Polygamy emerged as a recurring topic in the avalanche of commentary unleashed almost the moment that the Supreme Court extended marriage equality to same-sex couples in Obergefell v. Hodges. Since the topic is bound to come up in law school discussions in classes as well as faculty workshops, it’s worthwhile to pause and ask why. Articles in Slate, Politico, the New York Times and Religious Dispatches rushed to debate whether polygamy will be the next frontier in marriage equality. The deluge is partly explained by the perennial popularity of polygamy as a topic – from TV shows Big Love and Sister Wives to immense press coverage when a state decides to enforce anti-polygamy laws – and the freedom of pro-gay commentators to say what they really think once the Supreme Court finally ruled. But why just polygamy? Why not child marriage and incest, two other outré expressions of intimacy that commanded quite a bit of the Court’s attention in oral arguments.
One answer is that the slope is more slippery in the direction of polygamy than it is in child marriage and incest. The path from Obergefell toward marriage equality for polygamists might be short and clear, while the route to abolishing age-of-consent and incest statutes could be more like a forested hillside full of social and legal impediments to marrying your sister or a 6th grader. That’s probably true, but there path from Obergefell to polygamy is probably a lot more circuitous than many people think.
I leave to constitutional scholars the pleasure of reading the doctrinal tea leaves. My focus is broader, more about law in action than law on the books. I see relationships – marital and otherwise – in contractual terms. That framework is consistent with Justice Kennedy’s observation that marriage has been characterized by both “continuity and change.” Those changes – wives having contractual capacity; freedom from marital rape – are creatures of contract. If marriage were a pure and unchanging status, ordained by God or nature, then it would be impervious to human efforts to alter it. The marriage chapters of my book Love’s Promises: How Formal & Informal Agreements Shape All Kinds of Families (Beacon Press 2015) use this contractual framework to argue for further doctrinal changes such as better valuing of homemaking labor and enforcing fidelity agreements.
The other chapters in Love’s Promises focus on the families I call “Plan B” to contrast them with the more common arrangements that I call “Plan A” (marriage; having kids with the fun free stuff lying around the house instead of through reproductive technologies or adoption). The big point is that love comes in different packages, and that both contracts and the not-legally-binding arrangements that I call “deals” shape and sustain those packages. Instead of seeing marriage – Plan A – as a status and departures from it like cohabitation as contractual, I see contracts (alongside varying elements of status) running through both common and uncommon families.
Linking love and contracts has a long history. Since the founding American law has seen marriage as a mix of status and contract, in different proportions at different times. Family scholars like Ariela Dubler and Elizabeth & Robert Scott have mapped these changes, though Janet Halley has contested the dichotomy. I have quoted Sir Henry Maine’s famously observation in Ancient Law (1861) that the move in progressive societies has been from Status to Contract in just about everything I have ever written.
Training a contractual lens on the slippery slope helps explain why marriage equality for gay people is unlikely to lead to child marriage or incest. But polygamy is a different story. For a decade now marriage equality and gay rights litigation more generally has inspired fundamentalist Mormons to seek to decriminalize their sacred institution. Though law has yet to allow polygamists to take that initial step toward legitimization, a Montana thruple seized the moment of post- Obergefell media frenzy to apply for a marriage license. The national media coverage of that thwarted effort to leap frog from criminalization to full legal recognition, coupled with the media’s relative silence re: age of consent and incest laws, suggests that many people see the slope between same-sex and plural marriage as pretty slippery. A contractual lens shows that they’re probably right re: child marriage and incest, but the slope toward polygamy may be quite a bit sticker than people think.
In the oral arguments Justice Alito asked GLAD attorney Mary Bonauto whether a state would have to recognize a 12 year old’s marriage. The minimum age at which a person can marry has greatly changed. At common law, girls could marry at 12 and boys at 14, but many statutes raised those ages in the 19th century. Now it differs greatly from state to state, with Californians able to marry at 18 and Marylanders at 16. (In most states even younger children can marry with the parents’ or a court’s consent.)
In contrast you have to be 18 years old to make a binding commercial contract like buying a car.
This shows that the slope from same-sex to child marriage is nothing to worry about. Family law already allows teenage children to contract for marriage long before they can buy a car, and sometimes before they can drive. Moreover I know of no movement other than the highly-marginalized North American Man/Boy Love Association (NAMBLA) that seeks to lower the age of consent. Absent both logic and foment, it’s hard to see how same sex marriage could lead states to return to the era of 12 year old brides.
