Legal status of polygamy in the US - justification on other than moral grounds?

Great Debates
1

As far as I can tell from a (not exhaustive) Google search, polygamy remains illegal in the US.

Recent appeals against bigamy laws in Utah succeeded only insofar as clarifying that simple cohabitation per se by multiple partners is not a crime (assuming everyone is of legal age, not being coerced, etc.).

Phrased differently, while it is no longer a crime for any number of people (with any permutation of genders) to co-habit, it remains a criminal offence to receive, or apply for, more than one marriage license.

My question, then, is on what grounds might ‘the courts’ justify continuing to uphold such a law? What compelling state interest is met by denying marriage licenses to polygamists and by making it a crime to obtain more than one? I note explicitly that laws directed against individuals who would obtain multiple licenses for the purpose of committing fraud, or to subvert laws outlawing sex with minors, etc., can be created separately and specifically to address such matters and, in any case, are independent of polygamy? At the end of the day are laws prohibiting polygamy not fundamentally based on moral objections in the same way that bans on same-sex marriage are?

(I recognize that this may be better suited for GD. However, I am hoping to obtain ‘factual answers’ to my question, or at least educated guesses based on facts from legal history and precedents, the COTUS ‘approach’ to such matters, etc.).

Thanks!

2

Yeah a bit GD.

It’s illegal in most places except significantly Muslim countries, and even illegal/severely limited in some of those.

Tax code is not set up to accept it, and it’s not as simple as adding a new status.
Inequal (especially if polygamy is assumed = polygyny). Also, the very rich would benefit most as poorer people can’t support multiple wives.
Subject to fraud/extra benefits (although it still occurs with secondary wife “dependents”).
In the long run, could encourage gender imbalances. Too many men with no marriage prospects.
Bigamy is not solely forbidden for morals. Often the second wife (or husband) is SOL inheritance-wise, and often isn’t even aware of the first marriage. Would you ask that all marriage licenses be signed by previous wives (husbands)?

3

I’ve seen at least one SCOTUS opinion that enforcing the morals of the overwhelming majority is allowable as long as it doesn’t infringe on any rights or principles stated in the constitution.

Unfortunately, I can’t remember the particular case, or even if is was a majority or dissent opinion.

4

I have no moral objection to polyamorous marriage, but I need these questions answered before I’d sign up to support it.

  1. Two people are married. A third wants to join the marriage. Does #3 have to marry both partners, or just one?

  2. As above, if only one, does the other spouse have an avenue to object other than divorce?

  3. If one person is married to two others, which one gets to make end-of-life decisions if there’s not a living will?

  4. If someone wants a divorce, do they have to divorce everyone in the marriage or just the person they have problems with?

  5. If there’s a divorce, how is alimony decided?

  6. If there’s a divorce, how is child custody decided?

  7. If there’s a death, how is inheritance decided?

Etc

5

The general argument was that this was a logical extension of allowing the definition of marriage to de redefined in the push for gay marriage rights. After all, polygamy had and has a much wider and longer recognition than gay marriages across the world in societies in general.

Presumably the logic is that marriage is meant to be a one-to-one (exclusive) contract between two people.
A country can define marriage in whatever way it wants, and current Western social policy is to encourage monogamous arrangements.

If (as happened with gay marriage) there were a groundswell of demand to allow polygamy, I suppose the government would eventually recognize it. I’m not sure it’s a common living arrangement in very many places where it’s not dictated by society from above and where women have more freedom of choice. It seems humans tend to pair up unless coerced. Our typical pattern is “serial monogamy”.

Plus, gay marriage was a lot more adaptive to the previous model. Spousal rights were easily translated to a same-sex marriage. It’s unclear how things like life insurance, health insurance, pensions, benefits, social security, even custodial rights would work in a plural marriage. How does division of assets work if A marries B, then also marries C, then ten years later divorces B? 33%? 50%?

