Legalizing Plural Marriage: The Next Frontier in Family Law

BRANDEIS SERIES ON GENDER, CULTURE, RELIGION, AND LAW

Series editors: Lisa Fishbayn Joffe and Sylvia Neil

This series focuses on the conflict between women’s claims to gender equality and legal norms justified in terms of religious and cultural traditions. It seeks work that develops new theoretical tools for conceptualizing feminist projects for transforming the interpretation and justification of religious law; examines the interaction or application of civil law or remedies to gender issues in a religious context; and engages in analysis of conflicts over gender and culture/religion in a particular religious legal tradition, cultural community, or nation. Created under the auspices of the Hadassah-Brandeis Institute in conjunction with its Project on Gender, Culture, Religion, and the Law, this series emphasizes cross-cultural and interdisciplinary scholarship concerning Judaism, Islam, Christianity, and other religious traditions.

For a complete list of books that are available in the series, visit www.upne.com

Mark Goldfeder, Legalizing Plural Marriage: The Next Frontier in Family Law

Margalit Shilo, Girls of Liberty: The Struggle for Suffrage in Mandatory Palestine

Kimba Allie Tichenor, Religious Crisis and Civic Transformation: How Conflicts over Gender and Sexuality Changed the West German Catholic Church

Susan M. Weiss and Netty C. Gross-Horowitz, Marriage and Divorce in the Jewish State: Israel’s Civil War

Lisa Fishbayn Joffe and Sylvia Neil, editors, Gender, Religion, and Family Law: Theorizing Conflicts between Women’s Rights and Cultural Traditions

Chitra Raghavan and James P. Levine, editors, Self-Determination and Women’s Rights in Muslim Societies

Janet Bennion, Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism

Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature

Jan Feldman, Citizenship, Faith, and Feminism: Jewish and Muslim Women Reclaim Their Rights

MARK GOLDFEDER

Legalizing Plural Marriage

THE NEXT FRONTIER IN FAMILY LAW

BRANDEIS UNIVERSITY PRESS Waltham, Massachusetts

BRANDEIS UNIVERSITY PRESS

An imprint of University Press of New England

www.upne.com

© 2017 Brandeis University

All rights reserved

For permission to reproduce any of the material in this book, contact Permissions, University Press of New England, One Court Street, Suite 250, Lebanon NH 03766; or visit www.upne.com

Library of Congress Cataloging-in-Publication Data

Goldfeder, Mark, author.

Legalizing plural marriage: the next frontier in family law / Mark Goldfeder.

pages cm.—(Brandeis series on gender, culture, religion, and law)

Includes bibliographical references and index.

ISBN 978-1-61168-834-4 (cloth: alk. paper)—ISBN 978-1-61168-835-1 (pbk. : alk. paper)—ISBN 978-1-61168-836-8 (ebook)

1. Polygamy—Law and legislation—United States. I. Title.

KF519.G65 2015

346.7301′6723—dc23                             2015010561

This book is dedicated to the anonymous donors behind the Restoring Religious Freedom Project at Emory University, whose gracious support has made this work possible. Thank you.

CONTENTS

Series Editor’s Foreword by Lisa Fishbayn Joffe

Foreword by Judge Alex Kozinski

INTRODUCTION

Revisiting Polygamy

1What Is Marriage? Privileging Function over Form

2Unbundling Marriage

3The Realities of Monogamy and the Push for Plural Marriage

4Children of Plural Marriages: A First Empirical Look

5Legalizing Plural Marriage

6Plural Marriage, Revisited

Statutes Cited

Cases Cited

Notes

Bibliography

Index

SERIES EDITOR’S FOREWORD

Lisa Fishbayn Joffe

Opponents of the recognition of same-sex marriage have cautioned that acceptance of this marital form will set liberal democracies on a slippery slope toward the recognition of other, more challenging marital forms, such as polygamy. In Legalizing Plural Marriage: The Next Frontier in Family Law, Mark Goldfeder takes up this challenge, carefully working through legal, sociological, and pragmatic objections to the legal recognition and regulation of families with more than two spouses.

