Polygamy in Religion, Literature, and Popular Culture

Polygamy may seem like a fresh area of public concern. Polygamous practices have entered mainstream consciousness through a number of avenues in recent years.Footnote ⁴ The television drama Big Love presented an appealing fictional representation of a modern polygamous family. The popularity of “reality television” programs such as Polygamy U.S.A. and Sister Wives allows the presentation of a carefully curated documentary-style image of modern polygamous life that appears to involve no abuse or coercion. To be sure, there is drama among the spouses, but this resembles the drama in other reality programs involving “real housewives,” with the innovation that all of these wives are married to the same husband.

Imagining the lives of the men, women, and children involved in contemporary polygamy has also been taken up as a theme in popular contemporary novels. In The 19th Wife, David Ebershoff retells the brutal story of Ann Eliza Young's nineteenth-century experience as a plural wife of Brigham Young, alongside the story of a murder set in a contemporary fundamentalist polygamous sect.Footnote ⁵ Brady Udall's novel The Lonely Polygamist uses multiple voices to describe the pain of polygamy from the perspective of an overwhelmed husband, an unappreciated wife, and an unloved child who goes to desperate and tragic lengths to seek adult attention.Footnote ⁶ In The Secret Lives of Baba Segi's Wives, Lola Shoneyin describes the motivations and power struggles over money, status, and affection among the five spouses in a contemporary Nigerian family.Footnote ⁷

As noted, in the nineteenth century Ann Eliza Young shared her experience in her memoir, part of the genre of Mormon “captivity narratives”—autobiographical accounts in which the vulnerable female narrator describes her imprisonment and escape from the Mormon community.Footnote ⁸ More recently, several women who were forced into underage and plural marriages in the modern Fundamentalist Church of Jesus Christ of Latter-Day Saints have also published memoirs of their abuse and escape, and they have testified in criminal trials against the perpetrators.Footnote ⁹

The narratives given by these fiction authors and these young women, in both their memoirs and their evidence in court, paint a picture of polygamous families fraught with competition, indifference, and abuse. These recent popular portrayals resonate with widespread understandings of the harms of polygamy. Those raised with a familiarity with the Jewish, Christian, or Muslim traditions will recognize many of the same unhappy themes found in the biblical stories of polygamous families. Recall, for example, the unhappy triad of Abraham, Sarah, and Hagar:

Remember, also, the unhappy polygamous family of Jacob, Leah, and Rachel. Jacob is tricked into marrying Leah in order to be allowed to wed his beloved Rachel, condemning both sisters to a life of unhappy competition. “G-d saw that Leah was unloved and allowed her to have many children.” Leah gave them increasingly pitiful names that expressed her hope that, now, with this birth of another son, her husband would finally love her.Footnote ¹¹ Later children are named after a more bitter victory, namely her success in the competition with her sister-wife to bear more children. “A fateful contest I waged with my sister; yes, I have prevailed.”Footnote ¹²

While many historians begin a history of America's engagement with polygamy with an account of the battles over Mormon polygamy and Utah statehood in the nineteenth century, in his masterful book The Western Case for Monogamy over Polygamy, John Witte Jr. begins with these biblical narratives. Based on his compendious and influential expert witness brief to the Supreme Court of British Columbia in Reference Re: Section 293 of the Criminal Code of Canada,Footnote ¹³ Witte describes how contemporary understandings of the harms of polygamy are rooted in the intuitions, preferences, and judgments that have informed Western thought for millennia.

Witte notes that nowhere in the biblical text is polygamy forbidden or characterized as improper. While the Tanakh, the Hebrew Bible, contains descriptions and voices of many unhappy women in polygamous families, the men are neither traumatized nor punished for their engagement with polygamy. Certain regulations are laid down for its practice: Kings are cautioned against taking too many wives lest they be distracted from their duties. Ordinary men are forbidden to take two sisters as wives (perhaps to avoid a rivalry such as that between Leah and Rachel). If a man takes a new wife, he ought not to diminish his first wife's food, clothing, or marital rights; if he loves one wife more than the other, he must still treat the children of both equally with regard to inheritance (Witte, 57). Sometimes polygamy is actually mandated. A man who seduced an unmarried virgin, for example, was required to marry her even if he was already married to another; a man whose brother died before fathering children was similarly obliged to marry his brother's widow, even if he already had a wife.

