Mail Bag: Do You Think Polygamy Will Be Legalized in the United States?

Over the past few years, I’ve received a lot of questions about the role of polygamy in American society and, in some cases, whether I think it will ever return and whether I think it should be legalized following its restriction in the 19th century.  Since I’m working on several other mail bag responses I’m about to publish (most of which have to do with economics or portfolio management; e.g., one on currency fluctuations and investing), this was a welcome distraction.  I finally decided to talk about it publicly.  You may not agree but, like all things in my life, I’m interested in the facts and evidence, which lead me to end up very strongly on one end of the spectrum.

Re: About the 6th Circuit [upholding marriage bans on gays] with a new idea about marriage equality

This masterpiece just caught my attention,  I can’t find anything wrong with the logic of Judge Sutton’s statement, “… there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.”

That logic has changed my mind!
Polyamorous marriage should be legal.

If the laws of the majority can be thwarted to the protect minority group (same sex couples). So can polyamorous couples demand the majority who established laws hampering them also be removed!

Am interested in your take on this fascinating logic, if you feel like sharing.

[Josh]

P.S. I love your blog!

From one Joshua to another, you asked for my opinion and I’m going to give it to you without holding anything back so forgive me if this is long.  I’ve been thinking about this for the past four or five years so, at this point, I’ve settled it in my mind and find the notion entirely unconvincing for a variety of reasons, which I will detail in what, unfortunately, has turned out to be a nearly five thousand word response.

In the United States, as well as in most nations throughout history, there are two primary legal mechanisms through which you can form a family when there is no blood shared between members.  The first is marriage, which allows a couple to create a new household unit entitled to more than a thousands rights and protections, including certain constitutional rights such as not having to testify against your spouse at a trial.  The second is adoption, which allows the non-biological parent or parents of a person (most often, but not always, a minor child), to confer all of the rights of biological kinship, including the right to be supported with food, shelter, clothing, and education until adulthood, intestate inheritance in the event of death without a will, and making emergency medical decisions in the absence of certain paperwork.

Under our constitutional system of government, when the majority of people wish to deny a person or group the right to enter into marriage or adoption through the collective power of the government, the representatives of the government have to demonstrate a justifiable reason for their actions based upon facts, evidence, and rationality.  Depending upon the circumstances, any justification that could seem sensible might do (rational basis) or it may take an exceptionally good reason that can survive intense examination, especially if the group targeted has a history of being oppressed (strict scrutiny).

Based on Human Behavior and Evolutionary Pressures, We’re Really Discussing Polygyny Not Polygamy in the Broader Sense

You mentioned polyamorous marriage but that’s not really what we’re talking about here.  You can theoretically have an open marriage, have multiple mistresses or lovers, live with other couples, or whatever you want if you are a person who experiences romantic love with multiple people.  The government cannot stop you under the constitutional right of freedom of association.  What we are talking about is legal family formation under civil law.  Polygamy – and, let’s be upfront in that we’re not really examining polygamy, but rather polygyny (one man marrying multiple women) since that is what it almost always devolves into as a result of various interacting biological, evolutionary, sociological, and economic mental models working together – none of the recent marriage equality wins hold much promise because the basis for striking down gender restrictions on marriage contracts have almost no applicability to the litany of reasons society may want to restrict matrimony to two people.  As we’ll get to later, I, many others, and even the dissenting judge, suspect Judge Jeffrey Sutton knew this when he wrote the majority opinion upholding the marriage bans on gay couples.

There is a long history of well-researched, well-documented social science showing that polygamy inevitably leads to systematic, widespread, often difficult-to-escape oppression of both women and men, particularly in closed religious societies with charismatic or wealthy male figures in the center.  This not only has a tendency to lead to subjugation of female, it throws off marriage rates for a large portion of single males, which, in turn, leads to a litany of social ills.  It’s a function of basic economics, supply and demand, as Robert Frank, an economist at the Johnson School of Management at Cornell University and co-author of “Principle of Economics” with former Federal Reserve Chairman Ben Bernanke, pointed out in The New York Times.