Goldfeder’s approach is fresh, interesting, and engagingly written. He notes the ways in which the institution of marriage, like that of property, has already been subjected to a process of unbundling whereby its different economic, support, and psychological functions are no longer concentrated within the marital dyad but potentially spread across a broader family group and broader social support system. Moreover, he challenges widely accepted assumptions that de facto monogamy is indeed the norm in developed liberal societies.

The Brandeis Series on Gender, Culture, Religion, and Law and the project at the Hadassah-Brandeis Institute from which it grew aim to foster innovative research that explores the intersection between women’s rights and practices justified in terms of religious law norms. Mark Goldfeder’s work demonstrates how a detailed understanding of the history of Jewish law regarding polygamy can inform our reading of contemporary debates and the possibilities for novel regulatory forms.

Polygamy was largely abolished for Ashkenazi Jews in the eleventh century. For Jews in the Sephardi world, polygamy was limited by the signing of prenuptial contracts that excluded the possibility of taking any further wives. Jewish polygamy was only banned outright for both communities after the creation of the State of Israel. Exceptions to this general rule continue to be made where the husband secures the permission of one hundred rabbis (Heter Mea Harabbanim) to take a second wife because his first wife is unable or unwilling to accept a divorce because of illness or unwilling to do so in a contested divorce.

Goldfeder carefully reads the decline of Jewish polygamy to show how the practices of the wider society, shifts in popular practice, the enhanced expectations of women, and the conscious innovation of lawmakers combined to achieve this change. He argues that it is possible to distinguish between traditional patriarchal polygamy, often rooted in religious doctrine, and novel forms of ideologically based polyamory. Within these brackets, he argues that it is possible to have forms of modern polygamy that are not exploitive of women or harmful to children. He cites the lengths to which rabbis, through legislation, and women’s families, through contracting out, went to end polygamy because of its deleterious effects on women. These strategies inspire his prescriptive analysis of how an alternative polygamy could be appropriately regulated in the twenty-first century.

Legalizing Plural Marriage joins other titles in the Brandeis Series on Gender, Culture, Religion, and Law that explore the past and future of polygamy. In Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism, anthropologist Janet Bennion explores the ways in which women are attracted to plural marriage in Mormon fundamentalist communities. In Gender, Religion, and Family Law, Rashida Manjoo, Likhapha Mbatha, and I consider the pitfalls faced by postapartheid South Africa in seeking to regulate polygamy under African customary law and Islamic law. Goldfeder’s excellent volume on the past and future of polygamy in America continues this important conversation.

FOREWORD

Judge Alex Kozinski,

Court of Appeals for the Ninth Circuit

There are many books about polygamy, written from a variety of perspectives. This one stands out, however, because it is grounded in legal research. Unlike the fields of ethnography, sociology, and anthropology, legal academics rely mostly on secondary rather than primary sources. Top-notch legal scholarship is often based on fundamental texts, previously accepted scholarship, and logical arguments, sewn together in an innovative way. This book is a fine example, in addition to being accessible, well written, and timely.

Goldfeder’s intention is not to break new ground on the study of polygamy but to demonstrate that polygamy is more accessible than it may seem. He believes polygamy is the next frontier in family law after same-sex marriage, and as such, it must be addressed from a legal perspective. Goldfeder leads us step-by-step through a well-grounded thought experiment that begins with detailing how advocates might argue for the legalization of polygamy. He then provides a roadmap describing how—if it is to be legalized—this legalization should be handled. By simply adding up the pieces, Goldfeder shows that polygamy is neither farfetched nor far off; in keeping with American legislative values and freedoms; on a practical level, not particularly difficult to manage; and on a technical level, not hard to administer or accommodate within our existing legal system.

