From Big Love to the Big House: Justifying Anti-Polygamy Laws in an Age of Expanding Rights
Sexual Sharing in Malay Polygamy°ANALYSIS Sexuality's role in elite Malay polygamy is complex, because it entails negotiations. After he was released from jail for polygamy, he chose the Rock as a . society – the community council at the Rock, which meets monthly. Meet Enoch Foster of Rockland Range, a remote community of committed polygamists in Utah. He's got 16 nippers – his two wives take turns.
Texas and other states like Utah and Colorado with FLDS polygamists extends the definition of bigamy to include parties who cohabit with, purport to marry, or maintain the appearance of being married to a second spouse, while still married to a first. This provision was designed to preclude bigamists like Tom Green, who divorced each of his wives before marrying the next one, yet kept all of them in his harem.
Utah sent him to prison. Friedman, Inside the Castle: Law and the Family in 20th Century America 28—32 Every other American state has comparable criminal prohibitions on the books against polygamy or bigamy. These criminal prohibitions have been in place in America since its earliest colonial days 40See Witte, supra note 3, at — Polygamy was, in fact, a capital crime, and American states were still executing a few of the most brazen polygamists until the s, though most convicted polygamists were sent to prison.
In the nineteenth century, when the first Mormon cases reached the federal courts on religious liberty grounds alone, none of these additional constitutional rights claims was yet available to pro-polygamy litigants. Do Texas and other states have strong enough reasons to uphold their traditional criminal prohibitions of polygamy against such constitutional claims, especially if made by a party with deep religious convictions?
May a religious polygamist at least get a religious liberty exemption from compliance with these laws? The state would not prosecute them for polygamy. But the state would also not enforce their polygamous marriage contracts, provide them with family services or protections, or accord the spouses any of the thousands of rights and privileges available to state recognized families. No state burdens, no state benefits: On the role of religious communities as legal actors, see the burgeoning literature illustrated in Marriage and Divorce in a Multicultural Context: That raises a harder legal question—whether a state legislature could or should go further, by not only decriminalizing polygamy but legalizing it as a valid marriage option for its citizens.
After all, American states today, viewed together, already offer several models of state-sanctioned domestic life for their citizens: Each of these off-the-rack models of domestic life has built-in rights and duties that the parties have to each other and to their children and other dependents.
And the parties can further tailor these built-in rights and duties through private prenuptial contracts. With so much marital pluralism and private ordering already available, why not add a further option—that of polygamous marriage?
Why not give to polygamous families the same rights and duties, privileges and protections that are afforded to other domestic unions recognized by state law? Once we contemplate decriminalizing, or even legalizing polygamous marriage, that raises a still harder question—whether polygamy should be reserved to religious parties alone. If we leave religious liberty claims aside, are the other constitutional claims of privacy, autonomy, equality, and the like strong enough on their own to grant any consenting adult the right to enter a polygamous marriage, regardless of religious conviction?
Why should religious polygamists alone get special treatment? These questions are not unique to members of the Fundamentalist Latter day Saints Church. Page, Plural Marriage for Our Times: Considering Polyamory, 31 Cap. African American Women Who Practice Polygyny by Consent providing an extensive overview of this societal development.
Polygamy breeds poverty, despair for Kenyan women and children
Mapping the Impact of Polygamy in U. Immigration Law, 27 Berkeley J. Even if these anti-polygamy laws are not openly challenged on federal or state constitutional grounds, they may well slowly become dead letters on the books. The status of being in a polygamous marriage itself, while formally prohibited by criminal law in every state, now rarely moves law enforcement authorities to action.
Most state prosecutors today will move on polygamous individuals or groups only if they engage in other criminal activities, such as coerced marriages or sex involving children, or if they seek to engage in social welfare, social security, or tax fraud to support their multiple wives and children. Indeed, the state attorney general in Utah recently issued a formal declaration, condoned by the governor, that his office would not prosecute even brazen public polygamy per se.
