Polygamy: Intimacy, Default Rules, and Bargaining for Equality

Adrienne Davis | 110 Columbia Law Review 1955 (2010)

Most legal scholarship has approached polygamy in one of two ways. Some have framed it as a constitutional question of religious or privacy rights; others have debated decriminalization based on the contested effects of polygamy on matters ranging from women’s subordination to democracy. This Article shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. The Article begins by describing the diverse stakeholders and critics in the polygamy debate, including not only religious fundamentalists but also black nationalists and radical feminists. Next, the Article refutes the analogy between gay marriage and polygamy, disputing it as a miscue from what is legally distinctive about polygamy, its multiplicity. Unlike gay marriage, which is typically envisioned to adhere to a two-person marital model, marital multiplicity both increases the costs of intimate negotiation and complicates it in several ways, including raising questions about how power is bargained for and distributed in marriage. The Article next contends that other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, ongoing entrances and exits, and life-defining economic and personal stakes. It turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The Article concludes by showing how theorizing love and commitment beyond heterodyadic marriage sheds light on the debates over recognition, abolition, and privatization of intimate relationships. more …