To be clear, this is not advocacy but rather a scholarly effort to distinguish between legally valid and invalid arguments for and against polygamy. Goldfeder argues that there may be a constitutionally based right to polygamous marriage, and that polygamous marriage will be inevitably legalized unless we can identify a non-legal basis to ban it. Certainly there are other perspectives, but the focus of the book is not whether polygamy should be legalized but whether it could be. Put simply, the book asks whether we could make a valid legal case for polygamy, and the answer it demonstratively and quite convincingly comes to is yes.

It’s no secret that we are experiencing a critical moment in legal and sociological history, a time of familial upheaval, crisis, and opportunity. We are in the midst of a family law revolution that will no doubt leave the world looking fundamentally different in our own lifetimes. Ethical challenges to long-standing ideas have prompted important questions, such as how, why, and when people actually obey the law, as well as how, why, and when they should and should not do so. Goldfeder’s background in journalism allows him to tackle these questions from the practical standpoint of an observer chronicling change, while his legal training equips him to act as a guide for others to understand what is happening, why it’s happening, and what we can expect to happen in the future. One can also sense that Goldfeder, a rabbi and rabbinic judge, draws on his Jewish law background to paint the practice of polygamy as something more complex than an abstraction used for good or evil, or a historical phenomenon that can be fully understood by its past failures. Polygamy, in living color, is a practice that needs to be revisited generationally, carefully, and thoughtfully. Goldfeder does just that, with a multidimensional approach that makes for a compelling and worthwhile read.

INTRODUCTION

Revisiting Polygamy

This is the first book that explains not only why the legalization of plural marriage may be on the horizon in America but also why the idea is not really as radical as you might at first glance think; why the legal arguments against it are surprisingly weak; and how administratively, by drawing on extant legal resources to reform the edges of family law, it would not actually be that difficult to accommodate.

We are all living at a critical moment in legal and sociological history. America and the rest of the world are in the midst of a family law revolution, which, in our own lifetimes, is going to leave the world looking fundamentally different. It is important to understand how and why we got to this point, where ethical challenges to age-old ideas are pushing people to ask basic and important questions, such as how and why our society and our families are structured in the ways that they are.

Before we begin we should define some terms. Polygamy is the generic word for the practice of marriage among groups of people larger than two. It comes in several forms, the most famous of which is polygyny, in which one man is married to multiple women. Its gender correlate, polyandry, is when one woman is married to more than one man. Polyamory is a form of nonmonogamy that is not heterocentric, in the sense that it allows participants to have multiple same-sex relationships as well. These relationships are not always marriage-like, but in this book I will primarily be dealing with that segment of the polyamorous population that would like to be engaging in marriage (i.e., polygamy) if they were allowed to do so. Plural marriage is a catchall term that I use to refer to any kind of long-term, adult, consensual, nonmonogamous relationship that is either officially (state sanctioned or religiously celebrated) or unofficially (in the eyes of the participants) a marriage. Polygamy can also capture those relationships, and so I use those interchangeably, noting that the phrase plural marriage seems to have less negative connotation than the word polygamy, which often tends to evoke feelings about patriarchal polygyny.

Looking for the roots of plural marriage in the Western tradition necessarily involves an inquiry into religious practice. Law and religion influence each other in many different ways, including overlapping language. As I have written elsewhere, in regard to shared language, until the last century, secular law, and American law in particular, had almost unconsciously inherited and adopted the ideological categories created by the Western religions. This is especially true of those categories arising from the Judeo-Christian tradition. For instance, while not purporting to be religious in nature, the civil laws of marriage almost naturally assumed that marriage was a generally permanent union between one man and one woman (perhaps for the recognized purpose of procreation), and took it for granted that no one else should be allowed to participate in that bond.¹ Modern democracy has recognized this reliance on religious terms and has become somewhat uncomfortable with this shared language.² Advocates of same-sex marriage, for instance, have tried to push back against these various boxes and delineations, challenging the law to eschew all connections to prior religious influences.³ In doing so, they have been willing to sacrifice all possible benefits that could be derived from preserving a common language on the altar of church-state separation.⁴ The same phenomenon, the slow push back against accepted norms, might in fact now be true with regard to polygamy.⁵