For example, in what is the largest study on the topic to date, The University of British Columbia completed a research paper a couple of years ago that found the reason societies as a whole had evolved away from polygamy to monogamy was that polygamy came with a host of negatives for society that weren’t present in a two-person marriage system.  The second and third order effects of polygamy, which tap into evolutionary forces such as hypergamy, end up creating a country wherein a large percentage of males have no mathematical possibility at securing domestic happiness as the “best” males take a disproportionate percentage of females.  This leaves a huge block of civilization with no girlfriend, no wife, no children.  Without those things, men tend to get violent and/or cease caring about much beyond hedonism.  The UBC study found societies that had yet to evolve away from the polygamy model suffered significantly higher levels of kidnapping, murder, rape, assault, robbery, and fraud.

Or, as the summary for the University put it:

“The scarcity of marriageable women in polygamous cultures increases competition among men for the remaining unmarried women,” says Henrich, adding that polygamy was outlawed in 1963 in Nepal, 1955 in India (partially), 1953 in China and 1880 in Japan. The greater competition increases the likelihood men in polygamous communities will resort to criminal behavior to gain resources and women, he says.

According to Henrich, monogamy’s main cultural evolutionary advantage over polygyny is the more egalitarian distribution of women, which reduces male competition and social problems. By shifting male efforts from seeking wives to paternal investment, institutionalized monogamy increases long-term planning, economic productivity, savings and child investment, the study finds. Monogamy’s institutionalization has been assisted by its incorporation by religions, such as Christianity.

Monogamous marriage also results in significant improvements in child welfare, including lower rates of child neglect, abuse, accidental death, homicide and intra-household conflict, the study finds. These benefits result from greater levels of parental investment, smaller households and increased direct “blood relatedness” in monogamous family households, says Henrich, who served as an expert witness for British Columbia’s Supreme Court case involving the polygamous community of Bountiful, B.C.

Monogamous marriage has largely preceded democracy and voting rights for women in the nations where it has been institutionalized, says Henrich, the Canadian Research Chair in Culture, Cognition and Evolution in UBC’s Depts. of Psychology and Economics. By decreasing competition for younger and younger brides, monogamous marriage increases the age of first marriage for females, decreases the spousal age gap and elevates female influence in household decisions which decreases total fertility and increases gender equality.

To state it bluntly, over time, polygamy tends to lead to a lower and lower age of consent for women, who have less and less agency to determine their own fate in the face of family and societal pressure to “marry up”.  Meanwhile, you already have a situation where the males at the bottom of society have faced significant inflation-adjusted wage declines over the past few decades due to productivity gains and globalization, the cost of living has increased substantially for that same demographic who now face medical and student loan debt their parents didn’t, and now, you might introduce a situation in which they are unable to even aspire to marriage and children by drastically altering the ratio of available females?

That isn’t going to end well.

At best you have an arms race, to quote the earlier piece by Robert Frank, at worst you end up with pitchforks and guillotines because that’s where we’ll be if you foist that much more discontentment on tens of millions of prime-aged men.  I’d very much like to keep my head, thank you, and I imagine you would, too.  The idea that all of these guys are just going to sit down and take greater despondency and misery indefinitely while the top 20% of society reaps not only all of the money but all of the sex and progeny, too, is delusional.  It would take a few decades to play out but it seems woefully naïve to think “this time is different”. I’ve heard that too much in the stock market to know it’s bunk. Human nature is not apt to change over short periods of times and incentives – the very reason capitalism itself tends to deliver higher standards of living for more people as it harnesses those powerful incentives for the greater common good – apply in sexual selection just as much as they do in how you choose your laundry detergent or toothpaste.

This is a truth so universally acknowledged based upon past experience that the United Nations considers polygamy a violation of fundamental human rights and calls for its abolition in the few remaining countries where it is permitted.  This is enshrined in U.N. International Covenant on Civil and Political Rights multilateral treaty.  It would likewise, also, possibly be a violation of the 14th amendment as it would permit unequal treatment of spouses in practice as explained in this essay posted on the American Bar Association’s website by Susan Deller Ross, professor of Law and director of the International Women’s Human Rights Clinic at Georgetown Law and author of Women’s Human Rights: The International and Comparative Law Casebook (University of Pennsylvania Press 2008).

