The Polygamy Question

The Polygamy Question

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Overview

The practice of polygamy occupies a unique place in North American history and has had a profound effect on its legal and social development. The Polygamy Question explores the ways in which indigenous and immigrant polygamy have shaped the lives of individuals, communities, and the broader societies that have engaged with it. The book also considers how polygamy challenges our traditional notions of gender and marriage and how it might be effectively regulated to comport with contemporary notions of justice.

The contributors to this volume—scholars of law, anthropology, sociology, political science, economics, and religious studies—disentangle diverse forms of polygamy and polyamory practiced among a range of religious and national backgrounds including Mormon and Muslim. They chart the harms and benefits these models have on practicing women, children, and men, whether they are independent families or members of coherent religious groups. Contributors also address the complexities of evaluating this form of marriage and the ethical and legal issues surrounding regulation of the practice, including the pros and cons of legalization.

Plural marriage is the next frontier of North American marriage law and possibly the next civil rights battlefield. Students and scholars interested in polygamy, marriage, and family will find much of interest in The Polygamy Question.

Contributors include Kerry Abrams, Martha Bailey, Lori Beaman, Janet Bennion, Jonathan Cowden, Shoshana Grossbard, Melanie Heath, Debra Majeed, Rose McDermott, Sarah Song, and Maura Irene Strassberg.


Product Details

ISBN-13: 9780874219975
Publisher: Utah State University Press
Publication date: 03/01/2016
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 288
File size: 3 MB

About the Author

Janet Bennion is professor of anthropology at Lyndon State College in Vermont. She is the author of four previous books on polygamous societies including her most recent, Polygamy in Primetime.

Lisa Fishbayn Joffe is the associate director of the Hadassah-Brandeis Institute of Brandeis University, where she directs the Project on Gender, Culture, Religion and the Law.

Read an Excerpt

The Polygamy Question


By Janet Bennion, Lisa Fishbayn Joffe

University Press of Colorado

Copyright © 2016 University Press of Colorado
All rights reserved.
ISBN: 978-0-87421-997-5



CHAPTER 1

Polygamy in Nineteenth-Century America


SARAH SONG

This paper examines how critique of minority norms and practices, even by well-intentioned reformers, can divert attention from the majority culture's own inequalities, shielding them from criticism and perhaps even fueling discourses of cultural superiority within the dominant culture. Such a diversionary effect can be seen in the controversy over Mormon polygamy in nineteenth-century America as well as in contemporary debates over minority cultural practices, including arranged marriage and female circumcision within immigrant communities.

The movement against Mormon polygamy provides an early example of a minority group's demand for accommodation — in this case, a demand for immunity from prosecution, an exemption from generally applicable law — and the dominant culture's overwhelmingly negative response. As one legal historian put it, the federal government pursued the campaign against polygamy with "a zeal and concentration" that was "unequalled in the annals of federal law enforcement" (Linford 1964, 312, 585). Opponents of polygamy called for federal intervention to dismantle what was widely considered a deeply patriarchal practice. Some might look approvingly at the outcome of this case, pointing to it as a model for how liberal democratic states might deal with illiberal and nondemocratic groups. What they would miss, however, is not only how such intervention failed to improve the status of Mormon women but also how condemnation of polygamy helped divert attention from the majority culture's own patriarchal norms. The focus on polygamy helped shield Christian monogamy and the traditional gender roles associated with it from criticism. It also served as a useful tool in the government's assault on what was probably its bigger concern, the political power of the Mormon church.

In this paper, I examine the politics of the American antipolygamy movement to explore the intercultural dynamic of what I call diversion. Antipolygamy activists gave two main arguments against polygamy: that it violated Christian public morals and that it subordinated women. While antipolygamy activists expressed genuine concern for the plight of Mormon women in polygamous marriages, they did not connect their concern for these women with a broader concern for the status of women in all marriages, which is what leading woman's -rights activists Elizabeth Cady Stanton and Susan B. Anthony sought to do.


