Hide Your Kids, Hide Your Wives, Hide Your Beds: Marriage, law, and changing social norms in the United States

As I remember it, somewhere around February or March of my senior year of college, I had to pack up the contents of my room, hide my bed, and abandon my house, staying a few nights at a time with sympathetic friends. This lasted for a few weeks. I hadn’t become estranged from my housemates; I was still in good academic standing—no one had kicked me out. Instead, the city of Williamsburg, Virginia had targeted the house I and four of my friends lived in for inspection. The city allowed the examination of residential properties in ‘blighted’ parts of town in the year following a change in leased, residential tenants. The inspector kept scheduling and then cancelling, keeping us all on our toes, and keeping me peripatetic. We weren’t sure when they were coming; and I wasn’t sure where I was sleeping.

For anyone who has visited the College of William and Mary, and Williamsburg more generally, to describe a neighborhood across the street from the quiet side of campus, away from bars and restaurants, as ‘blighted’ stretches even the most promiscuous notions of small-town officiousness. We students were well aware of all of this. We knew that what the town was really doing was enforcing what everyone called a ‘brothel’ law, which allowed no more than three unrelated people to live in a residential unit. We, collectively, were a nuisance to the town.

When the inspector ultimately did come by, our ruse passed muster and we were only cited for a tire we hadn’t noticed that a previous tenant had left deep in a hedge and some chipping paint on a few eaves, then given a follow up inspection in a few months’ time to ensure compliance. And so I moved back in, illegally I suppose, and finished up college.

I mention all this, years on from my undergraduate education, seemingly at some remove from the subject at hand, because it illustrates the way sexual mores (‘brothel’ laws, remember!), home-making, and contests over who is allowed to live where and in what manner and in what social arrangement, are all intertwined. Questions about housing, state regulation of private lives, and the geographic pattern these lives take all run in and out of each other as sexual mores seem to have shifted and perhaps relaxed, and American legislatures, courts, and families have struggled to understand what all of this means for how people should lead their lives, with ripple effects extending even to a sleepy Southern college town.

The women’s and queer liberation movements have seen dramatic, though uneven, shifts in how Americans and their laws register gender, sexuality, family life, and the morality and rules that go with all of this. There is some sense, too, that an ever-widening public is finally aware of the possible variety in sexual desire and family organization and the impoverished assumption that everyone is naturally or perhaps most evolvedly heterosexual, monogamous, and baby-making. In one way or another, all three of the books here reviewed document and reflect on these shifting mores and laws, offering a riotous, patchwork account of sex, love, and law in the contemporary United States.

Deborah L. Rhode’s Infidelity and the Law, is by far the most engaging of the bunch. She sets as her goal clearly noting that law, “is one of the best arenas in which to study the evolution of moral norms…The aim [of the book] is to enhance our understanding of the evolution of the legal standards and social attitudes concerning adultery and to develop more informed public policies” (2016:1). Towards the bottom of the page, Rhodes says, “In essence, the book argues that the United States should repeal its civil and criminal penalties for adultery [because] these penalties are now infrequently and inconsistently enforced, and they ill serve societal values” (2016:1). To make this point Rhodes documents the history of adultery laws in England and the United States, explains the contemporary potpourri of state-level legal practice dealing with adultery and marriage, and then looks at adultery in the context of the American Military, American politics, and in a cross-national comparative lens. The story in all places and everywhere is that, again adultery laws are capriciously enforced, don’t match up with contemporary mores, and are, consequentially, at best a misallocation of the criminal justice system, and at worst a deeply hypocritical moral exercise of state power. Ultimately, the notion underlying all of these arguments, which I found deeply persuasive, was that law and morality should be reasonable and honest, and move in a direction that steers legal systems away from obvious contradiction and hypocrisy. This is an essentially rational, positivistic, enlightened approach to law and morality. This is also perhaps an echo of why most social scientists study whatever it is that they study—the presumption that empirical documentation and reasoning can lead to a more just and fair society, and that such a terminus is both possible and desirable. We might also call this the academic’s fallacy—that there is a necessary relationship between documented unreason and progressive social reform. If we just study it and write about it, things can’t help but get better. Though, more on that in a moment. First, the scope of Rhode’s argument.

