Polygamy is protected by the right to privacy only if marriage is private. I don’t think marriage is private. So I don’t think polygamy is protected by privacy. But I also think this will be an argument which will be seriously advanced, and it only takes a few judges these days to make it the law of the land.
Most of the discussion of polygamy at the moment relates it to the arguments over same-sex marriage. As I noted the other day, some argue that if the state cannot justify confining marriage to one man and one women, then it also cannot justify restricting marriage to one man and one woman. In fact, those who reject same-sex marriage because one of the fundamental purposes of marriage is having children, would have a hard time making a similar criticism of polygamy. Polygamy, as practiced in this country, anyway, does baby-making better than most other marriages.
Today, though, I want to take up another argument, one that links polygamy to another hot issue of the day: abortion. The Supreme Court’s abortion decision, Roe v. Wade, rests on a prior case, Griswold v. Connecticut. Griswold found a constitutional right to privacy, not in the actual words of the Constitution, but in its “penumbra.” There has been a long debate ever since about whether this was a just reading of the Constitution. However, after 40 years of relying on the decision in other laws and other court decisions, a federal right to privacy is well established in American law and custom.
In The Case for Marriage, Linda Waite and Maggie Gallagher begin debunking several myths about marriage. The most important and dangerous of those myths, in my estimation, is the idea that marriage is only a private matter between husband and wife. Much of the rest of their book, and of current marriage scholarship, is devoted to showing how wrong that myth is. Marriage, and the rate of marriage in a whole society, has enormous collective and public effects. Moreover, as Waite and Gallagher persuasively argue, marriage has the strong effect that it does on the couple because they have made a public vow that is publicly supported and has public consequences. This is why cohabitation is not the same as marriage, not for the couple and not for society.
Michael McConnell, a professor of law at the University of Utah and still on any Republican short list for the Supreme Court, argues that Reynolds v. United States, the foundational case that prohibits polygamy, represented judicial overreaching. The polygamist who was prosecuted, McConnell wrote, “asked only that the Government leave him and his wives alone.'’ Most of the argument about this claim has turned on whether McConnell was saying that religious practice trumps criminal law (which is not what he says). It seems to me, though, that on its face this argument is more clearly asserting a right to privacy about marriage decisions, including polygamy.
If the right to privacy about birth control within marriage, the issue in Griswold, is well established, then there might be a colorable case that there is a right to privacy about marriage in the first place. So, if liberals want to preserve a right to privacy, both for its own sake and to preserve abortion, they might have to swallow polygamy. The ACLU seems to have made this leap already. This could lead to some serious soul-searching for other liberal groups – which would be especially difficult for them since most polygamists are extremely conservative.