THE RISE AND FALL OF MORMON POLYGAMY

In 1830, Joseph Smith, a New York farmer, founded the Church of Jesus Christ of Latter-Day Saints. The Book of Mormon, as translated by Smith, described the Hebrew origins of Native Americans and established America as God's chosen land. In 1843 in Nauvoo, Illinois, Smith had a revelation mandating "plural marriage," but the revelation was not made public until 1852 after the Mormons had settled in Utah. While Mormon leaders began practicing plural marriage in Illinois, it was on the western frontier that the practice grew, offering a systematic alternative to Christian monogamy. Responding to what they perceived to be the increasing secularization of marriage in the dominant culture, Mormon leaders solemnized marriages without state involvement (Foster 1981, 135–36; Hardy 1992, 6). Public outrage against the practice grew. The Republican Party condemned the "twin relics of barbarism — polygamy and slavery" in its party platform of 1856 and asserted the sovereign power of Congress over the territories (Linford 1964, 312).

Efforts by Americans and by government officials to dismantle Mormon polygamy spanned from 1862 to 1890. In 1862, Congress criminalized bigamy in the territories (Morrill Anti-Bigamy Act). The law proved unenforceable since Utah did not register marriages and Mormon juries would not convict polygamists. In 1874, Congress followed up with the Poland Act, which transferred jurisdiction of criminal and civil cases from probate courts in the Utah Territory, whose judges were often Mormon bishops, to federal territorial courts and gave federal judges considerable power over selection of jurors (Poland Act). In 1879, the US Supreme Court upheld a bigamy conviction in Reynolds v. US, but the decision did not eliminate the practice since prosecutors could not easily prove plural marriage. Congress followed up in 1882 by changing the name of the offense described as "bigamy" to "polygamy," which made it easier to procure polygamy convictions by criminalizing "unlawful cohabitation." It also denied polygamists the right to vote and hold public office and required a man to swear he was not a polygamist and a woman to swear she was not married to one (Edmunds Act). Some Mormons who were denied the vote in the 1882 election because they refused to take the oath sued the registrar of ballots. Two years later, the US Supreme Court held that it was appropriate for Congress to make marital status "a condition of the elective franchise," adding that a sovereign power could legitimately "declare that no one but a married person shall be entitled to vote" (Murphy v. Ramsey).

In 1887, Congress stepped up the assault by repealing the incorporation of the Mormon church and directing the US attorney general to expropriate its property holdings over $50,000 (Edmunds-Tucker Act). The act also disenfranchised Mormon women, who had had the vote for seventeen years before that point. The Mormons resisted and continued to practice polygamy, but in 1889, the Supreme Court upheld Congress's power to dissolve and expropriate the church's property against the church's claim that it was a protected religious body. Finally, in 1890, Mormon president Wilford Woodruff issued a manifesto accepting the federal prohibition of polygamy and encouraged members to refrain from contracting any further polygamous marriages.


THE ANTIPOLYGAMY MOVEMENT AND THE DIVERSIONARY EFFECT

Why did American citizens, legislators, and judges in the nineteenth century deem polygamy to be intolerable? The leading arguments against polygamy were that it offended Protestant public morals and that it was deeply patriarchal. While patriarchal power was not unique to the polygamous form of marriage, citizens and government officials targeted it because it was seen to embody an extreme form of patriarchy inconsistent with democracy. If we examine the broader social and political context in which antipolygamy activism arose, however, we see that while motivated by a desire to improve the status of Mormon women, the antipolygamy movement was also fueled by a desire to protect traditional monogamous marriage and dismantle the political power of the Mormon church. The focus on polygamy served these latter goals well by shielding monogamy from feminist criticism and gathering support for the federal attack on the political power of the Mormon church.

