Reality TV show stars Brady Williams and his five wives in 2015

While the unmet demand for legal polygamy may not be huge, there are an estimated 50,000 polygamous families in the United States at the moment – mostly fundamentalist Mormons, Muslims, African-American Black Muslims and Hmongs from Vietnam and Laos. About 500,000 people live in situations which are described as “ethical non-monogamy”, a coy euphemism for polyamory.

There are certainly enough of them around to sue for legal recognition of their stigmatised status. And according to Mark Goldfeder, a legal academic at Emory Law School in Georgia, they can make a coherent and persuasive case. He has sketched out a map for legalisation in his recent book Legalizing Plural Marriage: the Next Frontier in Family Law.

It’s essential reading for all Australians in the upcoming plebiscite on same-sex marriage.

The all-but-universal cry from the same-sex marriage camp is that “the polygamy argument doesn't stand up to scrutiny”, in the words of American gay journalist Jonathan Rauch. Polygamy harms women, harms children and harms young men excluded from the marriage market. Because polygamy is poison for voters, supporters of gay marriage will do their best to dismiss it and ridicule it. But is this consistent with their own approach to traditional marriage? The argument for polygamy is remarkably similar to the argument for marriage for gays and lesbians -- except that it is the gays and lesbians who seem to be its staunchest opponents.  

Goldfeder believes when the US Supreme Court legalised same-sex marriage in the United States in Obergefell v. Hodges, it became obvious that the time for legalised polygamy could not be far away. He writes:

the idea is not really as radical as you might at first glance think; ... the legal arguments against it are surprisingly weak; and ... administratively , by drawing on extant legal resources to reform the edges of family law , it would not actually be that difficult to accommodate .

From a legal point of view, the landmark moment for American polygamy was US v Windsor, the 2013 case in which the Supreme Court struck down the Federal definition of marriage in the Defense of Marriage Act (DOMA) as “a legal union between one man and one woman as husband and wife”. DOMA had effectively banned both same-sex marriage and polygamy. But if marriage could be between a man and a man or a woman and a woman, why not between one man and two women?

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.

American society has been moving towards a more fluid definition of marriage for a long time. No-fault divorce made possible what Goldfeder describes as” polygamy on the instalment plan”. (He cites an astonishing statistic: every week 43,523 American couples divorce.) Once the sanctity of couple-marriage was broken, families began to emerge in all shapes and sizes: the blended families of divorced couples; co-habiting thruples; children with surrogate mothers, genetic mothers and caring mothers; children in open adoptions and so on.

Goldfeder calls this process the “unbundling” of marriage – picking and choosing amongst the elements of traditional marriage.

Without a clear definition of marriage, it is inevitable that polygamy will become a possibility. This was certainly the view of Chief Justice John Roberts in his dissent from Obergefell v. Hodges:

"It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

What substantial objections can there be to polygamy? Social revulsion is no longer enough for American courts. After another important case which came before the Supreme Court in 2003, Lawrence v Texas, morals-based legislation is no longer constitutional. In contemporary jurisprudence practices may only be proscribed if they cause demonstrable social harms.

And Goldfeder says that no harms are evident. As a lawyer he represented formerly polygamous women and children who had suffered in their relationships. But studying the bigger picture, he concluded that polygamy is largely benign.

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.

Because polygamy is currently illegal, there are no reliable statistics about how it affects participants. So the harms to women and children cited by same-sex marriage advocates are based on surmise, not evidence. In fact, Goldfeder cites a 15-year longitudinal study of polyamorous families by a sociologist, Elizabeth Sheff. It is a small study – only 22 children – but so are many studies of the children of same-sex couples. And she concludes that polyamorous families, in general, provide positive and enriching environments for children. Another study by Drake University law professor Maura Strassberg found that:

Children can benefit from having multiple loving parents who can offer not only more quality time but a greater range of interests and energy levels to match the child’s own unique and growing personality.

So if life in a polygamous family is at least no worse than life in more conventional families, are there any real obstacles to legalising polygamy?

Goldfeder says No: “legalizing plural marriage does not have to be difficult or ground-breaking. It can, in fact, be quite as easy as connecting a few dots, and cause no real disruption or trouble.” To make things easier, he sketches out a legal structure for polygamous marriages which would accommodate sticky issues like inheritance, divorce, taxation, healthcare directives, and so on.

In short, polygamy would tick all the boxes that same-sex marriage ticked, at least in the United States: it is not harmful, some people desperately want it; regulation is possible; it won’t weaken the traditional family; and it is a beautiful way of life. Goldfeder’s concluding remarks echo the gushing prose that Australians will hear in the up-coming campaign for gay marriage:

Plural marriage is not a sexual system. It is about multiplying everything that is good in a traditional dyadic marriage: love, responsibility , selflessness , and self-identification and expression given and received in a communal context that is well rooted and well understood.

Anyone interested in in life after legal same-sex marriage should read this closely-reasoned road map to polygamy. Who but Australian Marriage Equality could possibly object to it?

To put new life in a shop-worn slogan: if you don’t like plural marriage, don’t get plural married; don’t deprive others of a love your shrivelled, bigoted minds cannot understand.

Michael Cook is editor of MercatorNet.