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Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010).

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners.

Davis convincingly argues that scholars analogizing between these two types of marriage only seem convincing because they frame the debate at a high level of generality. They argue that both marriage forms require that we honor a right to “freedom” in the formation of intimate relationships, speaking in the “due process” and “fundamental rights” idiom of Lawrence v. Texas. However, Davis argues that polygamous marriage’s constitutive and non-shared feature is its seriality. Polygamous unions are constantly in the process of contracting and expanding, she explains, as the partners to the marriage add and subtract spouses. With this contrast made clear, Davis moves to an analysis of the distinct and deeply serious agency risks inherent in polygamous unions, with the goal of showing how they might be overcome.

In order to properly regulate polygamy, she explains, we must focus on the special autonomy and economic risks faced by sister wives in polygamous marriages. While she does not make this pitch explicit, she invites her readers to imagine the creation of a “Uniform Sister-Wife Act,” a series of sticky default rules that would ensure that partners to polygamous marriages can protect their fair share of the “marital pie” in the face of a constantly evolving marital relationship.

Davis is fearless and unflinching in the portrait she paints of polygamous unions. She challenges us to take polygamy on the terms we currently find it, typically established as a one husband, multiple wife model, with the husband as the expected primary financial support. Additionally, she reveals the numerous, diverse and radically different constituencies with a vested interest in polygamy’s decriminalization: feminists, Mormons, Christian fundamentalists, immigrant groups, members of the Nation of Islam and black nationalists.  (Who knew that one of the largest groups of practicing polygamists is a collection of the last two groups mentioned above, living in Philadelphia?)

As a result of Davis’s efforts we are left with a far more complicated understanding of the role polygamy plays in contemporary American culture.  Her project would have been vastly simpler had she bracketed the contemporary realities of polygamous unions and focused her model solely on the highly seductive, feminist utopian version of polygamy that some scholars have imagined. 1 This utopian version assumes that polygamous marriages may contain more than one husband, and/or that women and men exercise relatively equal economic power in the home, as both sexes are equally able to participate in the world of paid work. Davis instead invites the reader to embrace some of the more disturbing examples of polygamy, as it is practiced today.  She reveals that the attendant risks associated with contemporary polygamous unions can be addressed by drawing on models in partnership law.  As a result of her efforts we have a careful, thoughtful, and provocative analysis of the risks of domination produced by existing polygamous unions, even as she gives us tools that will allow for the regulation of the imagined polygamous unions of tomorrow.

Davis’s piece of course will make readers think of the now-cancelled HBO Drama Big Love, which followed the trials and travails of Bill Hendrickson and his three sister wives  (Barb, Nicki and Margene) as they negotiated life in suburban Utah.  Davis explains that by moving polygamy from the compound to the suburbs, the show’s producers ushered polygamy into a new era in popular discourse, inviting us to imagine the polygamous family as just another family living next door.  But after reading Davis’s piece, feminist viewers of Big Love will be reminded of the complex economic dance these sister wives faced as the marriage evolved.  As the series progressed, multiple unexpected forms of domination emerged, prompting numerous questions.  What recourse does a sister-wife have when she is forced to become the primary childbearer for the entire family?  What recourse does she have when another wife attempts to outsource childcare duties to her?  What legal remedies can she claim when exploitative demands are made on her earnings by her fellow sister wives? Finally, and perhaps most importantly, what recourse does she have when she opposes the introduction of a new sister wife?

The utopian vision of polygamy that some feminists imagine makes these negotiations seem seamless and easy.  Big Love reveals that they are often ugly and difficult.  Regulating Polygamy provides solutions to some of the thorniest problems, and reveals that others are simply unexceptional challenges that are already embedded in dyadic marriages.

Davis’s piece is profoundly important in my view because it comes at a time when utopian feminist arguments about polygamy are gaining ground. She draws our attention to the information deficits and negotiation risks women face prior to entering these marriages, and the potential dilution of voting interest and economic share as the marriage evolves to include more partners. The issues she raises are sure to give readers pause, particularly those who subscribe to view that we should fold back into the family relationship many of the maternal and wifely responsibilities working mothers now outsource to housekeepers, nannies and other care providers. That is, feminist readers may conclude that women are far safer in dyadic marriages – albeit relying heavily on the network of commercial or extended family helpers that Melissa Murray describes,2 rather than accepting the complications polygamous marriages bring. I myself am deeply concerned about the way marriage often compels working women to outsource the most difficult “wifely” nuturing and care giving responsibilities, and to assign them to poorly paid brown and black bodies. I am deeply concerned about the tendency to downshift intimacy and caregiving into short term, disposable relationships—a kind of treatment we do not expect in families.  Yet Davis’s article makes one profoundly aware that expanding the marriage relationship and bringing in new partners to share these responsibilities does not resolve these perennial questions.  Indeed, it makes resolution even more fraught.

There is much to recommend Regulating Polygamy.  One can trust Davis to be a neutral and pragmatic guide as she explains polygamy’s challenges.  She is neither an advocate for polygamous marriage, nor a detractor intending to warn us away from this family form.  The reader leaves her discussion with a better understanding of how commercial law can provide helpful direction as we determine how to create legal protections that will adequately inform and ensure the fair treatment of sister wives (and potentially brother husbands) in the future. However, she also paints a compelling picture of the challenges we face in attempting to regulate polygamy. Policymakers would do well to keep her on speed dial if they ever take up this challenge.

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  1. See, e.g., Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. Rev. L. & Soc. Change 277, 283, 308 (2004).
  2. Melissa E. Murray, The Networked Family: Reframing the Legal Understanding Caregiving and Caregivers, 94 Va. L. Rev. 385 (2008).
Cite as: Camille Gear Rich, The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”, JOTWELL (September 11, 2012) (reviewing Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010)),