Ever since the Supreme Court decided Lawrence v. Texas (539 U.S. 558) in 2003, it has become fashionable among some to argue that the privacy concerns that led to striking down anti-sodomy laws should have the same result for criminal bigamy statutes that prohibit polygamy. Cable TV shows like Big Love and Sister Wives make it seem that polygamy is just another lifestyle that consenting adults should be free to choose. Justice Antonin Scalia’s passionate Lawrence dissent warning that “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” were “called into question” by the decision seems to have inspired some to try to reach that precise result. Id. at 590.
The gay couple who wrote Big Love may have felt that by making polygamy seem attractive, they would increase the chances for gay marriage. More recently, Kody Brown, the polygamist of Sister Wives, filed a lawsuit asking a federal district court to find the Utah criminal bigamy statute unconstitutional so that he and his illegal “wives” (thus, not wives in the eyes of the law) could return to Utah. He had to file in federal court because the Utah Supreme Court had already twice rejected this argument in 2004 (Utah v. Green) and 2006 (Utah v. Holm).
These efforts overlook one key difference between gay marriage and polygamous marriage. One permits equality between two married spouses; the other does not. And that in turn means that allowing polygamy would violate not only the Equal Protection Clause of the Fourteenth Amendment, but also the U.S. obligation under the International Covenant on Civil and Political Rights to “ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.” So important is this right that both the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women (CEDAW) have condemned polygamy in no uncertain terms. It should be “definitely abolished,” the Human Rights Committee ruled, because it violates women’s dignity rights and is an “inadmissible discrimination” against them. Similarly, CEDAW notes that it “contravenes a woman’s right to equality with men” and has “such serious emotional and financial consequences for her and her dependents” that it should be prohibited.
Moreover, the U.S. Supreme Court has repeatedly ruled against federal and state laws that give a wife fewer rights than a husband merely because of her sex, just as does a law permitting a husband to practice polygamy. Whether the law is so explicit that it makes the husband “head and master” of the home with the sole right to control property (Kirchberg v. Feenstra, 450 U.S. 455 (1981)) or denies a wife benefits awarded automatically to a husband, such as welfare benefits if the wife is unemployed (Califano v. Westcott, 443 U.S. 76 (1979)), housing and medical benefits for the wife’s spouse (Frontiero v. Richardson, 411 U.S. 677 (1973)), child-care benefits for a surviving spouse (Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)), or self-care benefits for a surviving spouse (Califano v. Goldfarb, 430 U.S. 199 (1977), and Wengler v. Druggists Mutual Insurance Company, 446 U.S. 142 (1980)), the Court has found violations of the Equal Protection Clause. Even when the rule discriminated against husbands, as in a state law requiring only husbands to pay alimony (Orr v. Orr, 440 U.S. 268 (1979)), the Court has required equality for husband and wife.
Why has so little attention been directed to the question of how polygamy denies women their right to equality in marriage? Undoubtedly, the fact that polygamy is illegal in the United States is the greatest contributing factor, as it means that most U.S. citizens have no understanding of how polygamy works, where it is legal, and of the extreme harm it causes to both wives and children. Another factor comes from an accident of litigation: The defense of polygamy arises in the context of criminal prosecutions, as it first did in the Supreme Court’s 1878 decision (Reynolds v. United States) finding no First Amendment religious freedom defense to the crime of bigamy by a Mormon. So far, no state has asserted in defense of its prosecution that it must ban polygamy to ensure that women have equal rights in marriage. But perhaps in this new human rights era, where international law is clear and the Supreme Court no longer favors giving husbands superior rights to wives, that will change.
Just how does polygamy violate a wife’s right to equality “of rights and responsibilities . . . as to marriage, during marriage and at its dissolution” with her husband? Answering this requires thinking about the rights and responsibilities that state law attaches to marriage—when it starts, during its existence, and when it ceases through divorce or death. At the beginning, each person has the right to marry the other; historically, the marriage also operated to sanction sex between the partners. With polygamy, however, the man has the right to marry as many women as he likes, while the woman is limited to one husband. What’s more, the sex lives of the husband and the wife are different: He has sex much more often than she.
Turning to the obligation to support the children, the polygamist husband has fewer responsibilities than each wife does concerning their children. The wives’ time, emotional attention, and financial resources are available to support the children; only a fraction of the husband’s are. The same is true when divorce or death comes. A typical intestate succession statute leaves one-third to a wife and two-thirds to their children, but when a man has four wives, each wife gets a fourth of a third, or one-twelfth, while he inherits one-third from each wife.
This is not some abstract theory. Polygamy is legal in many nations, and it is these nations’ laws that show how polygamy works in practice. At Georgetown Law, I direct the International Women’s Human Rights Clinic. Clinic faculty and students have worked with African women’s rights lawyers in many different countries investigating the harms caused by legal polygamy. We have interviewed a broad cross-section of the population in Kenya, Namibia, Swaziland, and Tanzania, and in every country the majority of the people spoke movingly about polygamy’s impact on women and children. They spoke of the inability of men to support more than one wife and children. They spoke of jealousy and hatred as the wives and children fought over sparse economic resources and virtually nonexistent emotional support from the one husband and father.
Children with polygamous fathers spoke longingly about their peers who had monogamous parents; their lives were different, they said, because both of their parents loved them and could afford to send them to school. Wives feared the spread of HIV/AIDS on a continent with the highest rate of infection. They have reason to fear because legal systems permitting polygamy also frequently permit married men to commit adultery, for the new woman may become the new wife. And men who have concurrent sexual relationships spread HIV/AIDS much faster than those in monogamous partnerships.
This is how life is for those where polygamy is permitted. It is the reason the Human Rights Committee and CEDAW have so resoundingly rejected polygamy as a violation of women’s human right to equality in marriage. For this same reason, it seems extremely unlikely that the U.S. Supreme Court will invalidate state criminal statutes prohibiting it, notwithstanding Sister Wives and Kody Brown’s latest move.