Polygamy was never a common practice among Jews during biblical times or after the destruction of the temple. It was practiced by a small number of elite families. Under pressure from surrounding Christian communities, polygamy was banned by the cherem (ban) of Rabbenu Gershom around 1030 for the Ashkenazic world. Polygamy continued to be permitted in the Sephardic community, but families could contract out of polygamy in the ketubah (marriage contract) (Witte, 58). Egyptian Jews seeking to protect their daughters negotiated contracts in which the husband gave up his right to take additional wives; such contracts have been found in the ruins of Elephantine dating to 441 BCE and in the Cairo Geniza, dating from the tenth to the thirteenth centuries CE (Witte, 49, 58).

Witte notes, correctly, that it remains possible to secure a dispensation under Jewish law to take a second wife without divorcing. Such permission might be granted if the first wife is judged to be incapable or unwilling to receive a divorce (get). One might go farther and point out that contemporary Jewish family law provides an exemplar of the ways that a system that permits polygamy for men while enforcing monogamy for women undergirds a structure of unequal family law norms and practices. A man has the right to take multiple wives and cannot be deprived of his rights over them except through his clear and uncoerced consent. A woman, conversely, can be coerced to accept a divorce. A man who wishes to remarry without the consent of his first wife to divorce may secure a heter mea rabbanim (permission of a hundred rabbis) to deposit a get with a rabbinical court for her and take an additional wife. Such a heter was recently granted in a get refusal case, allowing the husband to refuse to grant his wife the divorce she had been seeking for seven years, while taking another wife.Footnote ¹⁴

Even without such permission, the underlying legitimacy of male polygamy means that a man who refuses to grant his wife a Jewish divorce may have lovers, marry under civil law, and even father children with his new partner while incurring no legal impediments for himself (or his children) under Jewish law. A woman, on the other hand, risks being condemned as an adulteress under Jewish law, and any children born to her that are fathered by a man other than her husband will be characterized as mamzerim (illegitimate). They and their descendants are forbidden to marry within the Jewish community. This power imbalance is exploited by some men to inflict pain on their ex-wives or as a bargaining tool to induce them to negotiate away the rights they enjoy under civil law to property and custody in order to win their freedom from the Jewish marriage.

Polygamy and Multicultural Toleration

Witte argues that claims of cultural superiority of monogamous groups over polygamous ones have undergirded this discourse for centuries (160). The language and world view seen in nineteenth-century US cases weighing the merits of polygamy, for example, recapitulate claims that go back to antiquity. While Western objections to polygamy are now rooted in Christian doctrine, Witte shows that well before the birth of Christ monogamy was privileged as the only form of marriage to produce legitimate offspring. Indeed, outright prohibitions on polygamy originated in Roman law and were subsequently adopted by Christian jurists and theologians. Pressure to give up polygamy within the Jewish community came first from Roman emperors (Witte, 112), and later from Christian rulers who imposed criminal prohibitions aimed at stopping “the perfidies” and “iniquities” of the Jews (Witte, 56). Rejection of Jewish polygamy became a trope in Christian anti-Semitism for centuries to come. Practices that suited the biblical forefathers were characterized as a special dispensation suited to a more primitive time.

In medieval times, Witte writes, leading thinkers “retooled the traditional narrative of progress argument to heap scorn upon Muslim polygamy” (159). Muslim polygamists were not merely barbaric, primitive, and lustful; their excessive procreation risked overwhelming the expansionist ambitions of the Christian church and needed to be resisted (Witte, 159). While the biblical patriarchs had engaged in polygamy with license from G-d, Muslim polygamy grew only out of their own unchecked desires (ibid., 160).

By the seventeenth century, Witte shows, condemnation for the polygamous practices of Jews gave way to a focus on the practices of inhabitants of the new world of Africa, Asia, the Americas, and the Ottoman Empire. The line between the civilized cultures of the West and the backwards, barbaric, and pagan practices of these cultures continued to be demarcated by polygamy, according to these narratives (Witte, 282). Baron Montesquieu explained that polygamy was more suited to “hotter climates,” where girls reached physical maturity long before attaining reason, thus making a marriage of unequals more appropriate. Women born in colder climes matured later and were fit to enter into egalitarian monogamous marriages (Witte, 361). It is only with the emergence of philosophical liberalism that the critique of the polygamous other begins to be coupled with an interrogation of the ways in which monogamous marriage also enforces relations of gender inequality within marriage. Witte notes, for example, that Mary Wollstonecraft's arguments against polygamy in A Vindication of the Rights of Woman condemns both forms of marriage for reducing women to “a passive ‘toy of man’ to be shaken and rattled whenever, dismissing reason, he chooses to be amused” (371).

