If anything at all, Wendy Kaminer wonders:
“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.”
My interest in the ethical status of polygamy is kindled after I read Martha Nussbaum’s latest book, and she devotes a whole chapter to the treatment of LDS members, including a detailed analysis on Reynolds. I would highly recommend her book to anyone interested in the ethical and legal philosophy of the First Amendment.
I agree with Kaminer’s argument that polygamy should not be categorically prohibited. What I mean by that is that the ethical status of polygamy cannot be determined by virtue of its definition alone. To define it in the simplest and purest form, polygamy is simply the phenomenon of having multiple marriage partners. In my opinion, this definition is insufficient to determine the ethical status of any particular instance of polygamy. For example, is the marriage based on consent? How are the spouses treated? I think different answers to these kind of questions will make the ethical status of any particular instances of polygamy different.
So, does this make me some kind of *gasps* moral relativist? Actually, no, because I consider myself a moral realist at heart. What I mean to suggest is that I cannot make an objective statement about the ethical status of polygamy simply based on its formal definition. But that does not mean that I think such statements cannot be made, say, about slavery: at least I cannot think of a single instance which I can say that slavery should not be categorically prohibited, no matter what the actual circumstances of any of its particular instances.
Kaminer goes on to list an argument often marshalled against polygamy, and she shows that they do not justify a categorical ban:
“‘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.”
Again, I think Kaminer’s argument is sound: what is wrong with particular instances of polygamy isn’t polygamy itself, but rather something else, like child abuse or coercion. Polygamy isn’t a necessary cause of either child abuse or coercion, as both of those happen frequently outside of a polygamous context. Don’t get me wrong, I think child abuse is a morally horrific thing to do, but that doesn’t mean that a polygamous relationship involving consenting adults who do not abuse each other should be treated equally as a polygamous relationship involving minors who did not consent to the arrangement.
Notice, however, that this is purely an ethical argument, not a legal one. The state may find that, despite the neutral ethical status of polygamy by its definition, it still has a legitimate interest in prohibiting the practice. How can such a case be made plausibly? Well, if there is good empirical evidence that most polygamous relationships do in fact involve non-consenting minors or spousal abuse, the state, I think, has a legitimate interest in addressing coercion and abuse. This, however, still does not impinge upon the ethical status of polygamy, but at least there is a policy case to be made against it. Of course, I’m assuming that law and ethics are not identical here.
But on the other hand, if the state has no such evidence, then it really has no business in interfering in the relationships between consenting adults. Therefore, the policy/legal case against or for non-intervention in polygamy can only be deteremined empirically, not a priori by virtue of polygamy’s conceptual definition.
Again, this is not a morally relativistic claim, because, to use the slavery example again, the state ought to interfere in EVERY instance of slavery, no matter what the empirical circumstances are, simply because the fact that it is slavery. In fact, the slave could have willingly given himself up to his master, and his master could treat him with the utmost lavishness, and yet the state should still intervene.
The distinction that I’m making is one of adequacy. In the case of slavery, it is adequate to make a claim about its ethical status (that it is morally unacceptable) by virtue of its definition alone. Whereas in the case of polygamy, the definition alone is inadequate to make any kind of ethical statement about it, without relying on the actual facts of the matter.
I want to emphasize that the scope of my claim is rather limited: it is solely concerned with the ethical status of polygamy, and not even that really. To state it even more precisely: I’m solely concerned with whether one can justifiably make a claim about polygamy’s ethical status based on its conceptual definition alone. I have made no meaningful claims either way about how polygamy ought to be treated as a POLICY issue, but Kaminer does:
“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?”
My intuition is that the conclusion is correct, but a more developed response would take too much time. Again, questions of policy ought to be separated from questions of morality, because the two are driven by different considerations: sometimes they converge, but sometimes they don’t.