On the other side of the coin, while these shared terminologies made their way into our legal system from our collective, underlying, preconceived, and overtly religious notions, it is also interesting to explore how secular law has turned around and influenced religious legal thinking in these areas.⁶ While it is perhaps more obvious how religion affects the workings of the law—just look at how many cases the Supreme Court has heard about First Amendment issues, or how many exceptions, carveouts (i.e., accommodations), and codes exist for dealing with particular groups and constituencies⁷—the opposite is also true. While it may not be the case for all religions, it is undeniable that law sometimes influences and changes religion, not only in terms of the language that religious people use to express their values, but also in the substance of those underlying values themselves. An excellent example from American history is the Church of Latter Day Saints abandonment of the practice of polygamy after the Supreme Court declared it unconstitutionally prohibited.⁸

At the end of the day, my own beliefs about polygamy, and the reason I wrote this book, are closely tied to my personal belief in the Jewish tradition. Judaism is a religion that thinks polygamy is not only theoretically legal but also sometimes divinely sanctioned, and occasionally even mandated.⁹ Yet a quick look at Judaism,¹⁰ Mormonism,¹¹ and even (arguably) Islam¹² shows that despite the legalization and initial tolerance toward polygamy, these religions themselves have moved away from the practice, experientially.

Interestingly, the story of Jewish polygamy has no clear-cut ending; there was no one defining moment or document that shifted the Jewish societies in Western Europe away from polygamy and into monogamy. But over time, these norms did shift, and the change must be understood in the context of particular historical realities.¹³

All of Jewish law is, at its core,¹⁴ an act of holding multiple values in a dialectic tension.¹⁵ The law has areas that shift, contextually, when more than one legitimate concern is at play. Although a particular action may be legal in one generation or location, other arguments could exist that would affect its continued legality. Also, additional factors might come into play in the future that would shift that sometimes-precarious balance in the opposite direction.

The time eventually came when this way of thinking did shift. The outside pressure of an increasingly monogamous secular and Christian legal world gradually grew, and at just the right moment it combined with multiple Jewish developments and concerns, including at the forefront an internal pressure that had been building in the Jewish world to fix the perceived gender inequalities of Jewish family law. Polygamy was never commonly practiced amongst world Jewry, but taken all together, the benefits of officially outlawing polygamy now outweighed the benefits of even keeping it legal on the books. The abovementioned factors led to the promulgation of two decrees, commonly known as two of the bans of Rabbeinu Gershom.¹⁶ One dealt with unilateral divorce, and the other with polygamy. Both served as an attempt to legitimize Jewish family law both internally and to the outside world.

In tracing these strands of Jewish law’s historical development, we can see the ways in which marriage norms within a community are mutable across time and place.¹⁷ Within reason, and when justified, marital doctrine can adapt to the practical and ever-changing needs of the community. A survey of the sources reveals several underlying reasons for the early practice of polygamy.¹⁸ In a society that valued and depended on offspring, having many wives increased a man’s chances of having many children and provided a ready supply of labor.¹⁹ Historically, plural marriage served political purposes through the forming of alliances.²⁰ Occasionally, it was also used to provide support for the helpless in times of surplus women, such as after a devastating war or famine. A woman, meanwhile, may have preferred the status of a wife, even a secondary wife, to that of spinsterhood, or to living under the authority of a father or a brother.²¹ Jewish law, from the perspective of a practitioner, is a sometimes-shifting scale that allows for adaptive modality in changing circumstances; there is always enough leeway and flexibility to provide an answer for literally every situation on earth.²² Why was polygamy allowed in the old days? In some situations, having it available as a tool or as an option was useful, whether to increase the number of viable children being born, to feed the needy, for political stability, or a number of other conceivable and reasonable reasons.