This evolutionary narrative of the rejection of polygamy in favor of monogamy echoes in the way courts and commentators approach polygamy today. Those aware of this racist legacy must carefully parse the ways in which our understanding of the harms of polygamy may reflect cultural biases as well as valid and continuing concerns. At one extreme in the deployment of this cautionary narrative, we find the judgment in Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013). In his (now overturned) summary judgment in favor of the polygamous family involved in Brown v. Buhman, the Utah District Court Judge Clark Waddoups writes movingly and accurately that the Utah law purporting to ban Mormon polygamous marriages is rooted not only in prejudice against Mormonism but also in contempt for the racial minorities whom white American Mormons were thought to be emulating. Indeed, the language of the Supreme Court's famous anti-polygamy ruling in Reynolds v. United States is unambiguous:

In Brown, Judge Waddoups cites the interpretative framework of Edward Said's “orientalism” to identify a clear distinction between Western superiority and Oriental inferiority in the Reynolds judgment:

Grounding expressions of contempt for a religious or cultural minority based on how poorly they treat their women, perhaps without attending to the inadequacies in how women in one's own community are treated, is a familiar trope in racist discourse.Footnote ¹⁷ Cultural and religious intolerance has often been the vocabulary through which rejection of polygamy has been expressed. In Just Married: Same-Sex Couples, Monogamy and the Future of Marriage, Stephen Macedo cautions, however, that it is possible to look beyond this sad history to identify values that can be affirmed by those committed to a range of religious traditions that are violated by the practice of polygamy (157). Macedo notes that Waddoups rendered his decision on the basis of very limited evidence, producing an elegant judgment that “lacks any sense of polygamy as a lived social form” (179). Conversely, Justice Baumann in the Polygamy Reference case, who was extensively briefed by a range of expert witnesses, was able to more fully evaluate the harms and benefits of polygamy.

What Is the Harm in Polygyny?

While the term polygamy is gender neutral and denotes various marital forms involving multiple spouses, the relationships under discussion in these prominent cases are polygynous, involving one man and multiple wives. Arguments against polyandry—which involves one wife with multiple husbands—have been clear and definitive since Thomas Aquinas, at least. Long infancies and periods in which women are taken up with care of children mean they need the assistance of their children's fathers to survive. But no man would commit to care for a wife and child unless he could be certain that the child was his. Only monogamy or polygyny, Thomas reasoned, or the total isolation of married women from contact with other men, could ensure such certainty (Witte, 172). Polyandry was therefore out of bounds because, among other reasons, the men in a polyandrous relationship could not know which of them was the true father of their wife's children, and would not likely invest time and resources into their upbringing.

Many writers who discuss polygyny have noted that, in many languages, the terminology associated with polygamy is evocative of the harms it brings. Witte notes that the Hebrew word for co-wife, tzarah, means “trouble” (35). Debra Majeed tells us that the related Arabic term, darah, means “one who makes trouble” (55). In many African languages “co-wife” is literally synonymous with “jealousy”: in Luo, nyieka, means “my partner in jealousy”; in Hausa, kishiya means simply “jealousy”; in Setswana, the word for polygamy is lefufa, which means jealousy while the word for co-wife is mogadikane, derived from the verb meaning “to rival, annoy or cause a pain the stomach.”Footnote ¹⁸ You get the picture.

The account of the harms of polygamy have remained relatively stable, but the justification for using law to prevent such harms has changed over time. The early Christian fathers modeled their conception of the marriage between husband and wife on “the exclusive and enduring relationship of Christ and his church” (Witte, 70). Some of their arguments were inferred from the text: In Genesis, G-d makes “a helpmeet” for Adam, not multiple helpmeets. A man is advised to cleave unto his wife, not wives. (But the text also says “Love your neighbor as yourself” and cannot mean just the one neighbor). Some arguments were historical: after the flood, polygamy was necessary to repopulate the world. In later eras, underpopulation was not a problem, and Christianity could be spread through conversion rather than reproduction. Some arguments against polygamy were developmental: the practice was suited to primitive, simpler civilizations, whereas monogamy was the norm for the more developed Roman, Greek, and Christian communities (Witte, 98). Some arguments were what Witte calls structural: while polygamy might serve the natural goods of producing children, it cannot provide the spiritual goods of fidelity and stability that befit a Christian marriage.Footnote ¹⁹

Witte demonstrates that Enlightenment writers repeated the litany of harms identified by Christian critics of polygamy, but now used comparative cultural examples and emerging social sciences to buttress them (388). The harms of polygamy, then and now, fall into four broad categories:

1. 1. Polygamy is bad for women because it treats them as inferior to men and dooms them to lives of competition, economic vulnerability, and emotional insecurity. Polygamous marriage is not fully sharing one's life with another, but an arrangement in which women's needs are sublimated to the procreative and sexual ambitions of a husband.