If A decides to divorce, but the child is comfortable in a household with several half-siblings and where 3 or 4 other adults provide child care, is it fair to take the child out because A is the biological mother? Or will the departing mother always lose custody by comparison to the remaining multi-parent, stable household? How about multiple marriages if two men and two women are in a group marriage, can A divorce C but not D? Or is every connection a pairing? Compared to that can of worms, same-sex marriages were easy to define.

All these issues are irrelevant in a patrimonial arrangement like in the world’s past history - the man was the breadwinner, he had to support the wives, he had final say over divorce and custody, he was obliged to support them all, women were generally told who to marry, “love” had a lot less to do with it.

That’s not the system we want, I’m assuming.

6

Not if it wants to be serious about the “separation of church and state” and “freedom of religion” thing. Or just in general the whole “freedom” thing. Generally part of “freedom” is the ability to make contracts, even if they’re social in nature, and have them enforced.

This could all be so easy if this country weren’t so dumbed down, and we actually viewed things through a lens of freedom and stopped fetishizing the government as anything more than the social referee.

7

Mostly the laws just aren’t set up for it. In most polygamous societies (which are not only Muslim-/ it’s pretty common across Africa), the deal is that the man serves as head of household and that’s that. Implementing it in a way that promotes equality would require some serious thinking. I’m sure it could be done, but the demand just isn’t there to do so.

8

Well… no, remember, he had to provide for his wives.
From what I understand, in Jewish law, a woman can get a divorce if the husband can’t provide.

9

In a society where more and more couples are not married to each other (possibly now a majority), the concept of bigamy is essentially moot. If I make a working arrangement to live with several women as multiple “wives”, how could it possibly matter to us whether we are legally married or not?

10

Absolutely not a majority. The 2010 census put the number at 12% of couples.

At most you can say that the majority of younger people live as a couple at some point before marriage, whether to that person or another. It’s ridiculous to think of that as bigamy in any form; it’s just a variation of serial monogamy, which has been the norm in our society for its history. The vast majority of people still trend toward legal marriage as the default long-term relationship, partly because our entire legal and economic system preferentially rewards formal marriage.

11

Moderator Note

EdwinAmi, political commentary of this kind is not permitted in General Questions. Please confine yourself to the factual aspects of the OP in this forum. No warning issued.

Colibri
General Questions Moderator

12

How does this currently work when two parents are making end of life decisions for their offspring? Or perhaps children making end of life decisions for a parent? Could the method used to resolve issues in those cases be a model for what to do with regards to multiple spouses?

13

Hmmm. Interesting.

It seems that the main reason against ‘formal’ recognition of polygamous marriages are the potential legal complications. Well, maybe not “legal” but having to do with taxes, divorce, child custody issues, and so forth.

Perhaps I’m being a bit too sanguine, but my feeling is that laws and regulations could and would be devised to deal with those situations (e.g. maybe upfront prenuptial contracts for all polygamous marriages that explicitly deal with such eventualities?).

But the driving force should be a person’s choice and not a bunch of ‘what ifs’. In my opinion, to focus on the latter may be betraying the fact the you are approaching the situation with a moral prejudgement. IOW, if you believe in individual freedom, you would probably presume (?hope) that the other stuff can be addressed in due course.

14

Perhaps the laws promoting monogamous marriage is for a moral reason.
One way the laws promote monogamous marriage is the way that the mistress does not get palimony . That is, the mistress cannot say “Now I am no longer having sex with him, I want a share of his house.” …A moral reason for that is to reduce the temptation for mistresses seducing men as a form of gold digging… Of course it may still happen that a mistress can win “gold”, but only after the divorce occurs. Plenty of times the divorced man then does something different… the gold digger is not automatically winning… So its not 100% effective but the law at least blocks a mistress, especially one who does not pay the mortgage (or toward other assets), from the divorce court. The polygamous partners , where they are working and perhaps expect to be able to be paid out a share of the family home, cars, etc, because they paid for them (paid the mortgage,etc) are at risk of losing that in various jurisdictions … the laws do not make it clear how it works and seem to forbid the case going to the divorce court.