Even Ignoring the Sociological Evidence, the Rational Basis for Prohibiting Polygamous Marriages Could Be Met In Dozens of Ways Under Our Constitutional Framework

In addition to the very real drawbacks, particularly second and third-order costs, sociology has already identified with legal polygamous marriage, all of which would easily pass the constitutional muster even using the lowest-level of scrutiny (rational basis), there are many other compelling state interests that could withstand scrutiny if the people wanted to ban multiple-spouse marriages.  Here are just a few:

• The entire tax code would be broken overnight at a Federal level and in most states, leading to substantial harm against the poor and middle class.  A high income surgeon would be able to shield practically all of his income from taxes using spousal IRAs under current regulations; estate and gift tax limits would be completely destroyed as the unlimited transfers to spouses would be a loophole that permitted some families to pass on multi-billion dollar fortunes; itemized deductible expenses could be shifted, with no real basis to contest the shift, among various members of the marriage to drastically lower effective tax rates.  Religious cult leaders could intermarry their small congregations, abolishing all gift tax considerations in the community.  Right now, such outcomes are nearly impossible under the two-person marriage rule and limits.
• Imagine John and Jane are married.  John then marries Alice.  Jane then marries Andrew.  In this scenario, Alice and Andrew have no relationship, though their spouses are married to each other.  If Andrew wants a divorce from Jane, how will the community property be split?  Given that Alice has an interest in John’s assets, which include his share of the marital property he holds with Jane, could Alice then sue Jane due to the financial harm she is suffering for the lost income, securities, and property upon the dissolution of a marriage in which she has no legal role?  Society already struggles with conflicts between divorced spouses, now imagine adding multiple spouses and ex-spouses.  It wouldn’t be long before what should be routine hearings look like the abomination that was Jarndyce and Jarndyce from Bleak House.
• How would we protect spouses in the event their husband or wife wanted to enter into another marriage against their wishes?  For example, imagine a successful business owner with $30 million in net worth were married to his high school sweetheart and they are celebrating their 30th anniversary.  He decides he wants to marry his 25 year old secretary, too.  His wife objects.  Right now, that $30 million is their joint property.  To put it in corporate terms, the husband is effectively diluting her stake in the marriage business from 50% to 33.33% without her consent, representing a $5 million theft from her and her children, now going to the additional wife and her future children.  That is a material harm.  Even if existing assets were maintained under some sort of formula, future cash flows diverted to the new spouse are a material harm as they represent funds she could have spent, saved, invested, given to her family or charity, or used to reduce liabilities.
• Tight-knit criminal organizations would be able to assail themselves of the constitutional protections against spousal incrimination, making the investigations and prosecution of such cases considerably more difficult.
• Intestate deaths involving those who pass away without a will are written for a certain percentage of assets to go to the surviving spouse.  It would be chaos if there were multiple spouses.  Again, the spouses-of-spouses, once removed, from the deceased, could make compelling arguments that they were being harmed by being cut out of the inheritance since their indirect access to the money, which they had been using to support their lifestyle, is now ended.  In what uniform, equitable way could something like this be solved?
• Inter-family custody battles could become nightmarish.  Imagine a man marries a woman and has children.  He then marries another woman concurrently and they have children.  The first wife and the husband die in a car accident.  Without a radical overhauling of the laws, the children of the first marriage are left in the care of the second wife, who would have parental authority over them, including prohibiting the grandparents from visitation in many situations.  Even if the second wife hates the kids, and is cruel to them, she may not want to give them up as a result of the survivor benefits Social Security pays out on dependent minors in certain situations or, alternatively, the added government benefits if they are below the poverty line.
• Considerable increases in Social Security, Medicare, municipal pension, and private pension benefits could result, even in the case of ex-spouses, as the current mortality assumptions for future payouts were blown out of the water (add more spouses, one of them is bound to live longer).  For most of history, this objection was not a problem in the case of interracial marriage or same-gendered marriage because social pressure caused most individuals to marry conventionally, despite their personal unhappiness; e.g., had Hollywood legend Rock Hudson been an engineer at General Electric and died on the job, the pension plan would have been paying his wife (the woman he married for social cover to hide the fact he was gay) benefits up through her death in 2006.  Had he been allowed to marry the man with whom he wanted to spend his life, and build a family, the pension plan would have largely been in the same net position, suffering no financial harm.  The name on the benefit check would have been different is all.

