by Jonathan Rauch
I'm a gay marriage advocate and a polygamy opponent. And, yes, my positions make sense together. Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage is important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There's no better path to inequality, social unrest, and authoritarian social structures than polygamy. Read the fine print here.
So why do I agree with Steve Chapman—one of the country's best columnists, imho—that polygamy should be decriminalized? Because sometimes the best way to stop a fire is with a firebreak.
Right now, no state recognizes plural marriages. You can only have one marriage license at a time. But Utah goes further, deeming it a criminal offense to act or talk as if in a plural marriage. A man can live with two women and call them his girlfriends, and that's not a problem. He can marry one of them and call the other his girlfriend, and that's not a problem, either. But if he calls them both wives, he could go to jail.
Years ago, when states had an unquestioned right to ban contraception and racially mixed marriage and consensual oral sex, this was legally sustainable. But in today's world, where lifestyle choices have been broadly deregulated, throwing people in jail for speech and expressive behavior (wearing wedding rings without a license, for example) is too legally vulnerable on too many fronts to stand up for long. Worse, making criminal cases out of so-called polygamists brings them attention and martyrdom. Better to ignore them and relegate them to the fringe.
The government needs to draw a line against polygamy, but the line needs to be defensible. Criminalization isn't. Licensure is. The best way to deny would-be polygamists the reality of marriage—that is, a legally recognized marriage license—is to allow them the pretend version.
A test case, by a Utah man named Kody Brown who is legally married to one woman but claims several others as his "spiritual wives," is headed to court. I hope social conservatives have the sense to fall back to a defensible line and draw a clear distinction between criminalization and licensure, rather than linking the two. This is an occasion where their interests' and libertarians' align.
The Dish 