One issue with not having legal recognition of relationships (where cohabitation is involved) is that social security may then pay less to the couple in the heterosexual monogamous relationship…

The law has been unfair when it comes to social security here in Australia. What has happened is that an unemployed partner (male-female monogamous) is expected to be supported by the working partner, and if they are both unemployed they get less than twice individual social security.

However, for other co-habitation relationships the social security just ignored the partners income , and paid the individual the full rate is if they were just sharing accommodation or lodging.

15

It is legal in Buddhist countries as well. The former king of Bhutan has 5 wives. If they are all consenting adults I don’t see how it is any business of the government.

16

Except what purpose does formal marriage have if not to make the legalities easier? Even some religious societies in earlier times didn’t care much about formalizing marriages until children appeared, so that their legitimacy could be proven. And legitimacy was about inheritance. Insisting that marriage per se was about morality is a backformation; before fairly modern times most societies would have laughed. It’s only a particular type of religious morality that requires it. For practical purposes marriage greases the law. That doesn’t mean that the law couldn’t or shouldn’t be changed; it does recognize the incredible depth of the changes that would be necessary.

17

Sorry, didn’t mean to imply that only Muslim countries do it (Zambia is one exception I know of), but they do have the strongest scriptural/whatever links to it. I think Islam is even more strict in some ways in limiting the number of wives.

About Bhutan it just suggests that it’s socially acceptable, but not that there is a law for or against it.

18

Does the government of Bhutan give any sort of recognition to any other marriages?

Doing it this way accomplishes nothing but guaranteeing full employment to lawyers, for many years to come. If you’re really serious about wanting polygamy to be legal, then you should start putting some serious thought and research into all the different angles that could come up, and then proposing legal solutions for all of them before they do. IIRC, there are over a thousand ways that the laws of the US intersect with marital status, and almost all of those are going to be more complicated with polygamy.

19

The whole point of marriage is that it takes what would otherwise be a purely private matter and make’s it the concern of everybody. When I marry - assuming my marriage is legally recognised - this has all kinds of effects on tax status, inheritance, tenancy rights, obligations of support, etc, etc. This will obviously affect individuals who are not party to the marriage - the person who would inherit my property on my intestacy if I were not married is obviously adversely affected by my marriage - and society as a whole (e.g. its effect on tax revenues).

So, if the kind of relationship you are contemplating is “not the business of the government”, then it’s not marriage.

20

These are excellent points and I’m not sure that anything I could propose will make them any less key or any more soluble. But it won’t stop me . . .

While I won’t disagree that “formal marriage” makes the legalities easier, it does a lot more than that (as I know you know). A formal or ‘legal’ marriage also signals to the world and to the spouses themselves that the couple’s (or, perhaps, the triple’s or even the n-tuple’s) commitment is special; that it goes beyond a convenience or an infatuation; that it will be permanent and that it will be based on sacrifice for the other, etc. I would hope that couples would not presume to monopolize such a ‘contract’, i.e. to prevent it from being extended to triples, etc.

In terms of anticipating and addressing the inevitable legal issues, my fear is that it could never be done satisfactorily and thus, if granting legal status to polygamy was contingent upon developing an advance set of solutions, it would forever be delayed. Indeed, as you point out, Chronos, there would be myriad possibilities to consider and resolve. By definition, then, in practice, a complete set of solutions will be impossible to achieve (even after the fact, let alone before).

That is why I am advocating the ‘dive in’ approach. To wait, to think everything through in advance, guarantees perpetuating the status quo essentially forever, and that is unfair to those who want nothing more than to exercise their personal freedom. Waiting while solutions and laws were developed, and then waiting again while a consensus was achieved, would simply consolidate traditional marriage and set an impossibly high bar for any deviation from it.