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Commentary: No ‘Big Love’ for polygamy laws

My favorite TV show, “Big Love,” is back on the air for a new season.

If you’re not familiar with the show, it’s a family drama about a man in Utah, his three wives, and their assorted children. A frequently-used device to drive the plot is their ever-present fear of criminal prosecution for polygamy.

My hope is that the man does get prosecuted for polygamy, and the show’s producers hire me (at a lucrative rate, of course) to craft a constitutional defense for him.

In the landmark case of Reynolds v. U.S., 98 U.S. 145 (1878), the U.S. Supreme Court held that the criminalization of polygamy did not violate the Free Exercise rights of those who believe that God wants them to have lots of wives.

I’m not interested in challenging that precedent, though. I want to make the argument that it violates the Equal Protection Clause because fornication is no longer illegal.

In 1878, every state in the union prohibited fornication, among other sexual acts. But that is no longer the case. And with the repeal of every other law governing sex between consenting adults, the bans on polygamy have lost whatever rational basis once existed to support them.

Suppose that I have a really good weekend and fornicate with three different women. The law can’t touch me; Wisconsin’s criminal prohibition on fornication was repealed in 1983, and it would be held to violate the right to privacy even if it was still on the books.

Now suppose my luck turns, and all three women get pregnant. The law still can’t touch me; fornication causing fertilization is a fundamental liberty.

All the law can do is drag me to court, order me to pay support, and then, if I don’t pay, and the failure is intentional, they can prosecute me for failure to pay child support. But what I did to get in this position in the first place is all constitutionally protected.

Now suppose, I do what the nice man on the TV show does — I marry all these women, buy three adjacent houses with one wife installed in each, and support them all, financially and emotionally.

If I do that, I’m guilty of violating Wisconsin’s bigamy statute, sec. 944.05, a Class I felony.

I cannot understand how a legal distinction this absurd could possibly survive an equal protection challenge, even under the most pro-government rational basis review.

Some of you may remember the Wisconsin Supreme Court case, State v. Oakley, 629 N.W.2d 200 (2001). Oakley fathered nine children with four different women, and supported none of them. Convicted of failure to pay support, the judge ordered that, as a condition of probation, he father no more children unless he shows ability to support them, and that he is supporting the ones he already has.

A four-three majority of the court held the condition of probation was constitutional. A concurrence by Justice Bablitch remarked, “Here is a man who has shown himself time and again to be totally and completely irresponsible. He lives only for himself and the moment with no regard to the consequences of his actions and taking no responsibility for them.” Oakley, at par. 33.

Justice Sykes agreed with this assessment of Oakley personally, yet wrote in dissent, “this condition of probation is an overly broad encumbrance on Oakley’s right to procreate, and therefore cannot stand.”

Unquestioned in any of the opinions the case produced is that fathering nine children with four single women is itself a fundamental right. But, fathering nine children with four wives is a felony.

No rational basis can possibly exist for a rule which says, whatever Oakley’s moral shortcomings, in the eyes of the law, Oakley is less culpable than the nice man on the TV.

8 comments

  1. A show about three women subservient to a man does seem to fit the male egomaniac ethos predominant in this society. Women in America are truly second-class citizens.

  2. Excellent article. Agree with all points. Problem is: how do we get this changed? Look at some of our political leaders and their affairs, look at Tiger Woods? all this can happen without being thrown in jail but marrying the woman and supporting her financially can get you 5 years in jail. It makes no sense. Again where do we go from here?
    PS. Women in plural marriages are not sex toys for men, nor second class citizens. Please do your research before making those comments.

  3. Excellent, entertaining article.

    While I understand Sarah’s point about the “male egomaniac ethos” demonstrated by the show, “Big Love,” I think she’s missing the real point.

    Should polygamy become legal, I assume under equal protection statutes women would be permitted to have more than one husband. While it might be legal, no woman in her right mind would want more than one husband. On the other hand, I can see the benefits of sharing the “joys” that a husband brings with other, commiserating women. ;-)

  4. Andrea Moore-Emmett

    Once again another (usually male) armchair pundit attempts a simplistic analysis of polygamy after “learning” everything he needs to know from watching ‘Big Love’ as though it were a documentary.
    Zeimer wants the chance to write a constitutional defense for “the nice man on the TV” with three wives but is not interested in challenging precedent set by Reynolds. That’s because Reynolds is the real world of case law and such a futile challenge would require using a different body organ….a brain.

    Andrea Moore-Emmett
    Author, God’s Brothel

  5. ms. moore-emmett:
    i don’t believe it would be a futile challenge at all. the law has changed a great deal since reynolds. when reynolds was decided, an equal protection challenge would have been futile, even frivolous. but in light of griswold, etc., its a viable challenge.

  6. What bothers me most about polygamy, in this supposedly ‘enlightened’ age, is the very real terrors of inbreeding. Why do you think we have blood tests before marrying? Just to prevent such avoidable catastrophies. Yet we allow these morons to freely breed, from a stable of women who are born and bred to believe they are serving God’s plan by living such an existence. I’ll wager that when the US finally sees the light and embraces a national medicare system, then the laws will be adjusted to prevent such an atrocity, because everyone will be paying for them!

  7. Interesting arguement. Here in England, the law is much more confused (perhaps deliberately so). The emphasis tends to be on whether the children are being supported and cared for.Thus if I were to have children by three women, the law would require me to support all of my children, regardless of whether or not I was (or had been) legally married to the mothers. This did not used to be the case. For a thousand years, you only had the rights and responsibilities of a father, if you were legally married to the mother, and not otherwise–biological fatherhood was not recognised in law. This was changed by the John Major government (circa 1990).

    Welfare payments are another case in point. If I were to share my residence with two women, and needed to apply for welfare (because unemployed, perhaps), then the income of my two women would be taken into account as well as my own, regardless of our marital status. Thus there is a tacit acknowledgemnt of polygamy where it exists.

    Lawyer Samuel Chapman’s book Polygamy Bigamy and Human Rights Law is a fascinating read, by the way: http://polygamypage.files.wordpress.com/2008/12/pbhrtext.pdf

  8. While the show Big Love is entertaining it’s just that, entertainment. I too have noticed the hypocrisy in allowing a man to sleep with multiple women. But at the same time forbidding a man to enter into a loving marriage relationship with them.

    Polygyny is not about a man ruling his harem of sexual slaves. Apparently most people in this country have not woken up to the fact that a man is not the boss in a marriage. A man and a woman should work together to make a marriage work. If a man has marriages to other women it makes it no different. He should be working with each of his wives to make that particular marriage work.

    A plural marriage would require so much more love, understanding, and patience than a monogamist marriage. It would require people to be so much more dedicated. Because of this Plural Marriage truly is a higher form of marriage.

    Being married just over a year ago, and having a daughter under a year old, has really opened up my mind to the benefits of plural marriage. So many problems could be fixed by marrying another woman. Yes, I understand that doing so would bring its own set of challanges.

    Plural Marriage is something that needs to be legalized. It’s not something for everyone but those who can do it responsibly should be allowed to.

    Norra J. Mennie said, “then the laws will be adjusted to prevent such an atrocity, because everyone will be paying for them!”

    You obviously think that there will bo nobody in a polygynous relationship who can support themselves. Again we have another person who look only at what the media shows of the FLDS.

    Sarah said, “Women in America are truly second-class citizens.”

    I’d like to personally extend and invitation to you to join us here in 21st century.

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