The Fundamental Right to Polygynous Marriage

Authors

Ronald C. Den Otter

Abstract

This Article is about why the argument in favor of a constitutional right to polygynous marriage, predicated on the importance of personal autonomy, is considerably stronger than the sex equality arguments against it. For the most part, legal scholars have arrived late on the scene, not treating the topic with the kind of care that it deserves. Instead of relying upon equal protection analysis, I shall engage in a fundamental rights critique of opposition to polygynous marriage. In doing so, I will discuss two considerations that remain central to such analysis: the value of autonomy (understood as personal choice in important life decisions) and the strength of the state’s interest in protecting adult women from sex inegalitarian marriages. As I shall argue, the fundamental right to marriage extends to polygynous marital arrangements. That is the case because it is imperative to let adult women make their own decisions about how they want to live, including deciding whom, if anyone, to marry. As it turns out, the state’s interest in fostering sex equality in marriage is weak as well; such marriage itself is unlikely to cause sex inequality. In fact, the lack of full legal recognition can make a bad situation worse, whereas legal reform could mitigate the sex inequality of polygynous marriage, rendering it tolerable.

This Article is divided into the following sections. First, I summarize the scholarly debate over polygyny and elaborate on why liberals continue to express ambivalence towards the phenomenon by drawing upon John Stuart Mill’s discussion of Mormon polygyny in On Liberty. Then, I articulate the dilemma that liberals face when they are asked to countenance a practice that they find morally abhorrent and explain why some of them reject full legal recognition of polygyny. I spell out the possible slippery slope between legal recognition of same-sex and polygynous marriage and show how marriage cases in the twentieth century, including Obergefell, have changed the debate about whether numerical restrictions are constitutional. Second, I describe how the anti-polygynist position is unacceptably paternalistic, failing to respect the autonomy of competent adult women to make their own most personal choices about how to live. Third, I review the standard anti-polygyny position, scrutinizing the claim that polygyny is too unequal for women to warrant the equal legal status of marriage. In doing so, I sketch the changing demographics of present-day polygyny in the United States and highlight its more egalitarian forms. Fourth, I respond to this anti-polygyny argument by showing that most polygyny is not as inegalitarian as its critics allege it to be, notwithstanding its structure, if it were regulated like a monogamous marriage. Polygyny could be modified to lessen the adverse impact of sex inequality on women, by legally eliminating its hub and spokes structure. Last, I address the concern that polygynous marriages would be too difficult to administer.

Volume

26

Issue

2

Start Page

685

Faculty Editor

Steven Smith & Maimon Schwarzschild

Recommended Citation

Den Otter, Ronald C. (2025) "The Fundamental Right to Polygynous Marriage," The Journal of Contemporary Legal Issues: Vol. 26: Iss. 2, Article 11.
Available at: https://digital.sandiego.edu/jcli/vol26/iss2/11