Utah’s anti-polygamy laws came under fire on December 2013, by US Federal Judge Clark Waddoups. He ruled in Brown v. Buhman that this state’s ban on polygamy was unconstitutional.
This year, Utah state Senator Deirdre Henderson sponsored a measure that would decriminalize this practice but not legalize it. The Utah state Senate approved this bill unanimously. If signed into law, plural marriage would be punished with fines of up to $750 and community service, but would no longer warrant a jail sentence of up to five years as a third degree felony.
Let us react to this initiative under six headings: 1. religion, 2. sociology, 3. libertarianism, 4. aesthetics, 5.feminism and 6. practicality.
1- Religion. From a religious point of view, this new policy, if signed into law is to be welcomed. The Church of Latter Day Saints has traditionally favored this marital practice. According to some Mormon interpretations, polygamists will enjoy glorification in heaven. The Utah territory was settled in 1847 and this practice was then common. It was only ended in 1890 as a precondition for statehood, which would quell continued persecution. Still today numerous followers of the Fundamentalist Church of Jesus Christ of Latter-day Saints engage in this relationship. If we take freedom of religion seriously, we must support this bill becoming law. No one under it is forced to engage in polygamy. It would only provide that those who do so will not be imprisoned; they should not be fined either, but that is a fight for another day. If polygamy between consenting adults is not a victimless crime, then what is? Critics charge it will harm the children resulting from such unions, but they offer no evidence for this contention.
2- Sociology. What will be its social effects if this bill becomes law? Boys and girls are born in roughly equal numbers, but do not survive to adulthood in like manner. Males succumb more heavily to suicide, imprisonment, murder, occupational and other accidents, military deaths, etc. Thus, there are more women than men of marriageable age. (In China matters are reversed, with their one child policy, but Utah is not located in that country). Polygamy could even up these odds. No longer would there be numerous women unsuccessfully seeking a marriage partner. But would this not be unfair to males? Not really, given the greater statistical precariousness of male lives.
3- Libertarianism. From a libertarian point of view, the basic principle is to legalize anything between consenting adults. There is perhaps no more important arena of life in which this applies. Polygamy is a paradigm case. We already have serial plural marriage. There are those who have had many more than a single spouse over the years. But cross-sectional marriage, as well as time series, are equally voluntary.
4- Aesthetics. But is not this practice unseemly, disgusting, perverse, from an aesthetic point of view? De gustibus non disputandum. In tastes there is no disputing. One man’s meat is another man’s poison. Yes, for most people, polygamy does not pass the “smell” test. But most people do not have to participate in this type of arrangement. No one does. The proposed law only legalizes this type of marriage. No one is compelled to embrace it.
5- Feminism. How can we look at this institution from a feminist perspective? Polygamy is all well and good, but we want equality. Polyandry (one wife, several husbands) should be treated in exactly the same manner. What is good for the goose should be good for the gander, too. The “libertarian” does not agree with the “feminist” on many issues, but on this one, an exception, we can all agree. Yes, polygamy should be legalized, and polyandry too. Polyandry, moreover, might make sense in a nation such as China, where the eligible men outnumber their female counterparts.
6- Practicality. Under legalization, polygamists can more easily avail themselves of services that are available to all others. For example, if they are abused, they can access the police. Yes, of course, some young girls have in the past been forced to take older men as husbands, and this is a clear and present rights violation, but monogamous marriages are not perfect either. Such rights violations should be attended in either case.
Walter E. Block is the Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans.
READER COMMENTS
Warren Platts
Aug 29 2020 at 1:19pm
A point of terminology: polygyny is when a male has multiple female mates. Both polygyny and polyandry are forms of polygamy.
Garrett
Aug 29 2020 at 1:24pm
This blog has been doing Intellectual Turing Tests with essays both for and against the practice.
Dylan
Aug 29 2020 at 3:59pm
I think it is important to note that men outnumber women in Utah in every age group below the age of 50.
Phil H
Aug 30 2020 at 12:58am
“…but they offer no evidence for this contention.”
Isn’t this just code for, “I can’t be bothered to do the reading”?
I have no problem with Block taking a position on this issue, but to pretend that no one else has done the research is… incorrect.
