The Supreme Court’s ruling last month in favor of same-sex marriage has renewed debate over polygamy and whether marriage should be restricted to relationships between two people.
Just last week, a man from Montana said the Supreme Court’s decision inspired him to apply for a license to marry a second woman. Nathan Collier, who was featured on the reality television show “Sister Wives,” said he will sue the state if it denies him the right to enter into a plural marriage.
“It’s about marriage equality,” Collier told the Associated Press. “You can’t have this without polygamy.” Kevin Gillen, a civil litigator for Yellowstone County, said he was reviewing Montana’s bigamy laws and expected to send a formal response to Collier by this week.
Chief Justice John Roberts’ dissent from the Supreme Court’s majority opinion raised the question of whether the majority’s rationale could be used to legalize plural marriage down the road.
“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”
Some are now using Roberts’ arguments to revisit the idea of legalized polygamy.
“It’s time to legalize polygamy,” writer Fredrik Deboer declared in Politico on the day of the Supreme Court’s decision, arguing that “the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need.”
Deboer’s essay provoked a series of responses, including one from Brookings Institution’s Jonathan Rauch, who defends gay marriage but not polygamy. “It’s no coincidence that almost no liberal democracy allows polygamy,” Rauch wrote.
Jonathan Turley, a law professor at George Washington University, wrote that the rationale behind the Supreme Court’s decision could cause some to reconsider polyamorous families, in which more than two people are in a marriage-like union. In an opinion piece for The Washington Post, Turley pointed to what he described as Supreme Court Justice Anthony Kennedy’s finding of “a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the ‘dignity’ of marriage.”
“What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, ‘the highest ideals of love, fidelity, devotion, sacrifice, and family’?” Turley wrote. “The justice does not specify.”
On the other hand, Ilya Somin, a law professor at George Mason University School of Law, said it’s difficult to identify the sort of prejudice against polygamous families that Kennedy cited as motivating unconstitutional prohibitions against same-sex marriage.
“With polygamy, it’s much tougher to find a group that would be sympathetic to the public where this group would suffer greatly if we didn’t have polygamy available,” Somin said. “The road to success for polygamy will be a much tougher one than same-sex marriage.”
Polygamists have not enjoyed much mainstream support historically. Support has increased from 5 percent in 2006 to 16 percent today, according to Gallup. The biggest one-year jump in public approval came in 2011, after TLC’s “Sister Wives,” about a polygamist family, first aired.
Although some Mormons practiced polygamy in the 19th century, the Church of Jesus Christ of Latter-day Saints has banned the practice since 1890. Some Muslims in the United States are quietly in plural marriages.
A federal judge struck down parts of Utah’s anti-polygamy law in 2013, saying the law violated the “Sister Wives” family’s right to privacy and religious freedom. The state’s appeal of the ruling is pending in the U.S. Court of Appeals for the 10th Circuit.
Eugene Volokh, a professor at the UCLA School of Law, is among those who say that polygamy has returned to the spotlight because Kennedy’s majority opinion doesn’t address why marriage should be limited to two individuals. Still, he didn’t foresee a swift march toward legalization of plural marriage.
“The policy arguments against polygamous marriages are pretty strong,” Volokh said. “It has been outright rejected by Western tradition.”
Six Supreme Court decisions have upheld bans on polygamy, and public support for polygamy remains low, so it’s unlikely the courts will change the laws anytime soon, said John Witte, a law professor at Emory University who recently published “The Western Case for Monogamy over Polygamy.”
Opposition to polygamy has focused on the potential harm to women and children, because studies have found correlations to abuse and other problems. But proponents historically saw plural marriage as a social welfare system, a defense against sexual abuse and possibly a means of increasing the opportunity for women to marry in times of war, Witte said.
Today, arguments in favor of polygamy focus more on sexual autonomy and individual choice.
“Because the definition of marriage or the form of marriage has changed and we’re open to constitutional change, it’s inevitable for this to be contested,” Witte said. “I wouldn’t be surprised if the issue of polygamy gains momentum, but I would be surprised if the court’s opinion changes in my lifetime.”
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