Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as intimacy liberty, particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay 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. It argues that the gay marriage analogy, invoked on both the left and the right, is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity. Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy’s distinctive feature lies not in the spouses’ gender (as is the case for same-sex couples marriage) but rather in its departures from the two-person marital model. Polygamy’s defining feature, marital multiplicity, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts. Hence, this paper approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and, forgive the pun, the problems it engenders. No one, including others who have considered polygamy from a bargaining perspective such as Gary Becker and Richard Posner, has confronted polygamy as a regulatory matter, instead assuming it is merely dyadic marriage multiplied. Is the law up to regulating marital multiplicity? This Essay contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. The Essay contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy’s marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a map, but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations