Is there a right to polygamy? Marriage, equality and subsidizing families in liberal public justification

Journal of Moral Philosophy

Volumn 8, Issue 2, 2011, Pages 246-272

  March, Andrew F ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

justifi cation; marriage; political liberalism; polygamy

Indexed keywords

EID: 79954581546     PISSN: 17404681     EISSN: 17455243     Source Type: Journal    
DOI: 10.1163/174552411X563583     Document Type: Article

References (43)

1. See, e.g., Maura I. Strassberg, "Distinctions of Form or Substance: Monogamy, Polyg amy and Same-Sex Marriage," North Carolina Law Review, 75 (1997): 1501-1624;
2. James M. Donovan, "Rock-Salting the Slippery Slope: Why Same-Sex Marriage is Not a Commitment to Polygamous Marriage," Northern Kentucky Law Review, 29: 3 (2002): 521-590
3. Ruth K. Khalsa, "Polygamy as a Red Herring in the Same-Sex Marriage Debate," Duke Law Journal 54 (2004-2005): 1665-1693.
4. LAWRENCE V. TEXAS (02-102) 539 U.S. 558 (2003), Antonin Scalia dissenting, June 26, 2003.
5. I address the question of incestuous unions in Andrew F. March, "Marriage, Sex and Future Persons in Liberal Public Justification: Is There a Right to Incest?" Journal of Applied Philosophy, Vol. 27, No. 1, 2010, pp. 39-58.
6. Most treatments of the problem of polygamy focus on it within the context of religious pluralism or multiculturalism. From the vast literature on multiculturalism, for discussions of polygamy see, for example, Amy Gutmann, "The Challenge of Multiculturalism in Political Ethics," Philosophy and Public Affairs 22: 3 (1993): 171-206
7. Susan Moller Okin, Is Multicul- turalism Bad for Women? (Princeton: Princeton University Press, 1999)
8. Sarah Song, Justice, Gender, and the Politics of Multiculturalism (Cambridge: Cambridge University Press, 2007). Bhikhu Parekh considers the case for polygyny and polygamy separately in the context of his broadly sympathetic defense of multiculturalism. He argues that polygyny "violates the principle of the equality of the sexes and has unfortunate consequences, [while] so far as polygamy is concerned, the case is not so conclusive." But since as practiced today, polygamy is associated with unacceptable inegalitarian consequences, "we are right to continue to disallow it."
9. (Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA: Harvard University Press, 2000, p. 292.)
10. Tom Brooks advances a similar argument in "The Problem with Polygamy," Philosophical Topics, Vol. 37, No. 2, pp. 109-122 (2009).
11. Of course in the United States the question is not so much one of philosophical justification but of a particular legal tradition of recognizing the free practice of religion as a specific right. On the treatment of polygamy as a problem for American constitutional guarantees of religious freedom, see Clark B. Lombardi, "Nineteenth-century Free Exercise Jurisprudence and the Challenge of Polygamy," Oregon Law Review 85 (2007): 100-175;
12. Joseph Bozzuti, "The Constitutionality of Polygamy Prohibitions after Lawrence v. Texas: Is Scalia a Punchline or a Prophet?" The Catholic Lawyer 43 (2004): 409-442;
13. Alyssa Rower, "The Legality of Polygamy: Using the Due Process Clause of the Fourteenth Amendment," Family Law Quarterly 38 (2005): 711-731;
14. Michael G. Myers, "Polygamist Eye for the Monogamist Guy: Homosexual Sodomy ... Gay Marriage ... Is Polygamy Next?" Houston Law Review 42 (2005-6): 1451-1486;
15. David L. Chambers, "Polygamy and Same-Sex Marriage," Hofstra Law Review 26 (1997): 53-83;
16. Elizabeth Larcano, "A 'Pink' Herring: The Prospect of Polygamy Following the Legalization of Same Sex Marriage," Connecticut Law Review 38 (2006): 1065-1111.
17. Martha Nussbaum has recently contributed to the polygamy debate, again through the lens of religious freedom and Mormonism and has raised doubts about a convincing rational basis or "compelling state interest" against the practice, should the law guarantee sex equality. (Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008), pp. 197-8.)
18. Although this attitude amongst liberals is older than the multicultural turn. In On Liberty, J.S. Mill addressed Mormon polygamy not as a form of autonomous experimentation, but as an oppressive practice for women. Yet, he insisted that no community was entitled to carry out a " civilizade ... to force another to be civilized." (J.S. Mill, On Liberty, in On Liberty and Other Essays, John Gray, ed. (Oxford: Oxford University Press, 1991), p. 102.)
19. On Mill's views on polygamy and their insufficiency for a contemporary liberal, pluralist, and feminist approach to illiberal religious communities, see Bruce Baum, "Feminism, Liberalism and Cultural Pluralism: JS Mill on Mormon Polygyny," Journal of Political Philosophy 5:3 (1997): 230-253.
20. William Galston, Liberal Pluralism (Cambridge: Cambridge University Press, 2002), p. 23.
21. The dilemma of recognition is, of course, one of the areas (another being competitions) identified by Parfit, Scanlon and others as when it is appropriate to level down as part of our commitment to equality, as opposed to priority or welfare. For example, given the choice between giving one of two siblings a gift or privilege and giving it to neither of them, we are strongly inclined to choose the latter so as to avoid favoritism. (See Derek Parfit, "Equality and Priority," Ratio 10 (1997), pp. 202-221)
22. T.M. Scanlon, "The Diversity of Objections to Inequality," in The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003), pp. 202-218.)