Relevant bits of literature include “What’s the harm in polygamy?” in the Journal of Law and Religion; I found a review by Al-Sharfi; research from Turkey…
Bill
Aug 30 2020 at 6:18am
Seems to me that this treatment ignores an “elephant in the room, viz, in Warren Jeffs-style cults, girls as young as 12 have routinely been forced to marry the “prophet.”
Jon Murphy
Aug 30 2020 at 7:27am
See item 6. He explicitly covers that.
Bill
Aug 30 2020 at 10:30am
Jon, Thanks. My oversight.
Jon Murphy
Aug 30 2020 at 11:10am
You’re welcome! I missed it too on my first read-though. It’s kind of buried and a little glib.
Vivian Darkbloom
Aug 30 2020 at 9:03am
The framing of this discussion is confusing and inconsistent. The bill (as noted in passing in this blog post and emphasized by the bill’s sponsor) does *not* legalize polygamy; however, Block proceeds in his arguments as if it does (e.g., “6. Practicality. Under legalization, polygamists can more easily avail themselves of services that are available to all others.”)
And, the opening sentences to this blog post are incorrect: “Utah’s anti-polygamy laws came under fire on December 2013, by US Federal Judge Clark Waddoups. He ruled in Brown v. Buhman that this state’s ban on polygamy was unconstitutional.”
The case did not rule that the ban on polygamy was unconstitutional. Prior to the decision, Utah’s anti-polygamy law prohibited not only actual multiple marriages but also co-habitation with multiple sexual partners (de-facto marriage). As noted in the case “1. The Statute covers not only polygamy but “cohabitation”—a term that encompasses a broad category of private relations in which a married person “purports to marry another person or cohabits with another person.” Utah Code Ann. § 76–7–101 (West 2010).”
Only two of the parties in the Brown case were married under a marriage license. The case only struck down the prohibition of cohabitation. The ban against actual polygamy remains constitutional.
So, the bill does very little. It de-criminalizes actual polygamy but it doesn’t change the important fact that the law does not recognize marriages to multiple spouses. It is perfectly legal today to co-habit with multiple partners and have sexual relations with all of them as consenting adults. It is not legal to fraudulently obtain a marriage license and to represent that you are married simultaneously to more than one person and claim the legal consequences that flow from actual marriage.
So, am I to respond to the actual bill or Block’s arguments for legalization?
As far as the “practicality” of actual legalization, I’d note just a few obstacles:
Who are you married to for purposes of filing a joint tax return? The first spouse, all the spouses, or any one you may choose? Who has the right to social security survivor benefits? How is property treated in a divorce? Does the first spouse have priority? Are all spouses (“husbands and wives”) treated as married to one another (aside from the sexual aspect, that seems to be the logical conclusion); how do estate and inheritance laws apply to these relationships? How must employers treat these multiple spouses for benefits purposes? Etc. Etc.
I’m sure that some of this can be addressed by additional legislation but don’t blame lawyers for the increased complexity or for the inevitable gaming of the systems that actual legalization would encourage–file under “polygamists can more easily avail themselves of services that are available to all others” with the correction that such services are not available to *all* others).
robc
Aug 30 2020 at 11:15am
The answer to your latter questions are really important, and I solved them 30 years ago. Not saying I was the first, but it was a very unpopular opinion until a few years ago.
Separation of marriage and state.
The only role the state should have is in civil court for the inevitable contract disputes. And the courts would need to recognize that the contract often involves more than two parties ( and not just for polygamy). Many monogamous marriages have 3 parties to the contract: Husband, wife, and church.
I would prefer the marriage contracts be more formal than the current oral contract in the form of vows, but oral contracts are valid too. I think that would rapidly develop.
The idea bubbled up during the whole gay marriage kerfuffle, which was why I original suggested it back about 1990, seeing what was coming. It is a win-win. Anyone can get married and no one is required to recognize the marriage.
Zach
Aug 30 2020 at 11:29am
“The Church of Latter Day Saints has traditionally favored this marital practice.”
This is misleading. The Church banned new polygamous marriages in 1890, and today excommunicates members who engage in polygamy. Polygamous sects that engage in polygamy today have no connection to the Church, except in common ancestry.
Also, we prefer The Church of Jesus Christ of Latter-day Saints. Thanks.
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