Does the legalization of same-sex marriage in the United States mean that polygamy also will be legalized? Probably not immediately. But probably eventually.
Historically and culturally, same-sex marriage and polygamy are distinct. For example, historically no nation on earth allowed same-sex couples to marry before the year 2001, when a Danish law allowing same-sex marriage took effect. Today (2017), a total of only twenty-three (23) nations have legalized same-sex marriage. That amounts to less than twelve percent (12%) of the 193 sovereign nations in the world that permit same-sex couples to marry.
On the other hand, historically polygamy was widely practiced in many societies. One ethnographic study estimates that nearly half of all known societies in human history regularly permitted polygamous marriage and many others allowed polygamy episodically or for certain sub-groups.
Today It is reported that twenty-six (26) African nations and twenty-two (22) Asian nations still permit polygamous marriage. Some other nations allow certain groups (such as Muslims or members of some indigenous cultures) to practice polygamy. Thus, more than twice as many nations permit polygamous marriage as permit same-sex marriages.
Moreover, there is little overlap between the societies that allow polygamous marriage (which tend to be traditional, conservative cultures) and those that allow same-sex marriage (which tend to be progressive, liberal cultures). Culturally and politically, there is little overlap of or integration between the social subgroups that embrace polygamy and those that accept same-sex marriage.
As a matter of constitutional law, legalization of same-sex marriage does not necessarily require the legalization of polygamy. A federal district court in Utah clearly rejected the claim of polygamists that the legalization of same-sex marriage compels the legalization of plural marriage (polygamy) also. The polygamous plaintiffs (Kody Brown and his four “wives,” stars of a reality television show “Sister Wives”) appealed but the U.S. Court of Appeals for the Tenth Circuit rejected their claims for lack of standing because they had failed to show that they faced a “credible threat of prosecution.”
On Tuesday, January 24th, the Supreme Court of the United States also declined to consider an appeal by Mr. Brown and his wives. In Brown v. Buhman, the appellants sought to have the high court hear their challenge to a Utah law that not only prohibits polygamous marriage, but which also bans cohabitation by married persons with others to whom they are not married. The Court refused to consider their claims.
While Utah, like all other states, must allow same-sex marriages (under the Supreme Court’s 2015 ruling in Obergefell v. Hodges), the courts consistently have rejected claims that states must also allow polygamous marriages. Both of the lower courts in the Brown case had ruled against the polygamists.
Logically, the principles that undergird the Obergefell ruling for same-sex marriage seem to support a claim for polygamous marriages. Justice Roberts’ powerful dissenting opinion in Obergefell emphasized that there was no principled distinction between the majority’s arguments for same-sex marriage and the arguments for allowing polygamous marriage. He asked:
“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ … , why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … , serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”
But there is more to law, even constitutional law, than mere logic. Culturally, same-sex marriage is a very popular cause support by influential social elites. Polygamy, on the other hand, lacks widespread support by influential elites, and often is identified with marginal and unpopular social sub-groups.
Politically, groups favoring same-sex marriage were able to get some state lawmakers to legalize same-sex marriage, but no state legislature has allowed polygamy generally in more than 130 years. Same-sex marriage is promoted mostly by influential, liberal, non-religious groups, while polygamy is largely rejected by those leading social classes.
So in the short-term, the legalization of same-sex marriage does not require the legalization of polygamous marriage. The two forms of marriage are supported by very different legal claims and social groups.
However, the long-term story could be different. If, as many conservative commentators predict, the legalization of same-sex marriage will hasten and contribute to the disintegration of the institution of marriage that may lead to the acceptance and legalization of polygamy.
If marriage is really not very important, if marriage can mean whatever the parties marrying want it to mean, it will be hard to reject the claims for polygamy. So the legalization of same-sex marriage has set in motion social forces which, in the long run, probably will lead to the legalization of polygamy as a consequence of the diminution of social respect for the institution of marriage.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.