Nagging legal question: Will polygamy become the next same-sex marriage?

Future-gazing journalists take note: The question above is the lede of an article in the April edition of First Things magazine.

Author John Witte Jr. devoutly hopes the answer is no.

Witte, the noted director of Emory University’s Center for the Study of Law and Religion, presents that viewpoint at length in “The Western Case for Monogamy over Polygamy” (Cambridge University Press). The issue arises due to the gradual legal toleration of adultery and non-marital partnering that culminated in the U.S. Supreme Court’s Obergefell opinion last June that extended such  liberty to same-sex marriage.

The high court’s wording leaves open whether polygamy laws still make sense. This is “becoming the newest front in the culture wars,” Witte writes, and legalization may seem “inevitable” after Obergefell. We've had federal district court rulings supporting religious polygamists that Utah is appealing at the 10th Circuit. The case involves a family from the “Sister Wives” cable TV show that has helped make polygamous families seem less offensive and more mainstream-ish.

Witte writes that aversion to homosexual partners has been based historically on religious teaching, but rejection of polygamy is quite different. Polygamy occurred in the Old Testament (and usually demonstrated resulting ills and family strife). But it was opposed by the non-biblical culture of classical Greece, and in modern times by Enlightenment liberals on wholly secular grounds. (For more on biblical and Mormon history, see this piece by the Religion Guy.)

Witte observes that multiple mates are the pattern among “more than 95 percent of all higher primates,” and yet human beings “have learned by natural inclination and hard experience that monogamy best accords with human needs.” Among the practical ethical problems Witte sees for society: “Polygamy rewards the powerful -- men capable of winning the competition for wives -- while harming the vulnerable, which includes women, children, and men less competitive in a winner-take-all mating market.”

He finds evidence that most men and women “are instinctively attracted to long-term, single-partner intimacy and instinctively repulsed and angered if forced to share their bed and partner with a third party.”  Moreover, “over the centuries, successful societies have consistently migrated from polygamy toward monogamy, but never in the other direction.” And in the U.S., polygamous sects are often mired in criminality and abuse of women and children.

Then there's that religious freedom aspect. In the U.S., the Republican Party’s founding platform in 1856 famously proclaimed “the duty of Congress to prohibit in the Territories those twin relics of barbarism -- Polygamy, and Slavery.” And polygamy produced the first important U.S. Supreme Court limit on the Constitution’s religious freedom. The dispute involved The Church of Jesus Christ of Latter-day Saints (which later set aside founder Joseph Smith Jr.’s “plural marriage” doctrine in 1890).

There was no question the criminal defendants in the 19th Century “Mormon cases” were obeying deeply held religious tenets. But the Supreme Court decided the Constitution protects religious “opinion” but not “actions which were in violation of social duties or subversive of good order,” and cited as other examples religious human sacrifice and self-immolation by Hindu widows.

The court stated that polygamy “has always been odious” in the Christian West, although practiced in Africa and Asia. A second ruling stated that bigamy and polygamy tend to “disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society,” and support of polygamy offends “the common sense of mankind.”

Sourcing: The Supreme Court’s key Mormon edicts were Reynolds v. United States (98 U.S. 145) from Utah in 1879, and Davis v. Beason (133 U.S. 333) from Idaho in 1890. A leading historian on this is law professor Sarah Barringer Gordon at the University of Pennsylvania, author of “The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America” (2002).

So, what about the 21st Century?

Journalists: Are there any social theorists, moralists, Muslim traditionalists or “Mormon Fundamentalists” prepared to argue against Witte’s broadside? What are advocates of free sexual choice saying about multiple spouses in the wake of Obergefell? Would the post-Antonin Scalia Supreme Court find any legal basis to continue the traditional polygamy ban?

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