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One big, happy polygamous family?

August 4th, 2011

by Carolyn Moynihan

In the wake of New York’s same-sex marriage law plural marriage is getting an airing, but no-one wants to talk about the kids.

Three years ago Texas authorities caused a sensation in the United States with a raid on the polygamous Mormon sect living at Yearning For Zion Ranch, during which 401 children were taken into state custody. The pretext for the crackdown was not so much polygamy, although it is a crime in Texas, but forced sex with under-age girls taken as wives by older men. In other words, the wellbeing of children was the main issue.

Community leader Warren Jeffs, already in trouble before the raid, is currently in jail awaiting trial in Texas on sexual assault and bigamy charges. If he sits tight a bit longer, though, the bigamy charge may collapse; with same-sex marriage apparently in the bag, polygamy is looking like the next big thing in the United States — and no-one seems to care what happens to the kids.

While Jeffs has been cooling his heels in clink, television networks have promoted his cause by rolling out shows such as Big Love and Sister Wives. The Browns of Sister Wives, all four of them, have talked about how happy they are with their choice and how well adjusted their 16 children are, and how the children are carefully educated about choice and consequences, and how there are no underage or arranged marriages. Fictional versions of the lifestyle add to the gloss by leaving out what one script writer calls the “yuck factor”.

Now that the small screen has demystified and sentimentalised polygamy it is the turn of professors and judges to legitimise it. And what better time to do so than in the wake of the latest green light for same-sex marriage? Straight after New York conferred the right to marry on homosexuals, Ralph Richard Banks, a Stanford law school professor predicted that polygamy and incest must now be legalised: “Over time, our moral assessments of these practices will shift, just as they have with interracial marriage and same sex marriage.”

Right on cue, in mid-July, the patriarch of the Brown family, Kody Brown, filed a challenge to Utah’s law against polygamy. His lead counsel, Jonathan Turley, a law professor at George Washington University, wrote in the New York Times that the suit is based not on any analogy with same-sex marriage but on the Supreme Court’s 2003 decision in Lawrence v. Texas, that states could not use the criminal code against what two consenting adults — in that case, homosexuals — do in private. Privacy is the issue, he insists, not what society finds acceptable.

However, if it comes to acceptability, Turley has an answer ready for critics: society already accepts other kinds of plural relationships. He says: “It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and ‘cohabits’ with those partners, it is considered a crime.”

We are going to hear this argument a lot more in the new battle for the rights of polygamists. It has been used also by another law professor, Adrienne D. Davis of Washington University at St Louis, in a 92-page article in the Columbia Law Review of December 2010. With interesting timing, the university sent out a press release about the article earlier this month.

But Davis, like Turley, prefers not to hitch her wagon to the same-sex marriage star. She says it’s a red herring in the polygamy debate since same-sex marriage is concerned with the couple relationship and polygamy with plural relationships. In fact she is not really interested in marriage at all (“I am no particular fan of the institution of marriage”); a power feminist, she talks, rather, of “intimate relationships” and rules for “bargaining for equality” within them.

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