Can We Non-Criminalize Polygamy Without ‘Legalizing’ It?

Monica Potts writes that a Utah lawsuit alleging that the state’s anti-bigamy law is unconstitutional “is a nightmare for liberals and conservatives alike.” For conservatives, it’s clear. But what’s liberals’ problem? Well, we allegedly “fear that by basing his case on Lawrence, Brown gives fodder to conservatives who argued that gay marriage would open the door to polygamy.”

The more I think about this the more I think there’s actually less at stake than it first seems. Marriage is a special kind of legal category, one that has traditionally only been open to heterosexual couples. The demand for marriage equality is essentially the demand that that exact same legal status be open to gay couples. But it’s just not possible for polygamists to be granted “equality” in that sense. Marriage as a legal status is a relationship between two people. A state could create a legal status for more than two adults to form a household together, but it would certainly half to be a different kind of thing. But just because we might not want to create a legal polygamy category doesn’t mean that we need to ban polygamy. After all, there’s something just profoundly weird about the idea of making polygamy illegal. It’s not illegal to have an affair. It’s not illegal to have an open relationship. It’s not illegal to live in a house with more than one woman. Even in states that don’t recognize same sex marriages, it’s not illegal for a gay couple to have a marriage ceremony and start referring to themselves as married. Almost every possible set of household arrangements is legal, except for a person to refer to himself as “married” to more than one person simultaneously. Why do that? We could just…not do it without creating any recognized legal category for polygamists.