply marry more than one woman. Put another way, there was no privity between the sister wives, and they had no claim on each other (although legend has it the other wives consent was at least asked for). It’s like just multiple independant marriages. Furthermore, given that community property is a fairly recent innovation in American law, the property split problems didn’t exist either. You would have to change the elective share laws though.

    Oh, and adultery = sexual relations with someone you aren’t lawfully wedded to. If polygamy was legal, it wouldn’t be adultery. ALL the wives could divorce a man who committed adultery.

  2. It didn’t let me hyperlink. The divorce law for 1855 is at http://content.lib.utah.edu/cdm4/document.php?CISOROOT=%2Futhisstat&CISOPTR=2217&REC=6&CISOBOX=divorce

  3. Thanks for the links.

    In modern times, you can get situations where both spouses work or where prenuptial agreements were signed. If polygamy is multiple independent marriages, I wonder how later marriages would work in light of previous agreements; or, more importantly, the limitations of prenuptial agreements in light of what a court may decide regarding a previous marriage.

  4. Hi theobromophile,
    The slope gets much more slippery with the “live and let live” crowd. Seriously, do we think it stops with same-sex marriage and polygamy? Pedophiles will want their rights too. Who are to judge these people? We just need to celebrate diversity;)

  5. Paedophiles… and those who are into beastiality… and heaven only knows what permutation of anti-civilisation the Left will dream up after this.

    Each step will undermine our related laws (regarding family, child support, consent, contractual rights) until we do not recognise ourselves as being part of a legal order.


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