The broader historical context in which antipolygamy arose was a period of increasing anxiety over sexual values, family structure, and the proper role of women. Social changes in the majority culture — the spread of prostitution, the rising incidence of divorce, and lax morality of the growing cities — stirred anxieties about the preservation of Christian-model monogamy. By the time the issue of polygamy arose on the national political stage, nineteenth-century women's-rights activists had already been unsettling prevailing gender norms. As the historian Michael Grossberg has shown, by the 1840s, family reformers, fearful of utopian experiments and the demands of women's-rights activists, diagnosed a "crisis of the family" and expressed "moral panic" around the issue of marriage reform (Grossberg 1985, 10, 83). The antipolygamy movement's persistent focus on the theme of sexual perversion allowed members of the majority culture to displace its anxieties about these social changes onto subversive minorities. In addition to its subversive sexual practices, Mormonism's association with lenient divorce laws and female enfranchisement fueled fears that all three were part of a plot to undermine the traditional American family and Christian civilization itself (Davis 1960, 214, 216; Gordon 2002, 52–54; Smith 1997, 388).

Polygamy challenged the Christian concept of marital unity and the related common-law concept of coverture. In the eyes of the law, the husband and wife were one legal person represented by the husband, with the legal existence of the wife "covered" by his authority. According to the preeminent expert on common law, William Blackstone, a woman's legal identity was subsumed by her husband's upon marriage. What helped soften the image of the patriarchal nature of monogamy, in contrast to polygamy, was the rising ideology of romantic conjugal love, premised on consent and focused on one person. The metaphor of "one flesh" was recast as spiritual union of the couple based on mutual love and consent, offering a gentler version of coverture (Gordon 2002, 67–68).

The patriarchal nature of polygamy was the focus of the Reynolds case. The court held that the establishment and free exercise clauses did not protect local difference in domestic relations. Writing for the majority, Chief Justice Morrison Waite recognized polygamy as a religious doctrine, but he argued that the First Amendment protection of religious freedom extended to belief, not action. In justifying government restrictions on religious action, he did not address Mormon arguments that highlighted questions of jurisdiction and the powers of Congress over the territories, focusing instead on questions of sexual behavior and the connection between marriage structure and political structure. Chief Justice Waite expressed concern for the "pure-minded women" who were the "innocent victims of this delusion" and argued for upholding Congress's proscription on polygamy on the grounds that it "leads to the patriarchal principle ... which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy." Such condemnation of patriarchy seems disingenuous insofar as nineteenth -century opponents of polygamy neither challenged patriarchal power within monogamy nor advocated the equality of women outside marriage. Yet, the court was genuinely concerned with the patriarchal nature of polygamy: Mormon life was seen to embody patriarchy of a nature and degree unmatched by monogamy (Rosenblum 1997, 77). Such extreme patriarchy was seen to be inconsistent with democracy. Considered against notions of romantic conjugal love that (at least in theory) promised marital unions based on consent and mutual love, polygamy was truly a form of bondage.

The court cast the conflict as between a secular state and religion and affirmed the state's civil interest in preserving monogamy. The case for the civil interest in marriage was based on the widely accepted view that marriage structure was intimately connected with political order: "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests." To buttress his claim about the state's civil interest in protecting monogamy, Chief Justice Waite drew on dominant ideas in the political thinking of his day — in particular, the claim that monogamy fostered democracy, whereas polygamy led ineluctably to despotism.

The association between monogamy and freedom, on the one hand, and polygamy and despotism, on the other, can be traced at least as far back as Montesquieu's idea that "domestic government" shaped "political government" (Montesquieu 1989, 270, 316). He also made the connection between family and political order in his 1728 epistolary novel, Persian Letters. Although Montesquieu's target had been the despotic elements of the French government and not non-Western cultures, his work initiated the Enlightenment association of polygamy with despotism. The harem signified coercion and despotism, whereas monogamy connoted consent and political liberty. The leading political and legal philosophers of the early-American republic contrasted monogamy with polygamy in order to illustrate the superiority of Christian morality over "oriental despotism." For example, William Paley's (1785) The Principles of Moral and Political Philosophy, which became the most widely read college text on the subject in the first half of the nineteenth century, acclaimed the social benefits of monogamous marriage. In contrast, polygamy, he argued, produced the evils of political distrust as well as the abasement of women. Such views linking monogamy with public order were accepted and developed by the jurist James Wilson in the 1790s and by leading antebellum legal thinkers Chancellor James Kent and Supreme Court Justice Joseph Story (Cott 2000, 22–23).

