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Guest Commentary: Polygamy and Autonomy
David B. Fletcher
Christians believe that the marital union is to involve a man and a woman in lifetime fidelity. Following this longstanding conviction, Western society has always disallowed polygamy, the practice of a man having more than one wife, or polyandry, a woman having more than one husband. Most Americans and Europeans have difficulty even taking seriously the idea that there is a right to engage in polygamy. But how solid and well grounded is our societyıs commitment to the normative ideal of heterosexual, monogamous marriage? Recent developments in the law and in social philosophy suggest that monogamy might be in for a serious challenge. In a recent and much-publicized case, Tom Green, a Utah man, who lives with his five wives and 29 children, was convicted of bigamy and failure to pay child support, for which he may receive a 25 year sentence. In this case, which CNN calls "the first high profile bigamy case in half a century," Mr. Green went public in defending his lifestyle decision and denouncing those who oppose him.1 Mormonism practiced and promoted polygamy from its founding in the 1840s until 1890, when it formally renounced the practice. Utah banned polygamy as a condition of being received into the Union, and polygamists were prosecuted in Utah through the 1950s. Various Mormon sects in Utah still endorse the practice, and it is estimated that 30,000 cases of polygamy exist in the state.2 Why can't Mr. Green live as he wishes? Should individual autonomy extend to being able to define marriage as one chooses? Although polygamy is defended on the basis of sectarian views, the American Civil Liberties Union of Utah opposes that state's bigamy law. Stephen Clark, the chapter's legal director, says that:
Living arrangements are really the most intimate kinds of decisions people make. Talking to Utah's polygamists is like talking to gays and lesbians who really want the right to live their lives, and not live in fear because of whom they love. So certainly that kind of privacy expectation is something the ACLU is committed to protecting. The bigamy statute, like sodomy statutes and like other anachronistic moralistic legislation, goes to the core of what the Supreme Court identifies as important fundamental privacy rights.3
Not only in the ACLU, but also in the highest ranks of philosophy, this ideal of individual liberty with frighteningly few restraints has been advocated. Several of the most prominent figures in contemporary ethics made the historic move of offering amicus curiae testimony before the United States Supreme Court as they faced euthanasia decisions in 1997. The authors of the brief are some of the most prominent social philosophers of the latter part of the twentieth century: Ronald Dworkin of the University of Oxford, Thomas Nagel of New York University, Thomas Scanlon, Robert Nozick and John Rawls, all of Harvard University, and Judith Jarvis Thomson of the Massachusetts Institute of Technology. The document, Assisted Suicide: The Philosophersı Brief, was submitted to the Supreme Court and was also published in the New York Review of Books.4 In the words of one critic, "The sheer existence of a brief signed with these names proclaims that the opinion of America's most elevated intellectuals is exactly where one thought it would be: solidly in favor of declaring a constitutionally protected right to doctor-assisted suicide."5 The Brief's authors explain autonomy as the right of "every competent person . . .to make momentous personal decisions which involve fundamental religious or philosophical convictions about life's value for himself." Expanding on this, they argue that
certain decisions are momentous in their impact on the character of a person's life decisions about religious faith, political and moral allegiance, marriage, procreation and death, for example. Such deeply personal decisions pose controversial questions about how and why human life has value. In a free society, individuals must be allowed to make those decisions for themselves, out of their own faith, conscience and convictions.
Although the authors are creative philosophers who have made a number of original contributions to social and ethical theory, they are content to allow individual liberty to be defined by the Justices of the Supreme Court in such recent decisions as Planned Pd v. Casey, 505 U.S. 833, 851 (1992). The authors express solidarity with that ruling which held that "matters involving the most intimate and personal choices a person may make in a lifetime...are central to the liberty protected by the Fourteenth Amendment," and that
at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life...Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
So to be free I must "define my own concept of existence, of meaning, of the universe and of the mystery of human life." This is argued on the basis of a false dichotomy: The alternative is either radical, individual freedom without constraint, or blind and meaningless obedience to state coercion. Based on this view, the state cannot shape us, but can only compel obedience. But why should we think that forming our convictions out of obedience to an authority automatically means that our beliefs cannot be truly meaningful? The idea that we may help to shape the character of those over which we exercise authority, such as children and students, is hardly new, and Christians believe that we can form meaningful life values in obedience to the Lord and his Word. The unbounded liberty of which the authors speak cannot be promoted without (in principle) allowing freedoms that society has considered out of bounds. Note that according to the authors, the liberty to seek suicide is a legitimate extension of that autonomy that ranges over "decisions about religious faith, political and moral allegiance, marriage, procreation and death." Yet society has never permitted autonomy to such an extent, nor could it do so; nor, as far as I know, would all the Brief's authors truly wish it so. While the choice of religious faith is arguably a matter of individual choice in modern liberal societies, political allegiance is seldom so considered. Every nation has an interest in fostering such allegiance, and even in the most liberal of democracies there is a crime known as treason. Nor, as Mr. Green has learned, do we allow complete autonomy in the sorts of marriage arrangements we sanction. Marriage has always been closely regulated by law. The argument of the Brief would seem to entail that an individual is free to enter and leave the marital state as he or she chooses, or to marry anyone of oneıs choosing, including perhaps one's brother or sister, or to enter into polygamous relationships. The substantial body of law regulating the institution of marriage, which at present prohibits each of these exercises of personal liberty, is incompatible with the autonomy defended by the Brief. According to the Brief, people ought to be allowed to determine for themselves the meaning of marriage, just as they can determine the meaning of life, death and faith. We might have thought that few if any would seriously propose such a completely libertarian approach to marriage, but Mr. Green does so, and so does the Utah chapter of the ACLU. But it is not simply in polygamy that individual autonomy has been undermining traditional concepts of marriage and family. Perhaps less exotic but even more frightening than polygamy is the recent U.S. Census study that tells us, according to Newsweek, that only one in four American households is a headed by a traditional two-parent, married couple, and that
The number of families headed by single mothers has increased 25 percent since 1990, to more than 7.5 million households. Contributing to the numbers are a high rate of divorce and out-of-wedlock births. For most of the past decade, about a third of all babies were born to unmarried women, compared with 3.8 percent in 1940.6
Those who value the institution of monogamous marriage and believe that it is essential to the health and welfare of our society and our children will need to seriously tackle not only polygamy and the unbridled individual autonomy that supports it, but other trends that undermine the family, as we work to strengthen marriages and deal with the consequences of societyıs tragic experiment with the family. - E&M
1. "Utah polygamist found guilty," May 19, 2001, Posted: 6:29 AM EDT (10:29 GMT) http://www.cnn.com/2001/LAW/05/19/utah.polygamy/index.html, accessed 8/3/2001. 2. "Polygamy or abuse? Utah case stirs controversy," August 8, 1998, Web posted at: 4:05 p.m. EDT (2005 GMT) http://www.cnn.com/US/9808/08/polygamy/index.html, accessed 8/3/2001. 3. "ACLU of Utah to Join Polygamists in Bigamy Fight," July 16, 1999 http://www.aclu.org/news/1999/w071699b.html, accessed 8/3/2001. 4. New York Review of Books, March 27, 1997; available on the Web at http://www.nybooks.com/nyrev/WWWfeatdisplay.cgi?1997032741F. 5. J. Bottum , "Debriefing the Philosophers," First Things 74 (June/July 1997): 26-30. 6. Barbara Kantrowitz and Pat Wingert, "Unmarried, With Children," Newsweek, May 28, 2001. http://www.msnbc.com/news/575968.asp?cp1=1, accessed 8/3/2001.
This article appeared in Volume 17:3 of Ethics & Medicine.