At some point though, the reality began to change, and society moved away from a model of male-centric marriage toward a system where a marriage of just two people really became a fuller one. Jewish law appreciated this and accorded status and recognition to those relationships that furthered better social policy and that provided better protection for the vulnerable.

Interestingly, although polygamy was very consciously removed from the realm of practice, it was never removed from the theoretical discussions in the study hall, nor was its practice ever retroactively whitewashed or hidden like some shameful thing in the tradition, even after it was banned. Jewish polygamy still occupies a prominent place on the shelf of history in the study hall/ivory tower, important both for the values it once held and in reference to the values that led to its decline.

Unlike the arguments in contemporary debates either lauding²³ or castigating²⁴ polygamy, the Jewish tradition over time has refused to categorize polygamy as inherently either evil or good. Instead, it has recognized the institution as just another tool that has a time and a place, the abuse of which is wrong and the support of which is sometimes practically a good idea.

On a personal note, I found this characterization of the phenomenon very helpful and comforting, and my own studies have corroborated this description. In the past I have struggled with the idea of legalizing polygamy because I have seen firsthand how dangerous it can be if used improperly. As a lawyer I have been privileged to work on behalf of a large group of formerly polygamous women and children who have been severely wronged, who bravely escaped from terrifying places, and who are nobly fighting to make sure that no one else gets hurt. My first instinct was to try and figure out how the crime of polygamy could be prosecuted properly. Upon closer examination though, and after extensive research, I have come upon some realization that I consider truths. I share these ideas in the book, but briefly they are the following:

I believe that at its core polygamy is an amoral tool and that the people who practice it are either good or bad; I believe that the harms we have come to associate with plural marriage are not intrinsic to the practice but rather arise from a combination of (a) bad actors who should be prosecuted for other evil crimes, and (b) an unregulated system that makes prosecution very difficult.

I think that regardless of what anyone may or may not want to happen, from a practical perspective prosecuting polygamy has not and will not lead to better safety for women and children. As the failed raids on the Short Creek and the Yearning for Zion compound demonstrate, all such attempts do is drive communities deeper into shadow and make cooperation that much more difficult.²⁵ Public officials have openly stated that they will no longer try to prosecute polygamy, and so we need to find a better route if we want to protect potentially endangered people.²⁶

At the same time, polygamy has been making something of a comeback in both the academy and the public eye. The American Civil Liberties Union (ACLU) advocates the decriminalization of the practice,²⁷ while some high-profile legal academics, including Laurence Tribe and Sanford Levinson, agree that there might be a constitutional right to plural marriage.²⁸ Richard Posner thinks that polygamy could actually benefit women by widening their range of choices,²⁹ and might not even be that uncommon if we went ahead and legalized it.³⁰ The fact is that some people could be happy in a multispouse relationship, or at least happier than they would be in a monogamous one or alone. When it comes to the legal recognition of plural marriage then, the fundamental question is whether a restriction on the right to choose a particular partner is sufficiently justified to override a strong presumption in favor of letting adults make their own decisions about how they want to live and whom they want to marry. Such a justification would have to prove that plural marriage, unlike other forms of marriage that already receive legal recognition, directly harms or endangers either the participants or a third party.

Over the past decade there have been no less than seven television series about the practice of plural marriage, many of which purposely portray it as the harmless way of life it could potentially be. Recently, a federal judge in Utah struck down part of the state’s antipolygamy law as unconstitutional,³¹ although he kept the ban on possessing more than one marriage license at a time. Fans of the Sister Wives reality TV stars, who filed the lawsuit that gave rise to the decision, are rejoicing in the news. Outside the United States, countries such as Kenya are decriminalizing, and Central Asian countries are seeing a distinct rise in the practice. We live in a highly globalized world, and as the ever-increasingly multicultural United States continues to look abroad, especially at Asia, the question of polygamy will only become more and more relevant. Polygamy is recognized in nearly fifty countries worldwide, and to think that a family practice with that much traction and history will not make its way into the United States sooner rather than later is, I think, naive. As it turns out, polygamy is in fact already here and is only likely to grow as an American practice.³²

And so with all of these various factors at play, I believe that thought is shifting again, here in the United States.

