Polygamy Still Outside Scope of Law and Family Attorney Practice, But is it Gaining Traction?
The general population’s approval rating for same-sex marriage in the U.S. has morphed from a marginal amount to a majority over the last few decades, and now the law reflects that reality. But what about the practice of polygamy, or having more than one spouse? It is now as hotly debated and nearly as disapproved of as same-sex marriage was in the 1950s, but why is that, exactly? If you apply for a polygamous marriage license, as this Montana trio did, you’ll need more than a family attorney on your side to get what you’re looking for, but again: how come?
A family attorney who’s interested in the issue might be able to tell you that the roots of the bias toward monogamous marital arrangements in U.S. law dates back to an 1878 Supreme Court ruling that decided that “polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy,” though the unelaborated rhetoric doesn’t explain why.
A recent 2015 lawsuit in Detroit contends that bans on polygamy “violates the Free Exercise and Equal Protection Clause of the U.S. Constitution,” which is more or less what got same-sex marriage legalized in every state last month. But for a family attorney practicing in Utah, Nevada, Montana or Arizona, the push to legalize polygamy hasn’t really gained momentum. Most of these states, where polygamy has gained some notoriety for its association with the Fundamentalist Church of Jesus Christ of Latter Day Saints, are content to advocate for decriminalization.
But what is it, exactly, about the concept of multiple spouses that unnerves us, as Americans, so much? For the feminist camp, polygamy is often impugned for its establishment and reinforcement of the social patriarchy in a home, as most conjoint marriages indeed involve one man with multiple women. Thus the dominance and power of the man is exerted through his accumulation of wives with no more thought than other worldly possessions. This case is bolstered by the fact that many “second wives” are brought into relationships while underage, thus exploiting their lack of legal consent and amounting to child abuse.
Still, while this argument may be a compelling social one, it falls somewhat short on legal grounds. Critics of current law have pointed out that “banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse.”
A highly progressive family attorney might agree with the hopeful Montana trio (who are still awaiting an answer from Yellowstone County’s chief civil litigator about their marriage license) when they say that the whole issue is less about some concocted notion of “family values” that undergird our nation’s stability (values which are ever shifting, by the way), and more “about people forming the families the way they want.”
It’s a hard task to codify the philosophical and ideological concepts of American freedom when it comes to legitimizing families in the eyes of the government: who is included, why, and what happens to those who get left out are big, big questions that are coming up with more frequency and weight each decade.