Thursday, December 15, 2005

Is Polygamy Protected by Privacy?

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.


Unknown said...

Assuming for the moment that polygamy in the US is driven by religious belief, would the practice of female genital mutilation be another practice that might fall under the "right to privacy", assuming also that female genital mutilation is driven by religious belief?

Both assumptions are questionable, but how far will people extend the right to privacy, and by what criteria will the legislatures and courts determine that one practice is covered and another is not?

Gruntled said...

I find that the case of female genital mutilation is the most effective example to use when trying to cure students of relativism. Sporcupine thinks we could get a constitutional amendment against polygamy quickly. I am not certain. I do think we could get whatever laws were necessary against female circumcision/mutilation.

SPorcupine said...

I'd say that an amendment could pass quickly if people thought the issue was a live one. I don't want to run through the streets raising that alarm, though.

Intellectually, it's interesting to imagine the strains that could emerge within the Latter-Day Saints.

On limited information, my sense is that a large majority, including the leadership of the main denomination, would start out saying polygamy is completely off the table. They'd agree with the American conservative Christian view, and emphasize that commonality.

But my understanding is also that there's historic basis for a very different response. That response would say: Our original teaching called for polygamy, and that's still part of our teaching. What changed was an added teaching that we could comply with civil laws. Take away penalties, and we'll go back to polygamy.

That second response would be in the minority, but it would get a hearing. It would be a major debate. Plus, there would be related new tensions among politically conservative religious groups about whether and how Mormons were allies.

But that, too, is only interesting as imaginary sociology. I can't actually look forward to seeing that upheaval in their religious community or our shared political community.

Gruntled said...

Amen. I think the lead, though, will come from some kind of religious polygamists, though cultural/secular ones will join in. Perhaps the polyamorists will come to the fore, and then the whole movement will be discredited for a generation.

everydayepiphanies said...

I've enjoyed reading this blog. I've always considered myself fairly liberal with a few exceptions.

After some personal soul-searching during our current family crisis involving polygamy, I began to see myself as less liberal. I didn't have a name for it or a way to explain it. Now I've realized I'm a centrist! I may even write a post about it. Is it okay if I link to the Gruntled Center?

If you read my blog you will know that I think the issue of polygamy is live in every possible way. Do you really think an amendment would pass? I am also evolving into an activist and I find this possibility intriguing.

Saving Jordan Raine

Gruntled said...

I see what you mean. Yes, I do think that we could have a polygamy crisis -- meaning it is not cut and dried, as I think an amendment preserving "in God we trust." A polygamy crisis would be one of the rare cases where the center just has to mobilize.

As Jordan's grandma's blog shows, polygamy is already a live issue.

Please do link to The Gruntled Center -- there is an important dialogue to sustain here.