Three years ago Texas authorities caused a sensation in the United States with a raid on the polygamous Mormon
sect living at Yearning For Zion Ranch, during which 401 children were taken
into state custody. The pretext for the crackdown was not so much polygamy, although
it is a crime in Texas, but forced sex with under-age girls taken as wives by
older men. In other words, the wellbeing of children was the main issue.

Community leader Warren Jeffs, already in trouble before the
raid, is currently in jail awaiting
trial in Texas on sexual assault and bigamy charges. If he sits tight a bit
longer, though, the bigamy charge may collapse; with same-sex marriage
apparently in the bag, polygamy is looking like the next big thing in the
United States -- and no-one seems to care what happens to the kids.

While Jeffs has been cooling his heels in clink, television networks
have promoted his cause by rolling out shows such as Big Love and Sister Wives. The
Browns of Sister Wives, all four of
them, have talked
about how happy they are with their choice and how well adjusted their 16 children
are, and how the children are carefully educated about choice and consequences,
and how there are no underage or arranged marriages. Fictional versions of the
lifestyle add to the gloss by leaving out what one script writer calls the
“yuck factor”.

Now that the small screen has demystified and
sentimentalised polygamy it is the turn of professors and judges to legitimise
it. And what better time to do so than in the wake of the latest green light
for same-sex marriage? Straight after New York conferred the right to marry on
homosexuals, Ralph Richard Banks, a Stanford law school professor predicted that polygamy and incest must now be legalised: “Over time, our moral
assessments of these practices will shift, just as they have with interracial
marriage and same sex marriage.”

Right on cue, in mid-July, the patriarch of the Brown
family, Kody Brown, filed a challenge to Utah’s law against polygamy. His lead
counsel, Jonathan Turley, a law professor at George Washington University, wrote in the New York Times that the suit is based not on any analogy with same-sex marriage but on the Supreme Court’s 2003
decision in Lawrence v. Texas, that states could not use the criminal code
against what two consenting adults -- in that case, homosexuals -- do in
private. Privacy is the issue, he insists, not what society finds acceptable.

However, if it comes to acceptability, Turley has an answer ready
for critics: society already accepts other kinds of plural relationships. He
says: “It is widely accepted that a person can have multiple partners and have
children with such partners. But the minute that person expresses a spiritual
commitment and ‘cohabits’ with those partners, it is considered a crime.”

We are going to hear this argument a lot more in the new
battle for the rights of polygamists. It has been used also by another law
professor, Adrienne D. Davis of Washington University at St Louis, in a 92-page article in the Columbia Law Review of December 2010. With interesting timing, the
university sent out a press
release about the article earlier this month.

But Davis, like Turley, prefers not to hitch her wagon to
the same-sex marriage star. She says it’s a red herring in the polygamy debate
since same-sex marriage is concerned with the couple relationship and polygamy
with plural relationships. In fact she is not really interested in marriage at
all (“I am no particular fan of the institution of marriage”); a power
feminist, she talks, rather, of “intimate relationships” and rules for “bargaining
for equality” within them.

Polygamy, with its “multiple partners, ongoing entrances and
exits, and life-defining economic and personal stakes”, presents a special
challenge in this regard, one which family law could hardly cope with, Davis
admits. But, no problem; it turns out that commercial partnership law has a “robust
set of off-the-rack rules” that could be adapted to arbitrate the disputes of
polygamists. If the power relationships can be regulated -- and she believes
they can (lots of work for lawyers there) -- there would be no reason to
withhold social recognition from polygamy.

In social revolutions like this numbers are always useful: a
million backstreet abortions; tens of thousands of gay couples already enjoying
family bliss but without the blessing of marriage; and now, “50,000 to 100,000”
polygamists minding their own business but persecuted for merely moral reasons.
(A recent Gallup
poll shows that 86 per cent of Americans consider polygamy immoral.) The
implication is that what so many people are doing, with little evident harm,
must really be harmless.

Many feminists, it’s true, are unhappy about the subjugation
of women in communities like Yearning For Zion. Then there’s the problem of
young girls becoming extra wives, and there have been disturbing stories about what
happens to “spare” boys once they reach puberty. Some, simply expelled from
their compounds, have been found living rough around rural towns in Utah and
Arizona.

Which brings us to the central question about polygamy, or
any other variation on the married mother and father family: what about the
kids? Is this form of adult intimacy good for them?

One can almost hear Professor Davis sigh as she reluctantly
addresses this issue in a section of her essay headed “Children and Other
‘Externalities’…”. “Part of me wants to radically resist the notion that
intimacy cannot be theorised without attention to children,” she protests.

Still, she does take a sideways glance at the children and
comes up with the same argument as Turley: we already have de facto polygamy, in both the unmarried (single mothers and
nomadic fathers) form and the married (divorced and remarried parents) or
serial form, and family law accommodates those. Not only that, but the law is developing
norms to deal with claims arising from other multi-parent situations: open
adoption, grandparents raising children, and “reprotech families” formed by both
heterosexual and same-sex couples using donor gametes and surrogate mothers. Why
not add polygamy to the “marriage pantheon”?

Well, yes, marital culture is in a mess, but we know that the
absence or divided affections of fathers resulting from transient partnerships
and divorce create serious risks for children and much actual misery. And we
have some idea from the grown children of donor daddies of the problems being
generated by the reprotech variants of family life. So, again, what about the
kids? Why expand the opportunities to generate emotional and economic problems
for them?

All Davis will say is that it is “unclear that polygamy
generates more costs for children than the standard alternatives” (to a married
mother and father). That’s it: like, “Since when did we start worrying about
children?”

She does have a point (I have made
it myself), although it is slightly chilling that a woman, in particular,
would make it with such detachment. Adults do already make a lot of trouble for their
children. But these are pathologies we should be trying to fix, not spread more
widely by recognising another pathway to family chaos on the basis that “it
can’t be any worse” than the others.

It may be true that the case for social recognition, or at
least tolerance, of polygamy is different to the case for same-sex marriage and
the claim to same-sex parenthood that goes with it. But they have one thing in
common: they both find their place in a decaying marriage/sexual culture where
adult desires increasingly trump the needs and rights of children.

Three years after the Yearning For Zion raid, is the welfare of children no longer an issue in the adult scramble for sexual
rights?

Carolyn Moynihan is
deputy editor of MercatorNet.