Justice Alito asked the federal government’s attorney why granting marriage equality to same-sex couples would not lead to legal recognition for “two . . . unmarried siblings . . . [who have] lived together for 25 years” and share household expenses and chores as same-sex couples do. Here as well the slope seems fairly sticky.
First, there’s no movement of siblings or other relatives agitating to marry. For decades gay rights organizations have pursued a coordinated campaign to overturn the ban on same-sex marriage and other challenges to what Mary Bonauto called the “stain of unworthiness” in her opening argument. Even if such a movement were to arise, moreover, it seems likely status-based arguments could justify maintaining the ban on incestuous marriage. I have two sisters, and we share a status relationship. It’s forever, ordained by genetics and having grown up in the same family with the same parents. It’s not a contract because we didn’t consent to the relationship.
Like other contracts, marriage requires consent, the free choice to enter the union and also to exit. While you can divorce a spouse, the furthest you can get from even the most difficult sibling is estrangement. This central difference between the two kinds of kinship presents a formidable obstacle that would prevent slippage from same-sex marriage to incest.
Polygamy presents the hardest case because the logic of gay rights litigation extends neatly to polygamists’ bids for legitimacy. Plural marriage has long been criminal, just as gay sex was in a good part of the country until Lawrence v. Texas struck down sodomy laws. As Justice Alito repeatedly queried Mary Bonauto in the oral arguments, the arguments that would allow two women to legally marry could be extended to also protect “two men and two women” who want to form a four-person marriage.
Another parallel is the antiquated rhetoric at play in lots of case law addressing both same-sex sexuality and polygamy. As recently as 1986 the Court condemned the so-called “infamous crime against nature” as a crime worse than rape. Likewise, the 1879 Supreme Court case Reynolds v. U.S. reasoned that polygamy can be a crime because it’s “almost exclusively a feature of the life of Asiatic and African people” and “odious among the northern and western nations of Europe.” The racist roots of Reynolds cry out for revisiting the issue, but it remains good law.
Polygamy remains a feature of splinter sects of the Mormon Church. Though Reynolds and other cases forced the Church to abandon polygamy between 1890 and 1905, a century later headlines from the 2008 raid on the Yearning for Zion ranch in Texas demonstrate that thousands of fundamentalist Mormons continue the practice. When a state steps in to press charges, polygamists insist that the logic of gay rights cases like Lawrence should be extended to decriminalize the marriages they call “celestial.” So far courts have largely rejected these challenges -- the one recently brought by the polygamists featured in the reality show Sister Wives succeeded only in striking a Utah-specific provision making it a crime to be married to one person and live with another But at least onerespected jurist -- Christine Durham of the Utah Supreme Court -- would protect fundamentalist Mormon’s religious freedom to enter plural marriages.
Even so, we need not lose sleep about same-sex marriage equality leading to the Social Security Administration having to recognize all 78 of Warren Jeffs’ wives. Courts could decriminalize polygamy without giving it the full rights and duties of two-person marriages. Marriage equality for polygamists would require advocates to get around American polygamy’s deep entanglement with the history of actual Mormon treason in the 1850s, when Brigham Young raised arms against the U.S. government and established a theocracy controlling all three branches of Utah government. Last I checked, gay people had neither waged armed warfare against the United States nor established a separatist theocracy.
The slope, in short, is not nearly as slippery as some fear and others hope.
Speed bumps ahead.
Before Sister Wives polygamists like Kody Brown can collect social security benefits accrued from his four wives they have to traverse the intermediate states of decriminalization then enforcement of private agreements like trust arrangements within a plural family. Yes, gay people trod the same route, spending decades in contractual purgatory on the way from criminality to full citizenship through marriage. My discussions with a handful of middle-aged plural wives back when I was on the University of Utah faculty (2002-2007) suggest that contractual arrangements like trusts do play a role in some polygamous families.
Courts and commentators could do worse than focusing on the nature of the exchanges within plural families to see if they are like one-on-one marriages. One in-depth ethnography about how polygamist households operate -- Janet Bennion’s Women of Principle(1998) – details the many exchanges of caretaking and financial support in polygamist families in a Montana community, and Irwin Altman & Joseph Ginat’s Polygamous Families in Contemporary Society(1996)similarly documents household agreements about issues like sleeping arrangements. Scholars and advocates will update those studies so that a decade or two from now the polygamist equivalent of the Family Equality Council’s amicus brief in Obergefell can furnish courts and commentators with the information they will need to decide whether plural marriage should remain criminal, be decriminalized, get treated like cohabitation, or accorded the full-throttle rights of civil marriage. It’s bound to take at least as long as the decades-long push that culminated in Obergefell before the Supreme Court finds itself at that intersection