In 2013, when the Supreme Court struck down the federal definition of marriage in U.S. v. Windsor—opening the door to federal recognition of same-sex marriage—it also set the stage for new discussions about plural marriage. The Defense of Marriage Act (DOMA) had defined marriage as a legal union between one man and one woman as husband and wife. While DOMA obviously prohibited same-sex marriage (by requiring that a marital unit consist of a man and a woman), it had also enshrined the prohibition against polygamy, by requiring that such a union be between only one man and one woman. Even before Windsor, the Supreme Court had declared morals-based legislation invalid, renewing interest in polygamy. But in calling DOMA definitions unconstitutionally restrictive, the court, perhaps unwittingly, also struck down the federal numerical limitation in a marriage, immediately reopening the possibility of plural marriage at the state level.

The real beauty of Windsor though is that it not only opened the door for polygamy but also established a desperately needed framework for how to deal with it. Same-sex relationships that were only decriminalized in earlier cases were finally given legal recognition and granted benefits in Windsor. If there is to be a change in status quo—if we as a nation decide that polygamy cannot or should not be illegal because (a) it is not practically helpful, (b) adults have the right to decide whom they want to marry, and (c) there are better ways to protect women and children—then going straight from criminalization to full recognition, complete with legal benefits, not only is the correct legal answer but also will be necessary to assuage public fears. Decriminalizing polygamy would simply mean telling polygamists that they can officially do what they want without any fear of state action or governance. Given the current tense relationship between some polygamous communities and the state, decriminalization would mean removing the one trump card the state holds if it ever needs an excuse to investigate potential harms. Polygamous families would never have to interact with any state officials, which would only make abuses even harder to catch. But following Windsor’s lead and allowing these relationships to be recognized and regulated could instead bring them into the light.³³

As scholars have already noted³⁴ recognition would enable law enforcement to crack down on abuse; it would require state contact and allow an independent civil authority—a town clerk or justice of the peace—to express concerns about and even refuse to approve an inappropriate marriage. It would help prosecutors overcome the evidentiary hurdles inherent in prosecuting related crimes. Unlike decriminalization, legalizing and regulating polygamy cuts to the heart of policy concerns.³⁵ Morals-based legislation has been unconstitutional since 2003’s Lawrence v. Texas, but the practical policy solution—awarding those formerly banned relationships rights, and with those rights accompanying duties and responsibilities, which will be monitored—was only handed down last summer.³⁶ A clean-cut version of American polygamy does not currently exist, but under Windsor, perhaps we could actually build it.³⁷

The lesson that I take from Jewish polygamy then is not that polygamy is good simply because the Bible allows it, and not that polygamy is bad simply because Jewish law, operating with its own set of assumptions and ideals about what a marriage could and should look like, disallowed it. Instead, the lesson is that in every generation and in every society, the concept of plural marriage needs to be revisited, carefully, to make sure that it lines up with the particular laws and values of a given time and place. The ensuing chapters intend to do just that for modern-day America: line up the laws and values of the land in an attempt to revisit the issue of plural marriage. My conclusion in this work is that in today’s day and age, in terms of respecting the rights of its citizens and protecting the dignity of all, it might be in the best interests of the United States of America to legalize and regulate plural marriage. And at the very least it is worth thinking about.