2. 2. Polygamy is bad for children because girls are inappropriately seen as sexual prey and prospective brides and boys are inappropriately seen as sexual competition. Both genders are subjected to grooming and oppressive discipline to either conform to these roles or risk expulsion. Moreover, they may be subject to abuse or neglect as mothers compete to ensure more resources for their own children, as fathers distribute care and resources unequally to please favored wives, or as fathers are inattentive as they pursue new mates.

3. 3. Polygamy is bad for men because they may lose out on finding a mate when a handful of men marry a disproportionately large number of women. Even those who secure multiple spouses may be diminished as their energy, attention, and resources are divided among many wives and prospective mates. They may also miss out on the possibility of sharing the ups and downs of marriage with a soul mate whom they view as their equal.

4. 4. Polygamy is bad for society. Arguments from the field of demography note that in polygamous societies there are not enough women to go around. Some men will have more wives and some will lose out. They will not necessarily be the wisest or most virtuous, just the richest or most devious. This undermines what Carole Pateman has described as the central sexual covenant that underlies the social contract. When they exit the state of nature, men acquire confidence that other men will not interfere with their marital rights to their own wives.Footnote ²⁰ If some men are excluded from the possibility of ever acquiring a legitimate partner, their commitment to obey the rules of the social contract is undermined. Young men without sexual partners will be a menace to society, engaging in rape, prostitution, and other antisocial behavior. The propensity of modern-day polygamous societies to expel young men from their communities for fear of their disruptive influence bears this out. The trauma is exacerbated by the fact that this expulsion entails rejection by the fathers and uncles who should, instead, be a stable source of love and guidance (Macedo, 173).

Polygamous households cannot be the basis for a stable society in which dependents are cared for and educated towards civic virtue, whether this is defined as Christian piety or democratic or liberal citizenship. Polygamous families may grow so large and demand so much loyalty that they rival legitimate political powers; or, they may become so overwhelmed by dependents that they sink into poverty. The common emphasis on grooming women and youths to acquiesce to patriarchal domination renders them unfit to exercise the civic virtues of democratic political participation. The Reynolds Court describes polygamy as leading to the “patriarchal principle” that “fetters the people in stationary despotism.”Footnote ²¹ This logic is fleshed out by Witte in an excerpt from the work of David Hume:

Is Polygamy Ever Good for Women?

Critics and judges, alike, conclude that polygamy is bad for women. What they don't address is why, nevertheless, some women choose it. The British Columbia Supreme Court heard testimony from women who had fled the community and women who expressed satisfaction with it. The case of Brown v. Buhman was brought jointly by all five spouses to the marriage.Footnote ²³

Women raised within fundamentalist polygamous communities are groomed to accept its norms and to be incapable of pursuing a life outside its borders. But interviews with women drawn to polygamous life from the outside world suggest that its limited benefits may hold appeal to women who are otherwise unable to build a satisfying life. As divorcees, widows, single mothers, or single women seeking to marry and have children, their needs may be both economic and spiritual. Marriage within their faith, be it Mormonism or Islam, may be a predicate or means to achieving these goals.Footnote ²⁴

Debra Majeed's beautifully written book takes up this challenge to identify the concrete benefits, harms, and challenges for women living a polygamous lifestyle. In Polygyny: What It Means When African American Muslim Women Share Their Husbands, she describes polygyny as it is practiced by members of the African American, Nation of Islam.Footnote ²⁵ Majeed is an engaged observer, herself a member of the Nation of Islam. She employs a mix of methodologies, including social science surveys, ethnography, and analysis of religious texts—all read through the lens of Muslim womanism, “a philosophical perspective that draws attention to the varied conditions of black womanhood as experienced by African American Muslims, and the values of Islam they articulate” (Majeed, 2–3). Her account also deploys a range of methods, from standard exposition to a fictionalized dialogue designed to juxtapose the range of women's responses to their experience with African American Muslim polygyny.

Majeed sets out to find out why African American Muslims might choose polygamy and what it meant for their lives. Her first exposure to this issue came about through being called upon to comfort a friend whose husband was about to take a second wife. While Majeed's own marriage is monogamous, her husband kept open the possibility of taking a second wife, saying “I cannot say ‘No’ to what Allah has said ‘Yes’” (ix).

Majeed divides the marriages she studied into three broad categories based on the experiences of polygamous women: those who were content with their conscious choice to enter into polygyny and described their experience as one of liberation; a smaller group of women who actively seek out polygyny to share the burdens of marriage with another wife and describe their experience as one of choice; and a final group, women who experience polygamy as a loss that has been imposed upon them through coercion. She found no instances of underage or forced marriage in the communities she studied (128).

