Opponents of gay rights often warn that legalizing same-sex marriage would inexorably lead to legalizing polygamy. Maybe it would, and maybe it should. Denying gay couples the right to marry violates state constitutional guarantees of equality, as the California and Massachusetts high courts have rightly ruled. (The Supreme Court of California also held that the right to marry is fundamental.) Surely Mormons have the same rights to equal treatment under law—and of course, they have a substantial First Amendment claim to engage in multiple marriages according to the dictates of their faith.
So why is polygamy illegal? Why don’t Mormons have the right to enter into multiple marriages sanctified by their church, if not the state? There’s a short answer to this question but not a very good one: polygamy is illegal and unprotected by the Constitution because the Supreme Court doesn’t like it. Over one hundred years ago, the Court held in Reynolds v. U.S. that polygamy was “an offence against society.” The Reynolds decision upheld the criminal conviction of a man accused of taking a second wife in the belief that he had a religious duty to practice polygamy, a duty he would violate at risk of damnation. The Court compared polygamy to murders sanctified by religious belief, such as human sacrifice or the burning of women on their husbands’ funeral pyres.
Even in Victorian America, this comparison made little sense. (Most Victorian women, I suspect, would have chosen polygamous marriages over death by burning.) Today the Court’s analogy is as anachronistic as a ban on adultery. After all, what’s the difference between an adulterer and a polygamist? And if it’s not illegal for a married man to support a girlfriend or two and father children out of wedlock with them, how can it be illegal for him to bind himself to them according to the laws of his church? Why is a practicing Mormon with two wives a criminal while Staten Island Congressman Vito Fosella, recently embarrassed by the discovery of his second family, is simply a punchline? What’s the moral and practical difference between a man who maintains multiple families without the approval of any church and a man who maintains multiple families with his church’s approval?
Nontheists who favor civil unions for everyone—taking the state out of the business of approving or disapproving religious matrimonial rites—should be especially supportive of the First Amendment right to engage in polygamous marriages sanctified by any faith. Whether or not polygamy should be legalized so that people in polygamous marriages enjoy equal rights and entitlements (like Social Security benefits), it should at least be decriminalized. Why should we care about other people’s private religious ceremonies? How dare we criminalize them?
“Polygamy encourages child abuse,” people say, citing instances involving the marriage of older men to underage girls. Assuming for the sake of argument that this is true, it still doesn’t justify categorical prohibitions on polygamy. Alcohol consumption may encourage sexual violence; it’s often blamed for date rape. Should we prohibit its use, as members of the Women’s Christian Temperance Union demanded over one hundred years ago? Or should we prosecute alcohol-fueled violence whenever we find it?
We rightly prohibit violence, not drunkenness, even though some drunks are violent; we should prohibit child abuse, not polygamy, even though some polygamists are abusers. To do otherwise is to court worse abuses than we seek to prevent, as the raid on the Search for Zion compound in Texas this past April demonstrated. On the basis of one anonymous phone call (that later appeared to be a hoax), Texas authorities forcibly removed more than 460 children from their parents without evidence of actual abuse in each case. Parents and children were ordered to undergo DNA testing (Who knows how long the state will maintain the DNA database, or to what uses it will be put?), and the children were summarily consigned to the notorious Texas foster-care system. They were subsequently reunited with their parents on order of Texas courts, which rightly held that the state had acted unlawfully, but who knows how much damage was done?
It’s hard to explain the relative complacency or cautiousness that initially greeted this extraordinary abuse of power, except with reference to religious bigotry or squeamishness about polygamy. Members of the Search for Zion sect tried taking their case to the public—some attorneys defended their rights, and the American Civil Liberties Union eventually expressed more than cautious concern for them—but predictably, the national conversation generally reflected little sympathy for the civil liberties of people involved in a religious group far outside the mainstream. Imagine the reaction had the state instead invaded a community of Christian Scientists and removed all their children after receiving an anonymous tip that one child had been harmed by the refusal of his or her parents to provide medical care.
The Search for Zion case is different, some reply, because polygamy is illegal. Exactly. Polygamy’s illegality doesn’t make the state’s actions less abusive—imagine the reaction if the state summarily removed all the children from a commune in which parents were suspected of smoking dope—but it does provide authorities with an argument, however flawed.
Of course, I’m not suggesting that any parent have a religious right to harm their children by denying them medical care, subjecting them to sexual molestation, or otherwise abusing them. I’m simply pointing out that the state should not abuse the power to prosecute people or forcibly remove their children because authorities don’t approve of their “lifestyle.” Gay men were once routinely suspected of being pedophiles, a suspicion that persists today but with considerably less prevalence and respectability. Indeed, opposition to gay marriage still relies on specious arguments about the harm it poses to children. Some fools still compare homosexuality to bestiality, just as the Supreme Court once compared polygamy to human sacrifice. We progress when we base the extension of rights on reason, not bias or judicial hyperbole.
Wendy Kaminer is a lawyer and social critic. She blogs on civil liberties at thefreeforall.net.