There are of course ways to do this slowly. One could argue that, as a first step, polygamy should only be allowed when there are special extenuating circumstances, for instance, a sincerely held religious belief, or perhaps a situation in which nonrecognition of a family would be unjust, as is often the case in immigration or when dealing with foreign marriages.³⁸ Other westernized countries, like Britain and Canada, regularly do this, and some U.S. courts have followed suit in the past, albeit sporadically.³⁹ In my opinion however, being that eventually I come to the same conclusion in all cases, it is more helpful to deal with the issue thoroughly and at once, rather than in piecemeal fashion. At the end of the day everyone is entitled to equal protection and due process, and so I do not think it makes sense to privilege some constitutional rights before others instead of addressing them all at the same time and at the constitutional level.

Of course, I may be wrong about polygamy, and the court in Bountiful, British Columbia, may be right, that the practice is simply too dangerous for today’s day and age, and there is no choice but outright prohibition.⁴⁰ I still think that this book is necessary for moving that conversation forward, because (a) the harms alleged have not been proven, and that is not enough in American jurisprudence; and (b) because the majority of this work only deals with the simple questions of whether or not polygamy could be legalized and administered. As I will demonstrate, I believe that the answer is a resounding yes, without too much difficulty, and so even for those who oppose plural marriage and think that it is simply too dangerous, it is important that the arguments take place on the right plane, because attempts to simply dismiss polygamy as legally or administratively impossible are doomed to fail. Nowadays, if a person wants to argue about plural marriage legalization, the right question that he or she needs to be asking is not whether or not we can but whether or not we should in fact legalize, as a matter of public policy and risk aversion, and not as a question of strict legal or administrative feasibility.

The book is divided into six parts. The first chapter lays out the issues behind the current push for plural marriage in the United States, from both a sociological and a legal perspective. It also provides a defense for the institution of marriage, arguing that marriage, and marriage alone—as opposed to marriage-like institutions, such as civil unions—provides certain tangible benefits to its members. Chief among these benefits is a shared sense of identity that reflects a common set of values and generates expectations, both within the marriage and to outsiders. As part of the fundamental right we call marriage, these privileges should not be denied to anyone who wants them.

The second chapter argues that the institution of marriage can be unbundled—it can give up certain nonessential parts of its generalized understanding without losing its special status and without sacrificing the goods that it provides. Utilizing contract theory, the development of family law—especially in the areas of prenuptial and postnuptial agreements, and the history of the gay rights movement—demonstrates that the law has already admitted the possibility that certain parts of marriage as it has traditionally been understood in America⁴¹ might in fact be nonessential and subject to some change. A quick look at world history and even demographics today demonstrates that the numerosity requirement in marriage might also be contextual rather than imperialistic.⁴² The chapter does, however, make the point that the term marriage itself is an essential part of the institution because it carries more than any other term (at least for the time being) the cultural understanding associated with the values and expectations we are trying to cultivate.

The third chapter takes a hard look at American society and culture. An estimated 50,000 to 150,000 polygamous families already live in America: the well-publicized Muslims and Mormons; the African and Vietnamese immigrants keeping up their cultural ways; modern feminists looking for a better work/life balance; family traditionalists, who maintain that any marriage is better than none in the fight against the rising tide of single parents, cohabitation, and divorce; and the more than 500,000 others who identify as polyamorous, and engage in ethical nonmonogamy.⁴³ Thus, the idea that we are an entirely monogamous nation is disproved.⁴⁴ Culturally speaking, experts say that 30 to 60 percent of married people in the United States will commit adultery over the course of their exclusive, dyadic relationships, producing a form of de facto polygamy. Thousands of others will actually marry a second, sometimes even a third, person, albeit after a legal divorce from their original spouse. The rise of no-fault divorce has made polygamy on the installment plan more common for adults of all ages. Whether it’s de facto polygamy in the form of adultery or serial polygamy with no-fault divorce, we as Americans have already broken the sanctity of the couple. This chapter argues that, while some believe that legalized plural marriage could lead to