While fundamentalist Mormons in the United States seek to retain practices that existed in their communities within living memory, adherents to the Nation of Islam seek to recreate the imagined traditions of their African ancestors. Majeed's account makes clear that polygyny was adopted by the twentieth-century Nation of Islam community to address the social problems of a gender imbalance among observant Muslim women and men. Marriage in Islam is understood to be a significant religious obligation, and sex and procreation outside of marriage are forbidden. Permitting polygamy allows more women to experience the marital component of their religious life and to enjoy some legitimate form of marital intimacy. Polygamy is particularly promoted as a means of providing these benefits to women who may struggle in the open marriage market because they are older or are burdened with children. Women may also seek to participate in this cultural tradition to enjoy the enhanced prestige that married status affords them in their mosque community.

Both classical Islam and the doctrines of the Nation of Islam stress that polygamy is not for everyone. While a man may be formally entitled to take up to four wives at once, this is on the condition that he is able to support them and treat them with equal dignity, love, and respect. Classical Islam expressed admiration for a man who married an orphan to save her from penury and vulnerability. The doctrines of the Nation of Islam characterize African Americans as a people who have been left fatherless by the legacy of slavery and oppression, for whom polygyny may be an admirable response (Majeed, 57).

Majeed's research suggests that this is not quite how things have worked out. While polygamy is often recommended by proponents as a means of finding partners for the middle-aged single mothers, second wives are often younger and childless. Moreover, while polygamous marriage may be meant to protect a widow or divorcee and her children, many women ultimately receive little support from their husbands, and they may actually see their incomes diminished as their husbands divide their resources between multiple households.

Majeed also finds a clearly negative impact of polygyny on children. Some men who marry women with children, for example, insist that the children be sent away to live with their biological fathers after marriage. The incomplete blending of families may leave children vulnerable to sexual abuse by half-siblings, or by other nonrelatives introduced into the household (Majeed, 120). While taking a new wife may provide a male role model for her children, his existing children may feel abandoned.

The resurrection (or adoption) of the practice of polygyny is complicated by what Majeed diagnoses to be a poor level of religious literacy among men, women, and even clergy in some communities. Men do not know the full set of responsibilities and limitations on polygyny, and women do not know their rights under religious law or civil law. Majeed explains that polygamy can function more as a form of resistance against an oppressive (white) culture than an orthodox form of religiosity:

Women, for example, typically do not know they have the right to negotiate a written marriage contract that might preclude polygyny and that would provide for mahr (dower) upon divorce (Majeed, 43). Few marriages in the community are registered under civil law, thus giving wives, whether first or subsequent, no enforceable claims in civil courts to family property or child support upon divorce. Those who marry only under religious law may not have a written marital contract that could be enforced in Islamic or civil courts. If an Islamic court were to make an enforcement order, it has no means to enforce it. Even those women whose Islamic marriage is documented may choose not to turn to Islamic courts should the marriage end, in which case they are likely to walk away with nothing. They may also fear exposure of private matters in a public space, or exposing their husband to prosecution for offenses related to polygyny under secular law.

The question of why women choose polygamy is not always relevant, as Majeed also shows that many women find themselves involved in a polygamous marriage without their notice or consent. The Nation of Islam's teachings on polygyny entitle women to notice of a second marriage but give her no power to veto such marriages (Majeed, 107). A woman may learn that her husband has taken a second wife after the fact from her husband or even from the gossip of witnesses who attended the ceremony.

New brides, furthermore, may or may not know that they are entering a polygamous marriage. Majeed points to the marriage in 2004 of Nation of Islam leader Wallace D. Mohammed to a young wife who believed herself to be entering into a monogamous marriage. She found out only after his death that her husband had remained married to his first wife, and that her marriage therefore had no legal status.

Majeed identifies a small countertrend of couples who discuss polygyny, study the relevant religious texts, and choose potential second wives together. For these women, polygamy may not be appealing but is acceptable as an alternative to divorce or as an attempt to attain a higher level of observance of religious law that will be rewarded in the afterlife. This view “posits husband-sharing as a form of cultural jihad—an internal struggle that ‘good’ Muslim women endure for the maintenance of community life” (Majeed, xi).

Majeed concludes,

In terms of policy recommendations, Majeed promotes neither the practice of polygamy nor its abolition. Instead, she recommends subjecting such marriages to tighter regulation, both by the state and by African American Muslim communities themselves.

Law's Response to Polygamy: Criminalization? Regulation? Recognition?

