I recently came across a case that brings up some really interesting questions about law, feminism, and relationships, and I’d like to share some of the issues with you. This is a case about marriage, sort of, but not same-sex marriage. It’s a case about a law that interferes with privacy in the bedroom, but it’s not a sodomy law. It’s a case that’s going to make the parade of horrible folks really, really nervous.
The case in question involves a polygamous family suing the state of Utah in hopes that an anti-bigamy law will be overturned. This family isn’t asking for the right to legal marriage, but rather that the state not interfere in their personal relationships by making an additional purported marriage or marriage-like relationship illegal when someone is already legally married.
When we think about privacy law, we think about rights to do things versus freedoms from government intervention. The latter are usually easier to claim, because they require no resources. The government just has to stay out. If it doesn’t have some compelling state interest that allows for intervention, then we end up with a result similar to Lawrence v. Texas (2003), which is the case being used as precedent here to challenge the Utah law.
Of course, feminist lawyers and legal activists tend to have some difficulties when polygamy gets involved, and understandably so. I’ve seen several recent feminist critiques of polygamy, pointing to its misogynist history and relationship with the Mormon church. But this isn’t the only context for polygamous or polyamorous relationships. In my opinion, the government has no business regulating relationships between consenting adults when those adults are making no claims to legal rights based on the relationship.
There is no one true feminist position when it comes to what relationships should be “allowed,” but I tend to believe that one of the most important tenets of feminism is the freedom to develop relationships in whatever way one chooses. There are many polyamorous feminists, just like there are many queer feminists, many religious feminists, many married feminists and unmarried feminists and child-free feminists and feminists with children. There are all sorts of way to create a family outside those that are legally recognized and supported. The lead counsel in this case has it right when he describes the irrational way we pick and choose among those family types to determine public policy and law.
Eventually, I hope that the legal recognition scheme for marriage will become more sensible, but until that point, I hope that cases like this one succeed. At the very least, adults should be able to form relationships in whatever way they choose, and cement those relationships with religious ceremonies, cohabitation, or whatever else they feel is appropriate. Utah is simply out of line.