Can Democracy Survive Polygamy?

Observing the landscape of America’s contentious debate over marriage, scholar Stanley Kurtz of the Hudson Institute, remarks, “It has become necessary to offer a case against polygamy.”

That such a claim would appear so utterly reasonable in our times is a clear sign that marriage is in big trouble. That trouble is not, for the most part, localized on the issue of polygamy, but the question of polygamy hangs over current controversies concerning same-sex marriage and the legal status of marriage as a social institution.

Stanley Kurtz is one of the nation’s most prolific writers on issues related to marriage, the culture, and questions of controversy. What makes Kurtz’s work especially important is the fact that he, though a stalwart defender of retaining the traditional definition of marriage, is able to write with a combination of clarity and charity. The argument Kurtz offers is, as time will tell, impossible to refute.

Kurtz’s most recent essay, “Polygamy Versus Democracy,” appears in the June 5, 2006 edition of The Weekly Standard. In this article, Kurtz begins by pointing to a television series about a polygamous patriarch and his complicated family. Most American readers will jump to the immediate conclusion that Kurtz is referring to the HBO miniseries, Big Love. Nevertheless, Kurtz is actually referring to a program popular in Egypt–a drama that focuses upon a polygamous family. As Kurtz indicates, the popularity of the television series set off a controversy that continues to rage through the Muslim world.

Meanwhile, in America, the debate over polygamy emerged among legal scholars long before HBO treated its viewing audience to Big Love. As Kurtz explains, “Today, the dominant school of thought in American family law favors recognition for the egalitarian practice of [the] multipartner union known as ‘polyamory.'” Further, “since the Supreme Court’s 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, law journals have begun to publish calls for the decriminalization, regulation, and recognition of the ‘patriarchal polygamy’ practiced today by so-called fundamentalist Mormons (but vigorously condemned by the mainstream church).”

A quick review of Justice Antonin Scalia’s dissent in the Lawrence case will remind us that Scalia warned back in 2003 that the Supreme Court had effectively put an end to all “morals legislation.” In this view, the legalization of polygamy becomes inevitable.

Progressive legal scholars who are pushing for the recognition and legalization of polygamy have, in the main, few positive feelings about polygamy. Most are committed to ideological feminism, personal autonomy, and the end of patriarchy. So why have these scholars become such ardent proponents of legalized polygamy?

The answer is simple–the legalization of polygamy would effectively end the institution of marriage.

As Kurtz explains: “Of course, liberal law professors aren’t defending polygamy out of affection for patriarchy. Their goal is to establish the principle that individuals have the right to create and define their families as they see fit. Ultimately, that would put same-sex marriage, polyamory, nonsexual group partnerships, and even singlehood on a par with traditional marriage, resulting in the effective abolition itself as a legal status.”

Thus, these legal theorists are quick to insist that the legalization of polygamy would mean, simultaneously, the acceptance of a wide and potentially unlimited range of romantic relationships.

Helpfully, Kurtz also reviews the story of how polygamy became a crime in the United States. In 1878, the Supreme Court upheld the constitutionality of anti-polygamy laws. The adoption of such laws was made a prerequisite for Utah’s entrance into the union. In the Reynolds decision, the Supreme Court not only upheld the constitutionality of laws banning polygamy; the Court effectively established heterosexual monogamy as the family structure on which democracy depends.

“In short, Reynolds v. United States was rightly decided,” Kurtz observes. “While America’s Founders took it for granted that marriage was a monogamous, heterosexual institution, the Reynolds Court, under pressure from nineteenth-century polygamy, wisely created constitutional doctrine allowing the state to defend a specific family form.”

The Court recognized that polygamy and polyamory were subversive of democracy itself, even as companionate marriage serves as the bulwark of a democratic culture.

Of course, polygamy has been practiced, in one form or another, in many societies, both ancient and modern. But, America experienced its most significant encounter with polygamy in the form of Mormon multiple marriages. In its Mormon form, polygamy was strongly patriarchal and the entire system depended upon a strong sense of communal commitment and a system of inflexible rules governing romantic and sexual relationships. In one sense, America had observed polygamy on both the cultural left and the cultural right.

“Today we take monogamy for granted,” Kurtz argues. “Yet for much of the nineteenth century, monogamy was questioned by ‘free lovers’ on the cultural left, as well as by Mormons on the cultural right. While the Mormon kingdom was growing out west, an array of proto-socialist communal experiments in ‘free love’ were cropping up in other parts of the country. These ventures were widely and heatedly debated. Virtually all free love communities were evanescent. Yet the experiments continued for decades, so that in nineteenth-century America, it was not taken for granted that monogamous marriage would retain its cultural preeminence.”

That’s why the Court’s decision in the Reynolds case is so important. Kurtz rightly observes that the Court’s decision effectively ended not only Mormon polygamy, but also the free love experiments common to the era.

The question of polygamy and democracy takes Kurtz to the Middle East and to the Muslim neighborhoods of Paris. He estimates that between 200,000 and 400,000 French Muslims live in polygamous families. These polygamous relationships are, more often than not, unassociated with romantic love. Instead, they function as social and economic units that are defined inward and often take on a posture of hostility towards the larger culture. This social structure explains, at least in part, the explosive riots that shook France earlier this year. In Europe, “polygamy has proven itself incompatible with Democratic values,” Kurtz observes. As he argues, “The Reynolds Court is being vindicated again before our eyes.”

Meanwhile, across America’s northern border, Canada is involved in its own experiment with polygamy and polyamory. In the Canadian case, the debate over polygamy grew directly out of efforts (successful in the end) to legalize same-sex marriage. In support of polygamy, McGill University law professor Angela Campbell argued that polygamy “works” in some cultures. Yet, Kurtz counters that Campbell “never stops to ask what it takes to make polygamy work.” What it “takes” is “a set of rules and attitudes that could never be imported to North America, except in the few closed, authoritarian communities where ‘patriarchal’ actually flourishes today.”

In other words, progressive legal theorists are now putting themselves in the position of arguing for a return to patriarchy–at least as an incremental step toward the complete abolition of marriage as a social and legal institution.

These same progressive legal theorists celebrate the possible acceptance of polyamory as an umbrella for what Kurtz describes as “a bewildering variety of relationship forms–everything from open marriage, to bisexual triads, to a man with multiple women, to a woman with multiple men, to large sexual groups, and many more.”

Now, the argument has migrated from the limited audience of law journals to the popular audience of cable television. HBO’s Big Love, created by two gay-marriage advocates, “is merely a hint of things to come,” Kurtz warns. “Radicals have long seen same-sex marriage as a lever with which to break the grip of monogamy. Should gay marriage be safely legalized, the radicals will emerge in force.”

In the end, Stanley Kurtz comes to a sobering conclusion: “Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the heart of the monogamous family.”

Christians believe more than that, of course. We must assert that monogamous heterosexual marriage is also the Creator’s gift for human happiness, the satisfaction of the husband and the wife, and the healthy nurture of children into capable adults. The current debate over polygamy–now spreading into the popular culture–is yet another reminder that if marriage is not limited to the union of a man and a woman in a monogamous relationship, it eventually can and will mean virtually anything, and perhaps even everything.