This policy was already being discussed in This declaration came despite the fact that Utah has one of the few American state constitutions to prohibit polygamy, a vestige of its early experiments with Mormon polygamy. Utah today, like other American states, treats polygamy mostly as an aggravant to other crimes. It is a point of leverage for prosecutors to pursue attendant sexual or social welfare crimes, and it gives judges power to impose heavier punishments on the duly convicted.
Likewise, India, which draws in part on the common law, recognizes Muslim polygamous marriages. Menski, Modern Indian Family Law —47 Kenya, a former English colony that maintains portions of the common law, also recently passed a law authorizing a man to have an unlimited number of wives, while still prosecuting a woman for having two husbands.
For full disclosure, I was an expert witness in the case called by the Attorney-General of Canada.
The Polygamy Reference, 64 Emory L. This law builds on two laws: Offences Relating to the Law of Marriage, R. Drawing on empirical, historical, and comparative arguments and data, the court held that legalizing polygamy would visit inevitable and disproportionate harms on women, children, and society and that granting religious exemptions to practice polygamy privately would give untoward power to religious authorities who are not bound by due process or other rule of law constraints in the treatment of their members.
For a careful case analysis, see Thomas Buck, Jr. The constitutionality of polygamy will likely come before the Supreme Court of Canada in due course.
The outcome before this high court, famous for its avant-garde opinions, is by no means clear. Marriage and Nation Building in Western Canada to Protecting Choice, Promoting Inclusion 3—6available at http: That proposal was thoroughly debated but ultimately defeated. But the stated concern was not so much about the legalization of polygamy as about giving religious authorities and religious laws a role in the governance of the family lives of Canadian citizens.
From Multiculturalism to Multi-Conjugalism? Australia and New Zealand likewise face challenges from various Aboriginal groups as well as Asian, African, and Middle Eastern immigrants who have been pressing for the right to practice polygamy under the governance of their own religious customs and courts. But campaigners say most polygamous marriages in Kenya, and other African nations, are fuelling poverty - with husbands neglecting one family over another - leaving thousands of women and children impoverished and easy prey for exploitation.
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- Polygamy, USA
But women's rights groups say this a gross underestimate as most of these marriages are customary and not registered. Worse still, many women are unaware they are even sharing a husband as he may keep them in separate homes without informing them. In other cases, the man has to divide his little resources further between all the families, and there is less money, less food and less everything for everyone. But men have taken multiple wives for centuries, citing the need to have a large family to help with farm labour and to ensure offspring if children die or one wife is infertile.
A larger family was also traditionally seen as a source of pride, wealth and high social status and protective for women in cultures where they cannot own resources like land. Despite growing modernity and awareness of women's rights, polygamy remains legal in most African nations and is prevalent across society, from farmers to senior politicians, such as former South African President Jacob Zuma who has had six wives.
But for polygamy to work, wives must buy into the practice and the husband should have enough income to look after all of them and their children. He was such a good dad, and an amazing provider; he had so much to offer, and I wanted somebody else to be able to experience that. With more than a decade of plural marriage under their belts, the Fosters appear to have a smoothly running routine.
Catrina and Lillian share a postal delivery round — when one is nursing a new baby, the other works — and have a structured domestic schedule.
Enoch Foster with his wives Lillian and Catrina Credit: Where does he leave all his stuff, I ask? Do first wives, I ask, feel more secure? It forces you to confront those emotional challenges that you are, by nature, prone to struggle with the very most. And though life here can seem chaotic to those of us used to small, nuclear families, it also seems joyful and loving. Enoch — who manages all the housing construction at the Rock — arrives home for his lunch break, kisses both of his wives in turn, and joins us in the yard.
Immediately, multiple small children clamber on to him.
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In contrast to his wives, he looks older and more care-worn than his 38 years. Vance Jacobs There is also the delicate matter of multiple sexual relationships, which present a level of pressure. Indeed, Tianna and her sister Cherish, 16, are both already officially "courting", the prelude to marriage in the fundamentalist Mormon community. It is an old-fashioned system, with boys asking a father for his permission to get to know his daughter.