Tolerance and Multiple Marriage

I was reading last night through the leading commentary on Iraq's Personal Status Law, written decades ago by Dr. Ahmed Al Kubaisi in connection with an upcoming casebook on Islamic Law that I am coauthoring with Mark Cammack of Southwestern Law School.  Therein, I found a most fascinating passage that I think reflects particular biases that are relevant in contemporary American discourse, specifically on the question of same sex marriage.

In the passage, Kubaisi is objecting to a provision of Iraq's Personal Status Code that grants to the judge the power to permit or deny a multiple marriage based on specified crtieriaSpecifically, Kubaisi says:

Then many families will resent the judiciary interfering in their most private of affairs.  Perhaps the wife has a problem that leads the husband to take another wife.  Yet he is fair, and capable of supporting more than one.  But he would disdain the fact that he or his wife would become the subject of inspection or investigation.  So he accepts deprivation and oppression of his self to remain with his sole wife without purpose or profit, so induced rather than to go to the court and to disclose the secrets of his house.  Hence the limitation of mulitple [marriages] in this manner or another results in interference of the judiciary in the right to contract, and the destruction of the human will of the man and the woman alike.
Now there is some implicit sexism in some of this, and I will return to that shortly, but I want to leave it aside for now, for the passage could well stand without it.  For now, render the example that of a woman who wishes to take a second husband if you like.  The point here is that Dr. Kubaisi is outraged by the idea that the state would dare to tell consenting adults who wish to form a multiple union that they are not permitted to do so unless they undertake some form of rigorous inspection.  It is, to Dr. Kubaisi, a state restriction of a basic human freedom.

The connection to contemporary American debate is obvious enough.  Opponents of same sex marriage have seized upon this, but in reverse, given the very different American biases.    Aha, say Lindsey Graham and Rick Santorum.  So you say that same sex marriage must be permitted because to do otherwise would restrict the rights of loving and consenting adults?  Well what about plural marriage then?  Why are we restricting the rights of three consenting adults to do what they will?  What can justify such a thing? 

Let me pause for a moment and leave aside other comparisons made by same sex marriage opponents to bestiality and to child molestation, for which distinctions of category are easy, and to which objection as comparison to my mind justifiably takes the form of outrage.  Human beings can love animals, and vice versa.  The love isn't comparable to the love two humans have for one another I would strongly maintain.  And once we move into the rape of children, the matter devolves into offensive and despicable absurdity.

But not so with polygamy.  I don't imagine Dr. Kubaisi would disagree with Lindsey Graham, he'd say of course three people who love each other should be able to form a union together.  Tell him same sex marriage then, and he'll probably be about as flabbergasted as supporters of same sex marriage are when trying to distinguish polygamy.  Usually, what emerges among American liberals is the reverse--a reflexive bias against polygamy that is more stated than defended. 

Can you believe what Santorum said?  He said polygamy is the same as same sex marriage! How offensive to homosexuals! 
Or Jon Stewart deriding this as being a "slippery slope argument" which ends in bestiality.  All of this is based on an unspoken presumption, that somehow something is less legitimate about plural marriage than same sex marriage, and then less legitimate still are men and horses having sex.  Hence, the "slope," meaning first they ban M-1 tanks, then they ban assault weapons, then they ban steak knives and we can't eat steak anymore.  Each step follows from the last.  Reverse the presumption, and the result is quite different. Replace the word "homosexuals" with the word "polygamists" in the first sentence of this paragraph, and I am sure you have Dr. Kubaisi's view (i.e. comparison of the two is offensive to the polygamists, not the homosexuals).
For my own part, it's hard to see why one or the other is any greater or lesser an expression of human love, perhaps because I have my own cultural biases.  Like Dr. Kubaisi, I am a Muslim and an Iraqi and I have seen multiple unions, though admittedly in Iraq as a cultural matter there is a social stigma attached to them and they are deemed rather vulgar if legal, as marrying your first cousin would be in the United States.  Like Rachel Maddow, I'm an American, and I've seen those loving unions too.  I'm not at all interested in participating in either form of union myself, but I do wonder why we cannot tolerate both in our midst.  When I hear American liberals therefore assault multiple marriage and defend gay marriage (and assault those who equate them), what I hear is a defense of some forms of bigotry, and an well articulated attack on other forms.  As in, we're allowed to hate weirdos, but gays aren't weirdos, only polygamists are.  And stop calling homosexuals "queer", that's offensive.  It makes them sound like they're weird.  They're not.  It's the polygamists who are weird. All rather confounding to me as an expression of tolerance because of the unjustified limitations it imposes.

