Polygamy’s Emergence from a ‘Shadow World’: An Unintended Consequence of Thinning State Oversight of Marriage Post-Obergefell

John Witte’s perfectly timed book, The Western Case for Monogamy over Polygamy, questions whether Obergefell v. Hodges foreshadows a fight over polygamy. Although glorified by Sister Wives and Big Love as “mainstream, even edgy,” polygamy today is largely concentrated in “an African ‘polygyny belt’” and in Middle Eastern countries, where the now - “controversial” practice is “shrinking, . . . particularly among younger, educated and urbanized Muslims.” If Westerners intersect with polygamy, it will almost certainly be through fundamentalist Mormon sects or “dispersed Muslim communities throughout the world.” Polygamy operates in a “shadow world” in the U.S. because it is currently illegal in every state — but that may not continue. Relying on Lawrence, in 2013, federal district court Judge Clark Waddoups struck down Utah’s ban on polygamous cohabitation, not polygamous marriage, as violating free exercise and due process guarantees. Far more salient is the question that has racked Canada and the Continental countries: “[w]hat degree of accommodation” should our legal systems give to minority religious communities, who have “strongly entrenched legal and moral codes?” The belief that accommodation allows polygamous families to become a “law unto themselves” stokes a continuing “firestorm.” The real problem is that civil authorities lack the power to intervene in these marriages because Muslim women appearing before Shari’a courts in Great Britain never entered into civilly recognized marriages. These marriages are a legal nothing, so women have no recourse but to invoke religious law. True, the deep unfairness of these results may create pressure to open marriage to more spouses, accommodating them within civil structures. But it is far more likely to produce further efforts to suppress polygamy — for instance, by charging “Muslim mediators . . . as accomplices to the crime of polygamy.” Ironically, in the U.S. there is a growing movement post-Obergefell to “get the government out of the marriage business,” which may pave the way to legal status for polygamy. Proposed laws in Alabama and Indiana would eliminate marriage licenses in favor of “signed contract[s] . . . to legally wed.” Couples’ ability to contract would be bounded by public policy constraints now governing prenuptial agreements (barring, for instance, agreements on custody), but couples would otherwise be free to set their relationship’s terms — removing the government’s ability to “come into my church.” One need look no farther than the unconscionable consequences facing women in Shari’a courts to realize that many women will lack the bargaining power to protect themselves and their children through contract, especially in fundamentalist communities. The thinner the state’s relationship to marriage, however, the greater the likelihood that polygamous families cloak their relationships in the respectability of contract — and the more difficult it will become for states to simply say to polygamists, as Witte closes the book, “No thank you, we don’t do that here.”