I don’t want to be overly cynical about this but I do try to be pragmatic. When I imagine living in a society where women (including lesbians) are married off without their consent and then expected to have sex with a stranger and raise his children, having the option to join a nunnery begins to look like a real act of societal tolerance and mercy. The exact same thing can be said about men, who have traditionally had the option to take a vow of celibacy and join the priesthood. Perhaps a society needs its religious scholars and instructors, but it also needs safe places for the square pegs that don’t fit the established mold. It seems to me that the religious orders have traditionally been imperfect answers to both needs.
Now, when it comes to monogamy, maybe you think it’s the natural order of things and what God wants for his children. But it’s a timeless truism that you invite violence when you seek to have sexual relations with a woman who is already claimed by another man. Consider the simple job of policing a primitive society of people when you have no police force or prisons or restraining orders. It seems like a practical solution is to give a man the right to one woman, to strongly prohibit adultery (and murder) so that transgressions can be handled in a legal kind of way, and you can thereby hope to have some semblance of peace.
I don’t mean to suggest that we ought to order our society the way it was ordered when we were much less civilized, but when Noah Feldman talks about his right to be a polygamist, he’s trying to operate entirely on a theoretical plane of rights. So, when he finally gets around to asking if the state has a compelling interest in promoting monogamy and discouraging polygamy, he doesn’t even touch on the issue of male violence. We’re civilized, but I doubt that we’re that civilized.
We’re certainly dealing with some anachronisms here. For example, even in polygamist cultures, there’s always been a recognition that a man should not have more wives than he can provide for. That’s the kind of consideration that led the authors of Deuteronomy to demand that a man marry his brother’s widow. These kinds of things seem necessary when women don’t work outside the home and you have no welfare state.
In our present society, marriage is a consensual matter and an entirely optional one. It isn’t actually necessary anymore. But that doesn’t mean that we’ve entirely transcended human nature. There are still a host of reasons why our society benefits when people form monogamous units, including the increased likelihood that children are raised by both parents, the avoidance of the transmittal of sexual diseases, the reduction of how many families need government assistance, and (yes) a reduction in male violence.
Finally, if we look around the world and in the history books, polygamy and women’s rights do not go together. If we’re talking about a situation where women are completely autonomous agents who enter into these plural marriages voluntarily, that may seem almost like an advance in rights. After all, they’d be free to have multiple husbands. Somehow, it never works out like that, as we can see in the still-surviving polygamist outposts in our own country.
However you look at it, I don’t think you can productively analyze the merits of anti-polymany laws without reference to more than the implications of some recent Supreme Court cases and an appeal to fundamental rights. We’re people who are trying to live together in societies. Our laws and customs reflect that, even when they become less and less ideally suited to the times.