23. Although this is not unheard of. Scientology's claim to religious status has been questioned in various European countries, including in an ongoing fraud trial in France. (See Angelique Chrisafis, "Church of Scientology faces fraud trial in France," The Guardian, September 9, 2008.) There was also a controversy in Amsterdam in 1988 when a "Church of Satan" was deemed to be an ordinary brothel and forced to pay taxes on its earnings. Genuine Satanists, on the other hand, were recognized by the Royal Navy for the first time in 2004, thus earning the privileges of performing Satanic rituals aboard ship and to have a non-Christian Church of Satan funeral should they be killed in action. ( http://news.bbc.co.uk/2/hi/uk-news/3948329.stm )
24. For a discussion of the same-sex marriage controversy in America which takes seriously the costs of altering the public meaning of the concept (such as "marriage"), see Andrew Stivers and Andrew Valls, "Same-sex Marriage and the Regulation of Language," Politics Philosophy Economics 6:2 (2007): 237-253.
25. A similar proposal for disestablishing marriage can be found in Tamara Metz, "The Liberal Case for Disestablishing Marriage," Contemporary Political Theory 6 (2007): 196-217. Metz's concern, however, is with the liberal concerns for fairness and equality in the private sphere and with our positive reasons for valuing marriage (she thus calls for replacing marriage with an "intimate caregiving union status.") Metz agrees that polygamy would be legal under her scheme (although she does not consider at length any specific arguments related to it).
26. That is, I accept the distinction advanced by Dworkin between goal-based and rights-based defenses of rights and freedoms, and am obviously concerned about the answer to my question from within the latter strategy. (Ronald Dworkin, "Is There a Right to Pornography?" Oxford Journal of Legal Studies 1:2 (1981): 177-212.)
27. And if these demands cannot be justified, then we are committed to tolerating these other ways of living." (Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford: Oxford University Press, 1996), p. 165.)
28. For the lengthiest treatment of this problem, see Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004)
29. The symposium on this book in Journal of Applied Philosophy, Vol. 25, No. 4, with contributions by William Charlton, John Haldane, David Archard, Tom Brooks and a reply by Nussbaum.
30. See, in particular, Jonathan Haidt, Paul Rozin, Clark McCauley and Sumio Imada, "Body, Psyche, and Culture: The Relationship of Disgust to Morality," Psychology and Developing Societies 9:1 (1997), pp. 107-131.
31. For a thoughtful formulation of this position, see Brooks, "The Problem with Polygamy."
32. See also Angela Campbell, "Wives' Tales: Refl ecting on Research in Bountiful," Canadian Journal of Law and Society, Vol. 23, Nos. 1-2, pp. 121-141 (2008)
33. "Bountiful's Plural Marriages," International Journal of Law in Context (Forthcoming) for analysis of women's experiences with plural marriage within Canada's only openly polygynous community, Bountiful, British Columbia. Campbell's research amongst members of the Fundamentalist Mormon community in this town presents a counter-narrative to this common portrayal of the FLDS wife as submissive, silenced, and isolated.
34. In her defense of legalizing polygamy, Cheshire Calhoun gives numerous examples of how polygamy has been associated with many different kinds of social, economic, and emo tional arrangements. (Cheshire Calhoun, "Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy," San Diego Law Review 42: 1023-42.
35. See, for example, Adam Robinson, Bin Laden: Behind the Mask of the Terrorist (New York: Arcade Book, 2002.
36. See, for example, Elizabeth F. Emens, "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence," New York University Review of Law & Social Change 29 (2004): 277-376.
37. See also Calhoun, "Who's Afraid of Polygamous Marriage," pp. 1037-1042.
38. See Richard A. Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992), Chapter 9.
39. Also, from the blog that Posner shares with Gary Becker: "My view is that polygamy would impose substantial social costs in a modern Western-type society that probably would not be off set by the benefits to the parties to polygamous marriages. Especially given the large dis parities in wealth in the United States, legalizing polygamy would enable wealthy men to have multiple wives, even harems, which would reduce the supply of women to men of lower incomes and thus aggravate inequality. The resulting shortage of women would lead to queuing, and thus to a high age of marriage for men, which in turn would increase the demand for prostitution. Moreover, intense competition for women would lower the age of marriage for women, which would be likely to result in less investment by them in education (because household production is a substitute for market production) and therefore reduce women's market output." ( http://www.becker-posner-blog.com/archives/2006/10/should- polygamy.html)
40. See, for example, Valerie M. Hudson and Andrea M. den Boer, Bare Branches: Security Implications of Asia's Surplus Male Population (Cambridge, MA: The MIT Press, 2004)
41. Jonathan Rauch, "One Man, Many Wives, Big Problems," The Atlantic (Unbound), April 2006, http://www.theatlantic.com/magazine/archive/ 2006/04/one-man-many-wives-big-problems/4829/.
42. I owe this objection also to a personal conversation with no less a defender of public reason and the need for a strict rational, secular basis for discriminating against private sexual and romantic behaviors than Stephen Macedo. That the author of "Homosexuality and the Conservative Mind" ( Georgetown Law Journal 84:2 (1995): 261-300) does not find it obvious that we are required to move further down the slippery slope suggests the need for public reason liberals to consider the case of polygamy.
43. (Ronald Dworkin, "What is Equality? 2: Equality of Resources," Philosophy & Public Affairs 10:4 (1981): 283-345, p. 332.