Around the Web

Here are important law-and-religion news stories from around the web:

Ulrich, “A House Full of Females”

In January, Penguin Random House released A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870 by Laurel Thatcher Ulrich (Harvard University). The publisher’s description follows:

Mormon Book CoverFrom the author of A Midwife’s Tale, winner of the Pulitzer Prize and the Bancroft Prize for History, and The Age of Homespun–a revelatory, nuanced, and deeply intimate look at the world of early Mormon women whose seemingly ordinary lives belied an astonishingly revolutionary spirit, drive, and determination.

A stunning and sure-to-be controversial book that pieces together, through more than two dozen nineteenth-century diaries, letters, albums, minute-books, and quilts left by first-generation Latter-day Saints, or Mormons, the never-before-told story of the earliest days of the women of Mormon “plural marriage,” whose right to vote in the state of Utah was given to them by a Mormon-dominated legislature as an outgrowth of polygamy in 1870, fifty years ahead of the vote nationally ratified by Congress, and who became political actors in spite of, or because of, their marital arrangements. Laurel Thatcher Ulrich, writing of this small group of Mormon women who’ve previously been seen as mere names and dates, has brilliantly reconstructed these textured, complex lives to give us a fulsome portrait of who these women were and of their “sex radicalism”–the idea that a woman should choose when and with whom to bear children.

In the mail: Witte’s “Western Case for Monogamy Over Polygamy”

I was pleased to receive Professor John Witte’s new volume, released earlier this year, The Western Case for Monogamy Over PolygamyWitte, Monogamy and Polygamy, in which, with at least half an eye cocked at the coming legal contests over polygamous marriage, John explores the following questions:

What is the Western tradition’s case for monogamy over polygamy, and is that case still convincing in a post-modern and globalized world? Are there sufficiently compelling reasons to relax Western laws against polygamy, and is this a desirable policy given the global trends away from polygamy and given the social, economic, and psychological conditions that often attend its practice? Or, are there sufficiently compelling reasons, reconstructed in part from the tradition, to maintain and even strengthen these anti-polygamy measures, in part as an effort to hasten the global demise of this practice?

I’ve only had a chance to glance at the book but from that quick scan, it appears that the primary justifications advanced in the book as a historical matter for monogamy over polygamy relate to “joint parental investment in children” and ensuring “that men and women are treated with equal dignity and respect within the domestic sphere,” the latter logic of which, the book claims, “applies to dyadic same-sex couples, who have gained increasing rights in the West in recent years, including the right to marry and to parent in some places.”

The book is immensely and richly detailed and comprehensive, with chapters including “From Polygamy to Monogamy in Judaism,” “The Case for Monogamy Over Polygamy in the Church Fathers,” “Polygamy in the Laws of State and Church in the First Millennium,” “Polygamous Experiments in Early Protestantism,” and “The Liberal Enlightenment Case Against Polygamy.”

Goldfeder, “Legalizing Plural Marriage”

In November, Brandeis University Press will release “Legalizing Plural Marriage: The Next Frontier in Family Law” by Mark Goldfeder (Emory University School of Law). The publisher’s description follows:

Polygamous marriages are currently recognized in nearly fifty countries worldwide. Although polygamy is technically illegal in the United States, it is practiced by members of some religious communities and a growing number of other “poly” groups. In the radically changing and increasingly multicultural world in which we live, the time has come to define polygamous marriage and address its legal feasibilities.

Although Mark Goldfeder does not argue the right or wrong of plural marriage, he maintains that polygamy is the next step—after same-sex marriage—in the development of U.S. family law. Providing a road map to show how such legalization could be handled, he explores the legislative and administrative arguments which demonstrate that plural marriage is not as farfetched—or as far off—as we might think. Goldfeder argues not only that polygamy is in keeping with the legislative values and freedoms of the United States, but also that it would not be difficult to manage or administrate within our current legal system. His legal analysis is enriched throughout with examples of plural marriage in diverse cultural and historical contexts.

Tackling the issue of polygamy in the United States from a legal perspective, this book will engage anyone interested in constitutional law, family law, or criminal law, along with sociologists and those who study gender and culture in modern times.

Witte, “The Western Case for Monogamy Over Polygamy”

In May, Cambridge University Press will release “The Western Case for Monogamy Over Polygamy” by John Witte, Jr. (Emory University). The publisher’s description follows:

For more than 2,500 years, the Western tradition has embraced monogamous marriage as an essential institution for the flourishing of men and women, parents and children, society and the state. At the same time, polygamy has been considered a serious crime that harms wives and children, correlates with sundry other crimes and abuses, and threatens good citizenship and political stability. The West has thus long punished all manner of plural marriages and denounced the polygamous teachings of selected Jews, Muslims, Anabaptists, Mormons, and others. John Witte, Jr. carefully documents the Western case for monogamy over polygamy from antiquity until today. He analyzes the historical claims that polygamy is biblical, natural, and useful alongside modern claims that anti-polygamy laws violate personal and religious freedom. While giving the arguments pro and con a full hearing, Witte concludes that the Western historical case against polygamy remains compelling and urges Western nations to hold the line on monogamy.

Majeed, “Polygyny: What It Means When African American Muslim Women Share Their Husbands”

In June, the University Press of Florida will release “Polygyny: What It Means When African American Muslim Women Share Their Husbands” by Debra Majeed (Beloit College). The publisher’s description follows:

Debra Majeed sheds light on families whose form and function conflict with U.S. civil law. Polygyny–multiple-wife marriage–has steadily emerged as an alternative to the low numbers of marriageable African American men and the high number of female-led households in black America.

This book features the voices of women who welcome polygyny, oppose it, acquiesce to it, or even negotiate power in its practices. Majeed examines the choices available to African American Muslim women who are considering polygyny or who are living it. She calls attention to the ways in which interpretations of Islam’s primary sources are authorized or legitimated to regulate the rights of Muslim women. Highlighting the legal, emotional, and communal implications of polygyny, Majeed encourages Muslim communities to develop formal measures that ensure the welfare of women and children who are otherwise not recognized by the state.

 

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United Statesthe famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Continue reading

Singh on Polygamy Law in India

Suraj Singh (University of Study and Research in Law) has posted Polygamy in India – With Special Reference to the Bulkiest Constitution in the World. The abstract follows.

The research work analyzes the issue of Polygamy with reference to the bulkiest constitution in the world. Most of the debaters argue that the Indian polygamy law only prohibits polygamy among one religious group. Thus, current Indian law poses a constitutional paradox because permitting polygamy among Muslim men but prohibiting it among Hindus under the freedom of religion provisions violates the equal protection provisions of the Indian Constitution. The author takes a departure from this standpoint and argues that there are several reasons why Polygamy was not made punishable under the muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc. which are further elucidated in the report. Relevant constitutional provisions and judicial pronouncements are being articulated and discussed with reference to the issue of Polygamy.Hence, the legislation in India, prohibiting polygamy among Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesn’t violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.

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