In modern America, sex is pretty much a government-free zone. It’s been a long time since we treated fornication and adultery as crimes. The Supreme Court struck down state laws banning homosexual acts. Nudity is common on mainstream TV platforms, and pornography is available in every home.
Most Americans, if not all, have made peace with the idea that what consenting adults do to satisfy their carnal appetites is nobody’s business but their own. But there is one major exception: polygamy. When it comes to marriage, our laws stipulate that two is company and three’s a crowd.
The ban survives mainly because it affects so few of us. Most people would no more want multiple spouses than they would want multiple heads. But for the small subset of the population that feels differently, the law creates a danger and a stigma — and for no defensible reason.
Most of this group is located in Utah, where the Church of Jesus Christ of Latter-day Saints, commonly known as the Mormon church, once championed and practiced “plural marriage.” Their 19th-century patriarch, Brigham Young, had 55 wives. But to stop federal religious persecution and win Utah’s 1896 admission to the United States, the church and the state both banned the practice.
Banning something, however, is very different from stopping it. Although members of the church gave it up, rogue elements didn’t. Today, an estimated 30,000 Utahans live in polygamous communities.
They persist under the cloud of a state law that treats it as a felony, punishable by up to five years in prison. Back in 2013, a federal court ruled the Utah ban unconstitutional — though an appeals court threw out the case because the people who challenged the law had not been charged.
But on Tuesday, the Utah Senate voted unanimously to decriminalize plural marriage, treating it as the moral equivalent of a traffic ticket and replacing that possible prison sentence with a maximum fine of $750. Not that the existing law has much impact: Prosecutors make a practice of ignoring violators unless they are committing other crimes.
Republican Sen. Deidre Henderson, who sponsored the decriminalization bill, merely wants to remove the threat of a law that is unenforced.
Even under the current ban, thousands of people go on practicing polygamy. And it’s not clear why this should bother anyone else.
Americans have mostly come to accept nonmarital cohabitation, divorce and same-sex marriage. No district attorney goes after men and women who enter into open marriages that allow sex with others. Even in conservative circles, policing intimate relations is not seen as an important or even valid government responsibility.
Why should it be one in the case of polygamous households? If a wealthy man wants to support multiple women in his mansion and partake of their favors, he’s free to do so. If he wants to shack up with a different woman — or man — every month, it’s his prerogative.
Yet the heavy hand of government may descend on a guy who elects to live in permanent relations with mentally competent adult women who agree to that arrangement. If he doesn’t mind and they don’t mind, and no tangible harm is done to others, the rest of us are obligated to respect their choices, just as they respect ours.
It’s true that in some of these households, women and children are sexually abused and coerced. But those crimes also happen in nonpolygamous homes. We don’t outlaw heterosexual marriage because some men beat their wives or kids. And there are other laws that can be used for these other crimes — as they already are in Utah.
The main effect of the status quo is to discourage the victims from trusting police or reporting crimes against them. “My biggest concern was potential victims of crime,” Henderson said. “Branding all polygamists as felons has facilitated abuse, not eliminated polygamy.”
We might adopt the wisdom of Abraham Lincoln. His Republican Party was officially against polygamy. But in a meeting with a Mormon emissary, Lincoln recalled that as a farm boy, he sometimes encountered a fallen log that “was too hard to split, too wet to burn, and too heavy to move, so we plowed around it. That’s what I intend to do with the Mormons. You go back and tell Brigham Young that if he will let me alone, I will let him alone.”