Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, August 22, 2006

Law Review Article: Same-Sex and Polygamous Marriage

Calhoun "The political expediency of not associating same-sex marriage with polygamous marriage explains the silence of those at the front of the political fray. It does not fully explain why academic philosophers and legal theorists have maintained a similar silence about the "other" marriage bar. The principle reason appears to be a conviction that same-sex marriages and polygamous marriages are substantially disanalogous. While same-sex marriages challenge the traditional gender structure of marriage, polygamy is more likely to exaggerate the gender hierarchy within marriage and is thus incompatible with a liberal democracy that values women's equality. Same-sex marriage advocates thus routinely dismiss the issue of polygamous marriage as irrelevant to the question of whether the bar to same-sex marriage should be lifted. In particular, they insist that polygamous marriages are sufficiently socially dangerous that extending marriage rights to same-sex couples will not put us on a slippery slope toward recognizing polygamous marriages.

Despite all this, the refusal to regard the marriage bar to polygamy as a significant political issue bears closer scrutiny. In what follows, this Article will be arguing that more careful attention to the historical practice of polygamy strengthens the case for same-sex marriage; and attention to the similarities between the social issues at stake in the antipolygamy campaign and the same-sex marriage campaign can productively complicate our sense of what the fundamental issues are in the same-sex marriage debate. Finally, this Article will suggest that it is not altogether clear that legal recognition of polygamous marriage is incompatible with a liberal, democratic, and egalitarian society. The proper response to same-sex marriage opponents' reductio argument may instead be, "And indeed, why not also polygamy?" Cheshire Calhoun, Who's Afraid of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy from the History of Polygamy, 42 San Diego L. Rev. 1023 (2005).Link to Article on Westlaw (last visited 8-21-06 NVS)

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