Martha Nussbaum

is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago

What is wrong with polygamy?

Nineteenth-century Americans coupled it with slavery, calling both "the twin relics of barbarism." Today, it is used as a scare image to deter people from approving same-sex marriage, lest it lead down a slippery slope to

that

horror of horrors.

But what, exactly, is bad about it? Looking at the Texas sect at the Yearning for Zion ranch, so much in the news, will not tell us, because that sect allegedly forced underage girls into marriage. The case then becomes one of child sexual abuse, a crime hardly unknown in the monogamous family, although it gets less splashy publicity when it occurs there. Disturbing things are fun to contemplate when they can be pinned on distant "deviants," but threatening when they occur in families like one's own.

Mormon polygamy of the 19th century was not child abuse. Adult women married by consent, and typically lived in separate dwellings, each visited by the husband in turn. In addition to their theological rationale, Mormons defended the practice with social arguments - in particular that polygamous men would abandon wives or visit prostitutes less frequently. Instead of answering these arguments, however, Americans hastened to vilify Mormon society, publishing semi-pornographic novels that depicted polygamy as a hotbed of incest and child abuse.

Self-righteous Americans hastened to stigmatize Mormon marriage as "patriarchal," while participating contentedly and uncritically in an institution (monogamy) so patriarchal that, for many years, women lost all property rights upon marriage and could not even get a divorce on grounds of cruelty. In one respect, Mormon women were miles ahead of their sisters living in monogamy: They got the vote in the territory of Utah in 1871, 49 years before the ratification of the Nineteenth Amendment gave the vote to women all over the nation.

The hypocrisy of the monogamist majority reached its height in the denial (often heard in Congress) that there could be a serious religious argument for polygamy: hypocrisy, because the monogamists were denying their own heritage. Joseph Smith did not pull polygamy out of the air. He found it in the Old Testament, where many patriarchs are represented as polygamous. The very wording of the Ten Commandments, a chief pillar of American public morality then as now, presupposes polygamy. In Deuteronomy, the commandment not to "covet" is divided into two parts. The command not to covet the neighbor's spouse is addressed only to men, and the command not to covet the neighbor's house, field, etc., is addressed to all of the people of Israel. A standard Torah commentary used in my temple puts it this way: "Because men could have more than one wife, an unmarried woman could covet another's husband and even end up married to him."

Yet in 1878, the U.S. Supreme Court would uphold an anti-polygamy statute with these words, extraordinary from justices who were supposedly Bible readers: "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people." (The Jews were in fact an Asiatic people, but mainstream Christians usually forgot that, thinking of Jesus as a blond, blue-eyed child. So the justices did not see themselves as repudiating their biblical heritage, although this is precisely what they were doing.)

All this shows us a deplorable, if ubiquitous, human tendency: People who feel threatened by a new group demonize the group by imputing to it allegedly nefarious practices in the areas of gender and sexuality. Think of anti-Semitism in European history, Islamophobia, and - perhaps above all - fear and loathing of gays and lesbians.

But what should we say about polygamy itself, in our own time? What, if anything, is really wrong with it?

First, as traditionally practiced, polygamy is one-sided. Men have rights that women do not. Sex equality could, then, give the state a strong interest in disallowing religious claims to practice polygamy, as long as the one-sidedness is maintained.

What about, though, a practice of plural contractual marriages, by mutual consent, among adult, informed parties, all of whom have equal legal rights to contract such plural marriages? What interest might the state have that would justify refusing recognition of such marriages?

Well, children would have to be protected, so the law would have to make sure that issues such as maternity/paternity and child support were well articulated. Beyond this, a regime of polygamous unions would, no doubt, be difficult to administer - but not impossible, with good will and effort. It is already difficult to deal with sequential marriages and the responsibilities they entail.

The history of Mormon polygamy shows us that the state and public opinion are very bad judges of what adult men and women may reasonably do. When people are insecure, they cling to the "normal" and vilify those who choose to live differently. Someday down the road, we may recognize that adults are entitled, as John Stuart Mill saw long ago, to conduct such "experiments in living" as suit their own plans and projects, as long as they inflict no harm on nonconsenting parties. The state must protect vulnerable dependents: children and the elderly. It must also protect adult men and women against fraud and force. Beyond that, it should leave the field of intimate sexual choice to a regime of private contractual arrangement. If polygamy turns out to be a bad idea, it won't survive the test of free choice over time.

Martha Nussbaum (martha_ nussbaum@law.uchicago.edu) is author, most recently, of "Liberty of Conscience."