Rick Santorum is wrong about almost every single thing ever on earth, but he wasn’t wrong when he said that the push for equal marriage could open up a debate about legal polygamy. Not because, per Santorum’s homophobic fever dream, gay and lesbian couples are so morally beyond the pale that basically anything goes in America once they say “I do,” but because the most fundamental question raised by the marriage equality movement is why the state confers rights and benefits to certain kinds of families while denying them to others.
The fight for equal marriage has forced the government to explain why the marriage of a straight couple serves a compelling government interest while the marriage of a lesbian couple does not. Increasingly, the courts have come up short trying to defend that kind of blatant discrimination, which is why cases against equal marriage are falling like dominoes. So the question of legal polygamy, no matter where you land on the answer, poses a similar challenge. It asks the state to explain why a marriage between two consenting adults is more legitimate than a marriage between, say, five consenting adults.
It’s a question Ross Douthat is interested in, too. In his New York Times column this weekend, Douthat adds polygamy to his typical inside-voice conservative argument about why equal marriage, single parents and sexually active teenagers are a real threat to America. Citing a Gallup finding that support for polyamorous relationships has nearly doubled from 7 percent to 16 percent, Douthat writes:
Can Americans say a permanent “no” to recognizing plural marriage once we’ve rooted for the Browns [of “Sister Wives,” a TLC show about a polygamous family] to get a “My Sisterwife’s Closet” jewelry line off the ground? Can a cultural left that believes in proliferating gender identities and Bruce Jenner’s essential womanhood draw the line, long-term, when a lesbian couple wants to include their baby’s biological father in their legal family, or when the child of polygamists stands up in court to say he wants his dad recognized as his mother’s legal spouse? Is a culture where prominent men routinely have multiple kids with multiple wives across multiple decades going to permanently deny marriage rights to people who want the same thing, except all at once?
Douthat is right to raise these as interesting questions. But while the gist of the column is, per usual, what hath progressivism wrought, there's more at play here than just conservative handwringing.
Legally recognized polygamy could be institutionally disruptive in a way that equal marriage for gay and lesbian couples never has been, and never could be. Because the current system is built to recognize couples and serial marriages, but not couples who "want the same thing, except all at once."
State recognition of multi-partner families would require restructuring things like taxes and parental rights, all points that Casey E. Faucon, a William H. Hastie Fellow at the University of Wisconsin Law School, grapples with in a paper on “marriage outlaws.” In it, Faucon imagines proposals that might regulate polygamous marriages, specifically those that are religiously-based, and predicts the possible shortcomings of each.
Her primary focus is of the rights of women and protection of children in these marriages. Regulating polygamy, she argues, holds the potential for bringing these relationships “into the light” and possibly addressing power differentials and abuses associated with patriarchal, religiously-based polygamy:
Regulatory oversight can also protect against the types of abuses that we traditionally associate with polygamy, such as statutory rape, incest, child marriages, lack of consent, and lack of education and healthcare for women. By providing women with individual court‐appointed attorneys and providing them with information regarding their rights and available bargaining tools, this proposal also attempts to increase the bargaining power and status of women in polygamous marriage.
Douthat points to poly relationships as another example of bourgeois liberalism, and there are undoubtedly poly relationships that fit into the same kind of frame used in the equal marriage debate. Picture a family with three moms and four kids or two moms and a dad, two kids and a dog who want to share a suburban home in a neighborhood that is zoned for single families.
So is it really all that unspeakable to ask why a blended family can’t share health care and tax breaks if they are co-parenting a child? Why a consenting, non-abusive relationship involving multiple partners can’t find recognition in a legal contract that confers benefits? If the state has a vested interest in the family because families privatize care that can otherwise fall to the government -- childcare, elder care, etc. -- then why does the number of adults in the family really matter?
And since, as Faucon's work makes clear, polygamous relationships happening in the United States right now that are coercive, abusive and playing out in the shadows, could government regulation of polygamy address the problem? And where do these patriarchal polygamous marriages fit into the current conversation happening around religious liberty? (Douthat and other social conservatives don't tend to connect these two, but the issues are inextricably linked.)
Questions like this deserve thought and attention, though it's unclear that they'll be seriously considered. For some, it seems the “prospect of polygamy" -- rather than a question of contract law, equal rights or a serious engagement with very real abuses happening across the country -- is just another drum to beat in the conservative culture wars.