Rhode’s spends her first few chapters building her factual and historical grounding, in short building the basis of her brief against adultery laws. Chapter 3, “The American Legal Landscape,” systematizes much of Rhode’s factual record for the inanity of contemporary prose- and perse- cution of infidelity. She starts noting that 21 states still have criminal prohibitions of adultery (2016:60-62), offering up states from deepest red (Alabama) to brightest blue (New York and Massachusetts). She goes on to observe that penalties also vary dramatically, from a ten-dollar fine in Maryland to life imprisonment in Michigan (2016:61). Beyond these criminal statutes, six states allow for civil tort actions, that is the ability to sue someone, for ‘criminal conversation’ (a legal term of art for adultery), as well as ‘alienation of affection’ (the supposed emotional trauma caused by having a cheating spouse (2016:79). It’s not just that these statues exist at the criminal and civil level, it’s that they are occasionally enforced: $1,410,000 here, $350,000 there (2016:79). Even beyond the crime and the tort, adultery lingers in other parts of the criminal justice system. Employers occasionally use infidelity against workers (2016:72ff), divorce and custody hearings still take adultery into account when determining culpability of a spouse, and what level of parenting-rights a person should receive, and even as a mitigating factor for murder. Though she suggest that the practice has increasingly fallen out of statutory language due to, in some cases “lobbying by women’s organizations” (2016:87), the fact of adultery could lead to the reduction in a charge from murder to manslaughter, the reduction in punishment, and even the failure of a jury to convict (2016:84ff). The cumulative weight of this sort of litany is to make the legal consideration of adultery seem at best foolish and capricious ($1.5 million? Really?) to dangerous and, in fact, scary, leading one to agree with a 2000 ruling of a South Carolina court that found that, “spousal adultery is not a license to kill” (2016:86).

Again, this is all good and pleasing to our rational, academic, empirical brains. Noting the recent dates of all of this leads the reader, or at least this reader, to fill the margins with dumbfounded horror that it wasn’t until the year 2000 that a South Carolina court had the good sense to say you shouldn’t murder someone because they slept with someone. We should be good rational moderns about all this and be embarrassed that this is still even a serious legal issue. And, again, it’s not that I disagree with this line of reasoning. I think Rhode is right on the money. But this sort of empirically reasoned, rational argument misses some of the complexity that makes up a people’s attitudes towards and arguments over what sort of familial arrangements should exist in a society. Cultures — as a shared symbolic system that people endlessly fight over — are messy, on the move, and generally contradictory. At this point, in anthropology at least, we should know this. So why, in the face of such patent irrationality, cruelty, and injustice are these statutes still on the books?

Rhodes offers a partial answer from one Georgetown Law professor, Paul Rothstein:

I don’t want to be a nut case about this, but keep the laws on the books is not such an off the wall idea. Just because something is done doesn’t mean that people want the law to reflect the baseness of human nature. They want the law to be aspirational and set forth our finest ideals. If we believe in marriage, and if the cement of that is loyalty and fidelity within a unit, then adultery does threaten it. [2016:67]

Here, Rothstein is acknowledging what Rhodes offers at the beginning of the book, the observation that law, though hopefully rational, reasonable, and fair, is also a palimpsest for a society’s moral reasoning, reflecting the messy present as well as vestiges of the past. Rothstein reads in the perdurance of adultery statutes, and the unwillingness of legislatures to do away with them, not simple backwardness, but a sort of moral aspiration. Rhode directly responds noting that, “occasional idiosyncratic enforcement does little to express those ideals, and it compromises public respect for the rule of law” (2016:67). This sort of an exchange begs the question, how is it that we got to a place where adultery could be illegal in the first place. If laws are palimpsests, who scrawled the base text of sexual morality and punishment? This sort of inquiry leads us and Rhode to, of course, America’s prototypical religious zealots, those austere, witch and women murdering settler-colonists; I’m talking about, of course, black swaddled, shoe-buckled, New England Puritans, and an archaeology of their legal architecture, and our legal inheritance that saw adultery as a sin, sins as crimes against God, and crimes against God, ultimately as crimes against the community. Laws, in turn shouldn’t reflect or be limited to individuals but should consider harm to the larger community. For an updated reflection on such reasoning, one has to look no further than North America’s treatment of polygamy via Janet Bennion and Lisa Fishbayn Joffe’s book The Polygamy Question (NB: Though the authors mean polygyny, they use polygamy and polygyny interchangeably, noting that women with multiple husbands are almost non-existent).

