Saturday, April 30, 2011

It's Not Complicated

Elizabeth Abbott asks, “In a liberal society, is polygamy still intolerable?” Much of her piece dwells on what has, or has been alleged to have, happened in Bountiful.

Most convincing, perhaps, was the testimony of former FLDS members. Carolyn Jessop, who fled a community in Utah with her eight children in the middle of the night, summed it up well: “Polygamy is not pretty to look at. It is nice that it is tucked away in a dark corner where nobody has to see its realities, because it’s creepy.”

However, if I recall correctly, she actually agreed that legalizing the polygamous freedom to marry would be beneficial.

Abbott gets into the complications of divorce as a problem with legalizing polygamy.

Finally, what, if any, of their contribution would she have a right to? The women didn’t marry each other; they married their husband.

Actually, that would be up to each set of spouses to decide themselves the exact spousal relationship. If they want a triangle instead of a vee, that is up to them.

And that’s why it would not only be infinitely complicated to apply divorce law to polygamy; it would never meet Western liberal standards of fairness. A husband could always dilute his wife’s stake in the family assets by unilaterally deciding to marry another wife.

All of these concerns have been dealt with, and should not be used to deny a fundamental right such as the freedom to marry.

She even includes an answer...

American legal scholar Adrienne Davis, who believes that conventional family law rooted in monogamous marriage may not be up to attempts at cobbling polygamous marriage onto it, points out an alternative: commercial partnership law. Typically used when two or more parties go into business, according to Davis it would certainly address “polygamy’s central conundrum: ensuring fairness and establishing baseline behaviour in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes.” Of course, there would be a huge administrative cost to both adapting the model to marriage, and to ensuring that over the course of a union all partners consented to any new additions to it and renegotiated their respective rights as the landscape changed.

Legalizing polygamy will not clog our systems. Every legal marriage already involves laws and marriage licenses and may involve prenuptial agreements and postnuptial agreements, and every divorce involves paperwork and courts or arbitration. It’s not like an additional courtroom will be needed because the divorce involves a polygamous marriage. One judge or one arbitrator can decide, just as they do with monogamous marriages.

If anything, legalizing polygamy may actually reduce the divorce rate, as there are divorces that happen now because the ban on polygamy forces some married couples who have found new primary lovers to divorce each other in order to provide legal standing to their new primaries, when in some cases, they would have rather remained legally married to each other as well. Also, legalizing polygamy can reduce the amount of probate paperwork as there is more likely to be a surviving legal spouse who will retain the estate upon a death, as opposed to the estate having to be dissolved.

Referencing same-sex marriage, she writes…

The former brought people into an existing system of rights; the latter poses a significant threat to that system. And that’s probably our cue, as a liberal society, to hold our noses and draw the line.

What? How does polygamy pose any threat to the system? How is it not bringing people into the existing system? The case wasn’t made in the piece. See Discredited Argument #8. Two men should be able to marry. One man should also be able to marry two men. Three men should be able to marry each other. They should be able to do that even if they are closely related. None of those scenarios hurts anyone else.
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