Even given the preponderance of studies and testimonies finding that polygamy is an unsatisfactory lifestyle for women and children, should the law nevertheless protect the rights of individuals to make what may appear to others to be poor choices? If there is dignity in forming and pursuing one's own conception of the good life, should the state allow citizens to choose even inegalitarian relationships that can be a source of meaning and satisfaction? If the state inveighs against such rights, should courts and legislatures passively refuse to recognize the validity of these marriages, or should they actively criminalize and prosecute polygamy?

This is the question taken up by Macedo in his engaging Just Married: Same-Sex Couples, Monogamy and the Future of Marriage. Macedo argues that despite Justice Scalia's concerns about marriage's slippery slope to infamy, same-sex marriage and polygamous marriage have little in common beyond their historical outlaw status (148). Indeed, he argues, “the basic principles of equal liberty and fair opportunity that undergird the case for same sex marriage argue against polygamy” (153).

The state, Macedo argues, has a clear interest in granting legal status, with corresponding rights and responsibilities, to some marriages but not others. The institution of marriage structures the lives and identities of married persons, but it also does a great deal of work for the state by providing for the rearing and education of children, the care for dependent ill and old, and channeling a range of social and legal entitlements. As stated in the classic case of Maynard v. Hill,

In Anglo-American law, marriage is both a status and a contract. For many years, the terms of this contract would not be varied by the will of the parties. The institution of marriage could be altered only by amendments to the underlying legal framework. Although some variations could be implemented through private law, such as placing the assets of an heiress in trust beyond the reach of her husband, most people structured their marriages in accordance with established marital norms. Until the 1970s, prenuptial agreements were void as against public policy because the state had an interest in preserving marriage. Today, “prenups” may be used to opt out of the background property regime, granting spouses more or fewer assets than they would otherwise be entitled to in a standard divorce settlement; or to establish more onerous grounds for divorce.Footnote ²⁷

The basic legal terms of marriage have also changed in recent years to recognize marriages that were previously prohibited as socially harmful. For example, laws prohibiting the marriage of spouses of different races,Footnote ²⁸ deadbeat dads,Footnote ²⁹ and incarcerated prisonersFootnote ³⁰ were struck down. The United States Supreme Court's recent decision in Obergefell v. Hodges extended marriage rights to same-sex couples, while emphasizing the merits of monogamous unions:

The Obergefell court found that the right of same-sex couples to marry was rooted in their rights to exercise personal autonomy in structuring one's intimate life, their rights to enjoy the benefits of a “two-person union unlike any other in its importance to committed individuals,” and the right to provide stability and safety for children and families.Footnote ³²

The evidence amassed by Witte (and adduced in the Polygamy Reference decision) demonstrates that in many situations, polygamous marriages fail to provide these benefits. The typical forms of polygamy, that is, fall short of the ideal forms proposed by its advocates. Entry into forced underage marriages in fundamentalist groups, in particular, does not reflect the autonomous choices of those involved. Young girls groomed for underage marriage and coerced to accept it may not have the opportunity to exercise autonomy in choosing to marry; the relationship may not involve intimate commitments envisioned, and the family may be neither a source of safety or security for children. See, for example, the findings of fact in the criminal prosecution of the Fundamentalist Church of Jesus Christ of Latter-Day Saints leader Warren Jeffs as an accessory to the statutory rape of Elissa Wall. As part of his role as “prophet”, Jeffs ordered Wall, then aged fourteen, to enter into and consummate a marriage with her adult first cousin:

In her memoir, Wall recalls her feelings as she was coerced to enter into this spiritual marriage to a man she did not love. When her uncle, who was performing the ceremony, asked if she took this man “of her own free will and choice” she recalls:

Macedo also recharacterizes some of the classical harms of polygamy as violative of other important liberal principles. Allowing some higher status, wealthier men to amass many wives, for example, may violate norms of distributive fairness by preventing less advantaged men from being able to attain the social good of marriage (Macedo, 164). He argues that polygamy is not merely contingently, but inherently unequal. The structure of the marriage, with the husband as hub and the wives as spokes, is inherently asymmetrical and unjust. In addition to lives of insecurity and jealously the wives are related only to the husband, not to each other, and can be cut off from co-wives through expulsion or divorce (Macedo, 170–1).