There are dozens of ways to get there but the objections are so manifold, and the demonstrations of harm so tangible, there is no intellectually honest path to reach the threshold of striking down prohibitions on the legal unions.  None of these problems are present in the case of rescinding racial or gender bans on marriage contracts.

In the Legal Tradition of the United States, Practically None of the Arguments Used to Permit Interracial Marriage and / or Removing Gender Restrictions on Marriage Can Be Applied to Multiple-Spouse Marriages

In contrast, the arguments against interracial marriage couldn’t withstand any level of scrutiny.  There was no definable benefit of maintaining “racial purity” that offset the marked harm suffered by Richard and Mildred in the now famous Loving v. Virginia.  It was naked, raw, racism and bigotry searching for a justification of the belief that black Americans were somehow sub-human and not worthy of equality.

Likewise, in the marriage equality cases for gay couples, the 50+ courts that have struck down the bans in recent years (as contrasted with the 2 or 3 that have upheld them) have systematically examined the claims that restricting marriage based upon a person’s biological sex and found them absurd to the point of derision.  There is not one reasonable objection to prohibiting a person to enter into a marriage contract based solely on whether he or she is male or female that amounts to anything more than prejudice.  Society in no way benefits from forcing a gay person to marry a spouse of the opposite gender or remain single for life.  It achieves nothing, while benefiting civilization in no way, shape, or form, existing solely to express disapproval or animus.  How would America be stronger if Neil Patrick Harris were miserable and married to a woman?  He and his husband have biological children.  How would they be better off if the parents were unhappy?

Case in point: The position that marriage is about procreation fails because even in the days of no-fault divorce, discovering your spouse was barren was not a good enough reason to dissolve the union, undermining the assertion.  We allow the non-procreating elderly to get married, undermining the assertion.  We allow couples to use birth control within marriage as it is considered a fundamental marital privacy right thanks to Griswold v. Connecticut, undermining the assertion.  We require no oath that the couple intends to procreate at the time of marriage solemnization, undermining the assertion.  We allow women who have had hysterectomies to get married, undermining the assertion.  We no longer permit legal discrimination against children born out of wedlock, undermining the assertion.  We have the ability to test for paternity thanks to the rise of genetic science, undermining the assertion.

None of these arguments work with polygamy.  The successes of the marriage equality movements over time – first interracial marriage, now removing gender restrictions – don’t translate to the state objections to multiple-spouse marriages, the latter of which are legion.  None of the wins, or finding of fact, are really helpful in making the constitutional case.  The only reason people seem to think it does, at least in my opinion, is the Lawrence v. Texas case, which said moral disapproval of a relationship in and of itself is not sufficient to criminalize that relationship.  It’s one of the reasons the lawyers and judges involved waive off concerns about a slippery slope.  The arguments that achieved the victories don’t work.  You’d have to find a new legal theory and, frankly, I can’t see one unless the judiciary decides to move the goalposts entirely and dispense with all historical precedent.

The Interesting Conspiracy Theory of the 6th Court Ruling

There is a hypothesis – take it for what you will, but there are too many puzzle pieces that fit for it to be discarded out of hand – in which the 6th court ruling was a purposeful attempt by the judiciary to set up a circuit-level conflict so the Supreme Court could deliver another Loving ruling.  Justice Ginsberg talked about the case back in a discussion in September, saying the only real chance the court would have to jump in during the upcoming session, ruling before next summer, would be if the decision broke the huge streak of wins and upheld the bans against gay people.  Judge Sutton, the conservative who wrote the majority opinion and once clerked for Justice Scalia, was whispered in the past few months to be on the side of marriage equality and is the same man who ruled in favor of Obamacare, setting it up for John Roberts to uphold the health care mandate across the country.

