Is it time for a discussion of polygamy as a viable life choice tolerated by the federal government? With the Supreme Court striking down the Defense of Marriage Act, it may be the time to start publicly considering whether the state has any legitimate interest in monitoring the number of people in a marriage, not just the gender. And unlike spouses in same-sex marriages, polygamists can go to jail.
Will Wilkinson, blogging at The Economist, makes an argument that as with prostitution, our criminalization of polygamy often does the opposite of what’s intended and increases the victimization of women and children because of its shadowy status in culture:
As a former tour-guide at Mormon historic sites, I have encountered more than one fundamentalist Mormon family in which the strutting husband seems to regard his flock of servile wives like glorified property. We're not wrong to want to discourage this. Moreover, those remote compounds in which exile fundamentalist communities brainwash their girls and discard their surplus boys are intolerable horrors. But this is all the more reason to bring polygamy out from the margins of our society. As with sex work, the horrors here have little to do with anything inherent in the practice and almost everything to do with the fact that we've made it illegal and dishonorable. …
If a man can love a man, a woman can love a woman and a man. And if they all love each other... well, what's the problem? Refraining from criminalising families based on such unusual patterns of sentiment is less than the least we can do. If the state lacks a legitimate rationale for imposing on Americans a heterosexual definition of marriage, it seems pretty likely that it likewise lacks a legitimate rationale for imposing on Americans a monogamous definition of marriage. Conservatives have worried that same-sex marriage would somehow entail the ruination of the family as the foundation of society, but we have seen only the flowering of family values among same-sex households, the domestication of the gays. Whatever our fears about polyamorous marriage, I suspect we'll find them similarly ill-founded. For one thing, what could be more family-friendly than four moms and six dads?
Well, I imagine a family court judge trying to figure out what to do when things fall apart will be tearing out his or her hair, but that’s really a logistical issue, not a particularly legitimate one. There have been some hitches in the courts when dealing with same-sex monogamous families when there are custody disputes, but having actual licensed marriages diminishes the problem somewhat (is this partner truly one of the child’s caretakers?). Polygamy will bring some interesting challenges to family court, and the solutions that countries that permit polygamous marriages use sometimes involve treating women and children in ways the United States (or other Western countries) probably doesn’t want to emulate.