The Polygamy Question is an edited volume, meaning it contains eleven essays from a variety of scholars (12) across a number of disciplines (anthropology, law, classics, religious studies, economics, political science, and sociology), addressing the twin questions of defining, “the harms and benefits of polygamy,” as well as, “how could [polygamy] be regulated by the state,” given whatever we end up finding about harms and benefits (2016:12). It is a loud, uneven, messy colloquy, as any good edited volume should be. It’s really a shame that, in the context of promotion and job seeking, within anthropology at least, edited volumes don’t garner more respect than they do. They can be that rare time in academia in which you overcome your own or your discipline’s selection biases and are presented with views with which you are uncomfortable (Groddbard’s chapter on an “Economist’s Perspective on Polygyny” [103ff], or a nation-state level regression analysis on the effects of polygyny offered by McDermott and Cowden [115ff]).

For all the variety of disciplinary approaches, the volume coheres around the documentary questions of what is polygyny, what is it’s extent, what does it necessarily do for people, and then how do states deal with it. To start with counting, whereas Rhode noted that somewhere between 19 and 23 percent of men and 14 to 19 percent of women admit on surveys, in a country of hundreds of millions, to committing adultery (Rhode 2016:3), the number of people in polygynous families is only estimated at upwards of 150,000—the two largest pluralities being fundamentalist Mormons and recent Muslims, the latter of which are either recent immigrants or African American members of groups like the Nation of Islam (2016:6). Bennion and Joffee note that:

Like mainstream Mormons, Fundamentalists believe that God is a mortal man who has become exalted and that if they are worthy, they too will become gods and goddesses of their own worlds. Yet, unlike the mainstream Mormon church, fundamentalists still practice polygamy, which they believe will offset the imbalance in sex ratios related to the abundance of religious women and the dearth of good men, as recorded in Isaiah 4. They see it as not only a direct commandment of God but as a catch-all solution for prostitution, homosexuality, spinsterhood, and childlessness. (2016:6)

The patriarchal upshot of all of this is later elaborated in Strasberg’s chapter, “Distinguishing Polygyny and Polyfidelity under the Criminal Law” (180ff):

Fundamentalist Mormons believe, as did the original Mormons, that God himself was once a mortal man who had achieved godhood…This means that men can also ascend to godhood by creating the right foundation during earthly life. In addition to the initial requirement that a man be righteous, which means faithful and loyal adherence to Mormon church doctrines and institutions, the primary earthly foundation for godhood is the accumulation of power over large numbers of people for whom the man will subsequently be a god in the Kingdom of Heaven…Such power can only be accumulated through the institution of celestial marriage, by which a woman is sealed to a man for all eternity, and by the birth in such a marriage of blood progeny who are also subordinated to their patriarch for all eternity…Since only men can achieve godhood, salvation and eternal life for fundamentalist women require that they enter into a polygynous union with a righteous man, bear him as man children as possible, and support the further expansion of his progeny by the addition of more wives…rejection of polygyny by women is believed to result in damnation…In addition, to ensure that they marry a righteous man, women must accept marriages approved by church elders and often arranged by them as well. (2016:185)