If polygamy is not entitled to recognition, should the state nevertheless cease to criminally prosecute those who practice polygamy without legal recognition? In other words, should the state effectively ignore polygamy? Many commentators have noted that polygamy takes diverse forms. Alongside the abuses that take place in some Mormon fundamentalist communities on both sides of the border, for example, other polygamist communities and sects (including other Mormon groups) do not have a similar history of child sexual abuse, isolation, and patriarchal domination.Footnote ³⁵ These scholars argue that criminal laws should be tailored more precisely to curb these abuses rather than to the form of marriage in which they often coincide. Indeed, Canadian law requires legislatures and courts to identify the least restrictive means to securing important public policy objectives. The ruling in the Polygamy Reference case responded to this claim:

Canada also had a unique concern in decriminalizing polygamy—the possibility of an influx of polygamists from the United States and other countries. The impugned section 293 of the Criminal Code descends from laws passed in 1890 to ward off the possibility that Mormon polygamists being subjected to persecution for their practices in the United States might seek legal refuge in Canada. Canada's parliament returned to the issue of polygamy in 2015 with passage of the unfortunately named Zero Tolerance for Barbaric Practices Act, which amends immigration legislation to bar polygamists from entry into Canada and permits deportation for engaging in polygamy while resident in Canada.

The challenges of uncovering abuse in these communities—often due to geographic isolation, limited education, lack of exposure to outside culture, and the inculcation of duties of loyalty to the family above all else—make prosecution of these discrete crimes difficult. Macedo cautions that, although criminalization of polygamy may provide a pretext for entry into these communities to uncover abuse, it may also discourage the victims of abuse within polygamous households and communities from coming forward. Finally, Macedo notes that there are few prosecutions under American or Canadian laws against polygamy, but he stresses the important expressive role that such laws play in discouraging polygamy. The law's preference for monogamy can play “an educative role, buttressing important social norms that encourage people to form marital commitments that are at least formally reciprocal, equal and available to all” (Macedo, 187).

Conclusion: Are There Less Exploitive Models of Multi-partner Marriage?

What would a less exploitive model of multi-partner marriage look like? Perhaps a model might be found in the practices of self-described “polyamorists” who seek out multiple partner relationships within and outside formal marital ties. Macedo points out the lack of research on polyamorous communities and how they might fulfill or impair the values that undergird marriage (201). The Polyamorists Next Door: Inside Multiple Partner Relationships and Families, by Elizabeth Sheff, begins to fill that gap. Like Majeed, Sheff is an engaged researcher who both studies the polyamorous movement in the United States and has herself been involved in polyamorous relationships. She conducted a fifteen-year qualitative ethnographic study of polyamory, including participant observation of 5,000 subjects and 131 interviews with both adults and children (Sheff, 295). She defines polyamory as follows:

Many polyamorists commit to ideal guidelines extolling these virtues and the value of compersion, a neologism denoting the opposite of jealousy, a feeling of pleasure in seeing one's lover in love with someone else (Sheff, 115). However, Sheff finds that, in practice, polyamorous relationships are often fraught with jealousy and instability. People who established nonmonogamous relationship through a deliberate and open process, for example, still often chose the frisson of illicit sexual relationships that fell outside the limits of their agreements (Sheff, 67).

The most common configuration of polyamory consists of a heterosexual couple seeking an unattached woman willing to provide sexual and domestic services mediated through affection, rather than through market relations. Reflecting on her and her husband's elusive quest for a woman “willing to fold herself into someone else's existing plan,” Sheff says:

Interestingly, the more common and long-lasting polyamorous relationships she identified were those involving one woman and two men (Sheff, 85). Where it is not based on the implicit desire to exploit the labor of a woman, Sheff writes, polyamory can be a forum for experimentation and growth for men, who find themselves forming relationships with other men and children in ways that challenge the nature of their male identity (281). Her observations run counter to traditional Thomistic arguments about polyandry and men's need for paternal certainty:

On the one hand, having multiple parents who share the labor of childrearing may allow adults to rotate the role of primary caregiver while still pursuing professional and educational goals (Sheff, 196–201). On the other hand, Sheff notes, the interests of children can be lost in the shuffle as their parents seek to process complex feelings and court new lovers, though similar phenomena can also occur in the context of monogamous marriages that end in divorce, remarriage, and blended families (140). While some parents found that relationships with multiple adults enriched their children's lives, (Sheff, 201–5) Sheff concludes, “I would have to say that, overall, polyamory has negatively affected my children and my life” (130).

What happens when these relationships dissolve? Some of the largest and most stable families used corporate forms or trusts to provide legal links between family members not related through legal marriage or biological parentage (Sheff, 172). Others who have not made such arrangements find themselves without the opportunity to seek spousal support, property sharing, or custody of non-biological children for whom they served as the primary caregiver (Sheff, 180).

