While many family advocacy groups in the United States have been working over time to fight against the legal institutionalization of same sex marriage another issue has slowly crept up. The US Supreme Court is currently deciding whether the ban on polygamy amounts to religious discrimination against those Mormons who see it as a religious duty.
Personally I find the concept of polygamy and bigamy unpalatable - instinct guides me towards the belief that marriage should be between two people exclusively. It is also clear to me that the prevalence of bigamy would have disastrous effects on society and on the institution of marriage as we know it. Clearly everything must be done to avoid taking the retrograde step towards the pervasiveness on bigamy. However, for us to keep it as a criminal act is counterintuitive.
Research shows that the legalization of bigamy does not result in the practice becoming widespread and in most counties where bigamy is legal monogamy is still the norm. In Muslim-majority Malaysia for example where bigamy is legal for Muslims only 1.4 percent of marriages are bigamous.
There is a lot of talk about the need to protect traditional marriage between one man and one woman. Yet since Biblical times marriage has been between a man and potentially more than one wife.
Even according to Judaism bigamy is not unequivocally forbidden. In fact it is a matter of contention whether the ban against bigamy imposed on Jews by the rabbis one thousand years ago has been renewed so that it is still in force today. Rabbinic authorities also disagree on whether the original ban was imposed out of practical concerns or because of religious reservations as well.
In any event, there are many legalized sexual practices in Western style democracies which religion prohibits as negative for society. It seems contradictory therefore that all types of perverse sex clubs that are clearly damaging to both the institution of marriage and to society are legal but bigamy is outlawed. At a time when many in our society are campaigning for legalized same sex civil unions it is peculiar that grown ups practicing consensual bigamy remains criminalized.
There is much evidence pointing to the fact that bigamous marriages are disadvantageous to women. However there is also evidence that bigamy suits some women.
We need to get it right. If the law has decriminalized homosexual activity and even institutionalized it in some places and the law tolerates many other types of alternative sexual practices then why continue to criminalize bigamy between consenting adults?
A democratic legislator and government by definition must tolerate rather than interfere with the personal lifestyle choices and religious practices of individuals unless it hurts innocents. As the US Supreme Court re-examines the law against bigamy they must take this into consideration.
Rabbi Levi Brackman is executive director of Judaism in the Foothills
and the author of numerous articles on a whole range of topics and issues, many of which can be found on his website