There is a lot there, but, perhaps, key to the ideas underpinning this actually existing polygyny in North America is the idea that wives and blood progeny are subordinated to a man-becoming-god for all eternity. This is a decent lead-in, too, to the types of harms that the authors seek to identify with polygyny. Bennion notes that “Elite Polygyny…[which is] defined as a male supremacist method of maintaining reproductive and productive control by a handful of powerful, blood-related patriarchs…[has the following negative (though seemingly predictable) consequences:] sexual abuse of children, underage marriage, financial abuse (extracting obedience in exchange for food and shelter), wife rape and battery, megalomania or narcissism, blood atonement, and the alienation of teenage males” (2016:69). Bennion, as do several other authors, takes pains to note that some of the more egregious of these harms take place, or at least go unpunished, because polygyny is illegal and happens in rural and remote locations. If there were, say, legal recognition (cf. Song’s chapter on a case for limited legal recognition 199ff), of polygynous marriages, then in the event of divorce, there would be formal recourse for spousal support. Even beyond legal recognition mitigating harm, there seem to be limited social cases in which women do better in polygyny. Elsewhere Bennion points out that there are mainline Mormon women who don’t fit well in their own religious community—for whatever reason they don’t marry or are infertile and are shunned as a consequence. Moving to a fundamentalist Mormon church can allow such ‘unmarriageable’ women to move up in the world socially and economically, and find a sense of fulfillment (2016:63). It’s worth observing, again, that this is nested in an larger patriarchal logic.

The above sequence of cause and effect leads to The Polygamy Question’s second focus—the state and polygamy. For all the harms that seem to come with polygyny, ranging from emotional estrangement to rape and violent abuse, a number of authors in the book argue that legal understanding and prohibition of polygamy has more to do with the aggrandizement of ‘civilized monogamy’ and creating an other against which nationalist identity might be articulated than with helping women and children. Ultimately Heath, in her chapter “Testing the Limits of Religious Freedom” (157ff) notes that more than doing anything to address harm, polygamy needs to be illegal, from a Canadian supreme court point of view, so that, “vulnerable monogamy…must be protected as the best means to promote gender equality and the interests of society” (164). All this is to say that The Polygamy Question adequately demonstrates the parade of horribles that can come with Mormon Fundamentalist Polygamy, and have to some lesser extent with American Muslim Polygamy. It also demonstrates that the legal and societal reasoning for opposing polygamy are difficult to parse. On the one hand, if there is a sincere concern on the parts of legislatures and judiciaries to ensure gender equality and personal liberty, then monogamous marriage, and the patriarchal, abusive, and isolating entailments that linger with it should be as critically scrutinized as polygamy (or perhaps more so, as more people participate in it). But this does not seem to happen when polygamy is targeted; rather, monogamy is equated to equality and, in turn, civilization, all things that need be protected by a blanket ban on polygamy. I recognize that in reducing one harm one need not be accountable for all harms, but this mode of thinking is a recipe for cynical inaction. But it still is a good point that opposition to polygamy is a mask for a number of other concerns.

Though we’ve danced around it, to this point at least, it’s worthwhile now to do a deep dive into what exactly is at stake in legislating monogamy or decriminalizing infidelity. Why are people in North America attached to monogamy? What does it mean, and what does a commitment to monogamy hide? And here, Angela Willey’s book, Undoing Monogamy: The Politics of Science and the Possibility of Biology is of some use in understanding how a particular way of coupling, monogamy or polyamory, become seen as natural, normal, eternal, and the bearers of a society’s morality. The book itself is relatively short; the text’s body runs to 139 pages. Yet, what the book lacks in length it makes up for in conceptual density. While, as I’ll review shortly, Willey makes an excellent and needed contribution to the study of sexuality and monogamy, I couldn’t help but wish that the book was more plainly written. So, again, why all the fuss over monogamy?