Having said that, some qualifications are in order.  First, the sexism.  I am certain that the late Dr. Kubaisi would feel quite differently about the freedom of contract as concerns multiple marriage if it was a woman who sought to marry two men.  I imagine that would be no less offensive to his sensibilities than same sex marriage, perhaps even more so.  And yet any distinction he makes based on the nature of men and women (I'm sure it would come down to that) could easily lead one to wonder precisely how strong Dr. Kubaisi's commitment to the "human freedoms" of men and women actually is. 

In any event, here we do have an important categorical distinction that is based on sensible moral differentiation.  We believe in equality of the genders, we do not believe in gender specific legislation, and hence we can immediately dismiss as not being remotely consistent with core American constitutional principles any sort of multiple marriage that is not equally granted to men and women.  As Mitt Romney says, what is sauce for the goose is sauce for the gander.  (If I might be permitted an aside, I barely understand this reference.  What is gander sauce?  And how does one even know the gender of the fowl they are consuming such they could even attempt a different sauce based on it? Very confusing.)

Connected to this, one might be able to argue that the ban on polygamy arises because of public interest concerns respecting the rights of women.  That is to say, even if we were to write a gender neutral multiple marriage law, the reality is that overwhelmingly, the arrangements will involve one man, with several women.  When we consider this, and its longer term social implications, we must give pause.  I'll admit that for a long time, until somewhat recently, I've held to this view. And to some extent I continue to do so in places like the Middle East, where the state is weak and the position of women more vulnerable.  I simply don't believe that many first wives in that situation consent to the second marriage, but they feel powerless to do anything, legal rights to deny or no.  Women might have influence to block the second marriage, in fact often they do, but because of social stigmas against polygamy, described above, or because their own male family members will intercede on their behalf, not because of a court requirement.  In this environment, much danger lurks in permissibility and it concerns me greatly, so much so I'd rather see no polygamy than tolerate consensual forms.

I'm not sure, however, that in the United States, this is necessarily a basis to prevent gender neutral consensual multiple marriage if we're going to start looking at these things as vindicating core principles of equality, as we do with same sex marriage.  Surely we can do other things to protect women that would be, to use the Supreme Court's phrasing, more "narrowly tailored" to advance the compelling state interest of protecting women from mistreatment or abuse than to prevent all multiple marriages.  I simply cannot see how one can deny, say, a third spouse a right to see a first spouse on the deathbed in the hospital because we are worried about other women in other unions being mistreated.  Or I no longer see it that way I suppose.  Or perhaps softer yet, can we at least have a conversation about it?

A final distinction is one of administrability.  Surely there must be limits on the numbers of people in a marital union or the entire matter will devolve into farce.  Surely some people deserve hospital rights that others don't and if one declares their entire village of 600 to be one big marital union, the system can no longer be administered because we cannot grant special hospital privileges to 600 people.  One could deal with this partly through a clear standards on what we mean by marriage involving a shared life together. One cannot really be having a shared life with that many other people, many of whom they may never even have seen or met or know their names.  But bright line rules are helpful, perhaps vital.

Again, however, there's no reason that two is a sensible bright line, it seems quite self evident that families share their lives together with more than two people in them.  Absurd to suggest to anyone in a family of five that they only love one or two of their fellow immediate family members.  So I suggest five members of a multiple marriage as presumptively valid, and perhaps 10 if shared life can be demonstrated. Hah, you say, five you derive from the Islamic rules permitting a man four wives, you've just adapted it to modernity.  True, I will concede, but pray tell, where does your number of two come from?

I suppose in the end I don't dispute that values in modern American society are "heteronormative" as it were.  But they are also "Christionormative" as well, and it's not clear to me why we can't talk at least about that too.



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  • 5/15/2013 2:54 PM Spalding wrote:
    Logically I follow you, but what is the point of marriage? People of same sex that love each other want the same legal rights as a man and a woman. While definitions of marriage may change legally (in the US), polygamy was made illegal years ago (perhaps not just because of Christian values, but financial reasons as well such as taxes). Remember, it can be said that the only religion that the US ever 'declared' war on was the Mormons.

    When it comes to religion and US state and federal laws, I'm for anything that keeps all religion out of the legal system.

    With the logic above, you would support 4 women married to each other, or how about 1 woman married to 4 men? Does 'modern' Sharia law support this? Doesn't it support the hanging of homosexuals?
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