Perhaps a model for less exploitive multiple partner marriage may be found in regimes that have sought to regulate entry, exit, and administration of polygamous practices. Many religious traditions have limitations on polygamy written into the rules of the practice. For example, Islam, as mentioned above, instructs men to limit themselves to one wife and to take multiple wives only if they have the wealth and personal discipline to ensure that they treat them equally and fairly. However, as noted, Majeed points out that a majority of the men she studies in the Nation of Islam community overestimated their capacity to manage these difficult tasks, resulting in the sort of neglect and abuse these ideal rules are meant to avoid (129–31).

Working to ameliorate the harms of polygamy through civil legal regulation has also proved challenging. The object of such regulation should, at minimum, be to enable women to have the opportunity to consent to entry into a polygynous marriage and to permit them to exit such a marriage with some version of the legal protections available to spouses in monogamous marriages.

Many authors, including myself, have pointed to post-apartheid South Africa as a model for how to integrate a commitment to gender equality with recognition of polygamous marriages contracted under African customary law (see, for example, Macedo, 193). Under the terms of the Recognition of Customary Marriages Act (RCMA) which came into effect in 2000, a husband who seeks to convert his monogamous marriage into a polygamous one must seek court approval for the property regime to be applied to this new arrangement. He must submit a contract describing how property will be divided among all the spouses, including the proposed new wife. If the monogamous marriage was subject to community of property or deferred sharing of family assets, the court should, at this time, divide the assets between the existing spouses before a new spouse is added.Footnote ³⁸

The law does not explicitly require that the first wife consent to this arrangement, only that she be joined as a party so that she might become aware of his plan through this action. This poorly drafted provision might give her the opportunity to object, to veto the new marriage, or to insist upon divorce so that the family property acquired up to that point could be split before bringing in another claimant. In theory, this allows a first wife to protect her economic position by preventing her husband from depleting the family assets by sharing them with a new wife. The court also has the power to vary the contract to ensure that first wives are so protected. However, the RCMA does not say what happens if a man fails to apply before marrying a second wife

A recent decision of the Constitutional Court of South Africa, illustrates the challenges of effective regulation.Footnote ³⁹ Modjadji Mayelane and Mphephu Ngwenyama both believed themselves to be married under African customary law to Hlengani Moyana at the time of his death in 2009. Ms. Mayelane had married him in 1984; Ms. Ngwenyama in 2008. After his death, both women sought to register their marriages under the RCMA. Ms. Mayelane, the first wife, was granted orders declaring her marriage valid and the second marriage null and void because she had not consented to her husband's entry into it. The High Court of Gaunteng Province agreed, finding that the vague provision ought to be purposively interpreted to require such consent, in order to give effect to the equality guarantees in the South African Constitution. On appeal to the Supreme Court of Appeal, the declaration of invalidity of the second marriage was overturned, on the basis that the RCMA does not explicitly provide for invalidity as a remedy for failure to register polygamous marriage. Ms. Mayalene appealed this decision to the Constitutional Court of South Africa, arguing that Xitsonga customary law required such consent. The Constitutional Court concluded that, while the registration provisions of the RCMA could not properly be read to include a right to consent, the definition of “customary marriage” in the Act had developed the conception of marriage to include a requirement that both parties be of the age of majority and that both consent. Section 3(1) of the Recognition Act provides that:

The court notes, however, that section 3(1) refers only to the parties to this marriage, not to a first wife who is not herself a party to a proposed second marriage.Footnote ⁴¹ The court took evidence from participants in Xitonga polygamous marriages, advocacy groups recognized as amici curiae, legal experts, and anthropologists, and came to the following conclusion:

The court found the RCMA is premised on a conception of customary marriage that is in accordance with the dignity and equality demands of the Constitution. Equality entails that the values of traditional customary norms be balanced by an understanding that these norms may have given inappropriate precedence to the interests of men. Women may suffer material harm when they become parties to polygamous marriages without their knowledge or consent because they cannot appropriately protect their economic position or sexual health. The Constitution's conception of dignity also requires that the laws of marriage provide appropriate recognition of a woman's right to exercise autonomy and control in choosing how to shape this most intimate aspect of her life. For all these reasons, the Court found that Xitsonga customary law must be developed, to the extent that it does not yet do so, to include a requirement that the consent of the first wife is necessary for the validity of a subsequent customary marriage.Footnote ⁴³

This new understanding of the RCMA may serve as model for a more expansive transformative program for polygamous communities in which civil law works to empower women to resist and alter discriminatory aspects of their marital practices. It is a small first step, granting first wives in one customary law observing community the right to consent, shape, or exit from a potentially polygamous marriage, but it is an admirable one.