Chief Justice Waite followed in this tradition of associating polygamy with patriarchy and despotism, buttressing this claim with widespread Christian revulsion against polygamy. He combined moral revulsion with racial revulsion by drawing upon the work of Francis Lieber, a German émigré who had become one of America's most influential political scientists (Reynolds v. US). Lieber hailed monogamy as the centerpiece of white Christian civilization. While Justice Waite did not go as far as Lieber in racializing polygamy, he did follow Lieber in mapping polygamy onto non-Christian and non-Western parts of the world: "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people" (Reynolds v. US; see also Gordon 2002, 142; Rosenblum 1997, 75).

The Reynolds court reflected the antipolygamy discourse of the 1870s and 1880s, which associated polygamy with non-White and non-European peoples. Americans commonly linked polygamy to places deemed barbarous, including the "Incas of Peru," "Mohammedan countries," or "the Barbary states" (Cott 2000, 116–17). The linkage of monogamy with European culture and Whiteness had begun earlier in the discourse of Christian missionaries. Upon their return from foreign missions, Protestant missionaries supplied America with descriptions of "heathen" societies, such as India and China. Women in these societies were depicted as slaves, degraded by practices such as seraglio, polygamy, and sati. In contrast, American women were portrayed as having been emancipated by Christianity (Brumberg 1982, 347–71). Protestant women also organized home missions and benevolent societies to save degraded groups in America, including Native Americans, Roman Catholics, and Mormons (Iversen 1997, 104, 133–57). Antipolygamists associated Mormon polygamy with Turkish harems, and anti-Mormon fiction borrowed from a popular book of the Victorian era, The Lustful Turk (1828) (Foster 1993, 115–32). In addition to missionary discourse, the experiences of European imperialism and theories of evolution also contributed to the discourse of "civilization," which suggested a linear path of progress from barbarism to civilization with white Europeans and Americans in the lead. The Reynolds court both drew upon and reinforced this discourse of racial and cultural superiority of whites over others, casting the American-born Mormon religion as foreign and "Other."

By using rhetorical questions and analogizing polygamy with human sacrifice and the Hindu tradition of sati, the court implied that no reasonable individual could contest the ban on polygamy. As Chief Justice Waite put it,

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile [sic] of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed."


The court saw the deeply patriarchal nature of polygamy — a monstrous practice on par with human sacrifice — as inconsistent with democratic political life, whereas monogamy was viewed as indispensable for civilized society and republican government.


(Continues...)

Excerpted from The Polygamy Question by Janet Bennion, Lisa Fishbayn Joffe. Copyright © 2016 University Press of Colorado. Excerpted by permission of University Press of Colorado.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Contents Introduction - Janet Bennion and Lisa Fishbayn Joffe Section I: Identifying the Harms and Benefits of Polygamy 1. Polygamy in Nineteenth-Century America - Sarah Song 2. Opposing Polygamy: A Matter of Equality or Patriarchy? - Lori G. Beaman 3. The Variable Impact of Mormon Polygyny on Women and Children - Janet Bennion 4. Ethics of Sisterhood: African American Muslim Women and Polygyny - Debra Majeed 5. An Economist’s Perspective on Polygyny - Shoshana Grossbard 6. The Effect of Polygyny on Women, Children, and the State - Rose McDermott and Jonathan Cowden Section II: Regulating Polygamy 7. Testing the Limits of Religious Freedom: The Case of Polygamy’s Criminalization in Canada - Melanie Heath 8. Distinguishing Polygyny and Polyfidelity under the Criminal Law - Maura Irene Strassberg 9. Polygamy Today: A Case for Qualified Recognition - Sarah Song 10. Should Polygamy Be a Crime? - Martha Bailey 11. (Mis)recognizing Polygamy - Kerry Abrams Contributors Index

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