An introductory paragraph (2016:2) tells a good deal about what is to come. In her telling, compulsory, or hegemonic monogamy, the type of monogamy that need be defended from polygamy or adultery, serves only to reinforce patriarchal, that is, male-dominated, social systems, or colonial and imperial racial hierarchies. She observes that, “Both monogamy and non-monogamy name heteropatriarchal institutions within which the only important information is: how many women can a man legitimately own?” (2016:6). In turn, she quotes an early sexologist on what is at stake for a society, evolutionarily speaking, in evolving, embracing, and defending monogamy: “The love of many, if considered from the standpoint of advanced civilization, can only be of a monogamic nature…From the moment when woman was recognized the peer of man, when monogamy became a law and was consolidated by legal, religious and moral considerations, the Christian nations attained a mental and material superiority over the polygamic races, and especially over Islam” (2016:32). Never mind, again, that this quote was written when women were still governed by legal notions of coverture and didn’t really exist as legal persons. Monogamy simultaneously perpetuates patriarchy and allows for the liberation of women. At least from a male perspective, monogamy is both pretty useful, and pretty confusing. Its historical reality and contemporary inheritance suggests patriarchal subordination of women, but also captures the ideal of sexual equality.

After using her middle chapters to describe how sexualities become assumed as natural, Willey’s book reaches its most imaginative in her chapter, “Rethinking Monogamy’s Nature.” Willey analyzes Allison Bechdel’s corpus of graphic novels and comic work, largely drawn from “Dykes to Watchout For,” to offer a, “dyke antimonogamy” (2016:97). Bechdel’s work is specifically suited for this task because it decenters sexual monogamous coupling in the families and households that they conjure as the focal point of her characters’ lives. Her characters live in group houses, flow in and out of relationships, not always monogamous, work in bookstores and around universities, and most generally offer a template for belonging and attraction that is not centered around monogamous, heterosexual coupling. Insofar as monogamy has racist and patriarchal baggage attached to it, and insofar as naturalizing polyamory risks leading people to similarly pernicious essentialisms and assumptions, a ‘dyke antimonogamy’ offers a way out. It imagines a world in which, more than anything else, friendship centers the sorts of lives that people wish to create. Bechdel is, again, particularly useful, because hers is not a simple minded utopianism. Her characters have to deal with the practical constraints of coming out of a culture that assumes heterosexual monogamy. One of Bechdel’s protagonists observes on her relationship history, “these weren’t failed ventures at all, but successful reconnaissance missions in the vast uncharted terrain of human relationship potential!…Still, the picket fence would be nice” (2016:107). Still monogamous domesticity beckons.

Anthropology has had a front seat, for much of its history, to the ways family forms and kinship terms shift and change through time. The contemporary era is no different. Janet Carsten has talked about the ways new reproductive technology and surrogacy are scrambling notions of parentage, and Kath Weston, a generation ago, at least, wrote about the gay and lesbian families that people choose for themselves. Documenting shifts in attitudes towards adultery, the landscape of American polygyny, and the historic resonances captured in naturalizing monogamy fit ably into this tradition. Taken together, too, Willey, Bennion and Joffe, and Rhode, all illustrate the ways laws and legal reasoning can reflect both these social shifts as well as the stakes of social change in a given society.

Persecution of adultery and defense of monogamy both happen because people are attached to the lifestyles that they represent, and are, perhaps, scared for what their change may portend. Mormon men seeking to become gods by suborning women and children to their will, a state powerless to stop adultery, or even a bunch of college students living in a ‘single-family’ home, all point to ways monogamy is not monolithic, and heterosexual coupling is not the only way to be. There is no doubt that tectonic shifts in attitudes towards promiscuity, sexuality, and gender roles have roiled and rolled through American society in the last half century. Given all that, the highly uneven legal response the authors above outline should be expected as a society grappling with change. Moreover, and as these books demonstrate, we can read this in laws, courts, and household arrangements; all of these can become a battleground over what a family should look like.

Daniel Souleles, Brandies University

Reviewed in this essay:

Bennion, Janet and Lisa Fishbayne Joffe, Eds. 2016. The Polygamy Question. Logan: Utah State University Press.

Rhode, Deobrah L. 2016. Adultery: Infidelity and the law. Cambridge: Harvard University Press.

Willey, Angela. 2016. Undoing Monogamy: The Politics of Science and the Possibilities of Biology. Durham: Duke University Press.