The XX Factor

How Do You Legislate Polygamy?

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In September, Lehi, Utah, police said they were looking into prosecuting the Brown family—better known as the polygamist family featured in the TLC show Sister Wives—for practicing bigamy. Today, Kody Brown, the family patriarch, is expected to file suit against the state of Utah to challenge its polygamy law. According to the New York Times:

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

There has been a lot of back and forth among feminists about whether or not polygamy is good for women. Some scholars who are in favor of decriminalizing polygamy say that sexuality shouldn’t be legislated, and that the practice can inspire bonding among women and destabilize traditional gender roles. According to Adrienne D. Davis, writing in the Columbia Law Review, lawyer and polygamist Elizabeth Joseph has even called plural marriage “the ultimate feminist lifestyle.” Those who are against decriminalizing plural marriage say that it almost always creates a power imbalance between men and women, and that young women, especially in stringently religious and patriarchal households, are often especially exploited.

Whether or not polygamy is decriminalized, there are certain subcultures that will continue to practice plural marriage under the radar. Perhaps the best way to keep polygamous practice consensual and the power equal is not to just decriminalize it, but to legislate it. Clearly our current marriage and family laws are not equipped to deal with marriages that involve more than two people–what if in a triad, two people want the third to leave? What if a fourth wife decides she made a huge mistake and wants to leave the marriage, but the two other wives want to stay? What if a woman has three husbands and decides to divorce the whole lot of ‘em?

So what’s the solution? Davis, in that same Columbia Law Review article, argues that polygamous couples could enter into contracts that are less like marriage contracts and more like commercial partnership contracts:

Partnership law has generated a comprehensive set of entrance and exit rules that attempt to reduce the cost of managing this constant instability. New parties may join the existing partnership without necessitating the formation of a brand new association…An individual partner can leave the partnership for any reason. Or, under some circumstances, the existing partners may vote for expulsion or seek judicial expulsion. Per the revisions, partner exits, whether voluntary or not, yield one of two consequences: The partnership may be dissolved and business wound up, or the remaining partners can buy out the exiting partner, seeking judicial appraisal of the stake if need be. These defaults provide mechanisms for the ongoing entrances and exits that so often characterize partnership associations, while minimizing the costs of continual dissolution and formation.

It’s a compelling legal thought experiment, but I’m not sure how it would work in practice. Do you think polygamy should be decriminalized in the first place?