Fenster writes:

I guess it was inevitable what with the legal OKs to gay marriage that polygamy would be back.  That’s not a slap at gay marriage, which I, like many, have come around to endorse.  It is a slap at the law getting ahead of itself, or too far ahead of popular opinion.  Law is one of those things that we are more or less required to view as a set of abstract principles governing human behavior, when the actual relationship between shifting values in a community and changes in the law is a shifty thing in itself.  We are supposed to remain blind to that dialectic for law to work its magic.  I guess I get that, but I still can’t help noting what is in front of my nose . . .

So here come the semi-apologists for polygamy.  At CNN, Mark Goldfeder argues that it may be time to give it a whirl.  He concedes that polygamy in practice can lead to abuse–of women, of children, of children pressed into service as women before their time.   So there is a bad polygamy, one that the state is right to condemn.  But who says there cannot be a good polygamy, one free of compulsion and child brides?  If that is possible, maybe it is our continued criminalization of the practice itself that is at fault.  Maybe, according to Goldfeder, if we decriminalized the practice, we might be able to allow for a non-offensive practice.

But Goldfeder goes further, suggesting that decriminalization is not enough.

If there is to be a change in status quo — if we as a nation decide that polygamy cannot or should not be illegal — then going straight from criminalization to full recognition is both the correct legal answer and necessary to assuage public fears.

That’s quite a jump–all the way from decriminalization to recognition.

It is true that decriminalization and recognition are separate things.  Even before recent changes allowing gay marriage, generally speaking it was not a criminal act for two individuals of the same sex to go through a ceremony purporting to be a marriage.  They could have a ceremony if they liked, and even go on to live happily thereafter together.  It was mostly a matter of non-recognition, and of officers of the State being unable to conduct a marriage ceremony in law.

But with polygamy, especially of the pesky, quietly semi-official Mormon variety, the practice is actually illegal.  Even if the ceremony is one-off, what seems to offend most is the way they live together after the fact.  Maybe this objection is just about abuse of women and children, but it could be that there are principled objections to the underlying concept.

To me, the most persuasive argument against gay marriage was a Burkean one.  One should respect traditions that have built up slowly over time.  Even if a tradition appears to violate an abstract principle, we live in a Darwinian universe in which in the end even abstract principles have to defend their worth in survival terms, and in that argument apparent past success counts for a lot.

I ended up rejecting that argument for two reasons.  First, people and cultures always live life going forward, and the tradition argument is just a betting strategy, one that has to be considered in light of other things.  Second, I had a hard time envisioning how gay marriage would negatively alter the fabric of our culture.  That does not mean it won’t–just that I get to make up my own mind, and was persuaded more by the Andrew Sullivan notion of virtually normal than by Chicken Little.

But I do not think the same thinking holds for polygamy.  Oddly, civilization has a lot more experience with polygamy than gay marriage, so the Burkean argument is weaker.  But having that experience also means we can better assess whether polygamy would not just affect the adherents’ life for the better, but would also affect the culture more broadly in ways they find objectionable.  I think that is the case, and so I think the broader public has a dog quite fairly in the hunt.

Polygamy still occupies a totally different space than gay marriage in our culture at the present.  The ground has shifted on the former, not the latter.  If I had problems with the law getting out in front on gay marriage–where things were definitely moving–I have an even harder time on polygamy.  To paraphrase Orwell (again), some things are so foolish that only an attorney could believe them, for no ordinary man could be such a fool.

Links

• Despite that it might seem like fun for the alphas, here is Roissy on why polygamy may be unstable and maladaptive.
• Are polygamy bans unconstitutional?