The majority opinion is written so carefully, in such a way that it begs to be struck down, that the dissenting judge, Martha Craig Daughtrey all but accuses them of teeing up the ball for the Supreme Court to legalize marriage equality nationwide while ignoring the real couples in front of them that now have their lives on hold.  Specifically, she writes:

Because the correct result is so obvious [after pages and pages of quoting other rulings and changes in precedent], one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same- sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.

I’m inclined to agree with her assessment.  It’s just too perfect.  You couldn’t ask for a better case to appeal to the Supreme Court than this one.  In addition to bringing up absurd legal arguments that will be dismissed out of hand (and they know it for the reasons we’ve already discussed), such as the polygamy quote, the majority opinion goes out of its way to talk about how there is no real reason to deny gays the right to get married, saying things like:

“Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.” – Majority opinion, page 20

Then turns around and says gay people should be subject to a vote of their fellow citizens on whether or not they get these rights as it isn’t the role of the judiciary to step into the question because the states might have been motivated by the biological reality of procreation:

“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.”

Thus rehashing the procreation argument that many of the 50 or so other courts have addressed and we already touched upon earlier right after savings that gay people are parents, parroting Kennedy’s pro-equality rulings.

It talks about the right of a State to determine its own marriage laws but then jumps into a discussion of Loving, which contextually provides an example of where the state were overridden and makes such absurd claims as that case supporting traditional marriage rather than the radical expansion of individual freedom it was!  To go from “states should decide, not courts” to “let’s talk about Loving” is either an act of supreme stupidity or a sleight-of-hand for further up the food chain, especially when the assertion is so wild:

“When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

The majority ruling, at times, all but mocks the so-called “sanctity of marriage” argument that the state is concerned about setting an example for others:

“States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue.” — Majority opinion, page 22

It goes on and on, example after example, page after page.  It looks too much like an inside job, contradicting itself, past Supreme Court decisions, and all other appellate courts.  It’s possible it’s not – the 6th circuit in Tennessee is, after all, the most reversed circuit court in the country, originating a big percentage of cases that are struck down or reversed – but it looks too much like a gift to the marriage movement.  It’s so wonderful it’s almost like Justice Kennedy was in the room with a checklist making sure it contradicted everything he’s done in the past generation so he can reverse it with quotes from his old cases.

Even the timing is suspect.  The decision looks like it was pre-written (it mentions 19 states having marriage equality when the number is now 31 states thanks to the Supreme Court) and withheld until after the election, released just in time to get the ACLU’s appeal on the current year’s calendar at the Supreme Court.  The ACLU, in turn, decided it was going to skip the en banc request of the circuit court, which it very well might win, and go straight to the high court.  By all accounts, it looks like the powers that be want to get the South to fall in line and this was the mechanism to do that.

What I don’t know is whether the decision will be 5-4 in our favor or 6-3.  There is a part of me, and I cannot explain the reason, that thinks John Roberts might use this as a chance to secure his legacy on the court, writing a decision in favor of marriage equality that will eventually rank up there with Brown v. Board of Education, Loving v. Virginia, etc.  It will be, most likely, the single most important decision of his tenure on the court in terms of legacy and the measuring stick by which he will be judged for not only the rest of his life, but in the history books.  He’s a very smart, calculating man.  I don’t know if he will want to opportunity to pass because if it does, he’ll never be able to make up for it.  He keeps his cards too close to the vest, though.  Even his vote against DOMA wasn’t based on the question of equality, but a technical maneuver that, I suspect, was misdirection.  I’m also not sure that the subtly implied arguments against adoptive parents (his children are adopted) are going to sit well with him as he reads the testimony that effectively calls him a second class parent, something the 6th circuit judges knew when they wrote that majority opinion.

The whispers, and evidence, could be wrong, though.  It’s possible the judges really just were that incompetent (I’m not taking anything for granted) but you generally don’t get that far in life if you are.

Whatever you do, take the time to read the dissent.  It’s hilarious and (by judicial standards) brutal.  It begins on page 53 out of 75 (black numbers) or page 43 (blue number).  Her response to the idea judges don’t have the authority to protect the constitutional rights of citizens against majority rule, but instead must let the people decide everything or at the very least “wait and see” until some unknown time in the future regardless of the people seeking justice in the courts today, is one of my favorite parts:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.