Document Type

Article

Publication Title

Colombia Law Review Sidebar

Publication Date

5-26-2011

Abstract

In her Article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, Professor Adrienne Davis argues that the frequently invoked analogy between same-sex marriage and polygamy has been a red herring in the debate about polygamy, distracting collective attention away from polygamy's multiplicity, its "truly distinctive, and legally meaningful" feature. This analogy, Davis observes, has been made by polygamy's strongest proponents as well as its strongest opponents. As a result of its ability to distract, Davis argues that the gay marriage analogy has caused scholars to neglect what Davis considers the more pressing questions about polygamy, namely "whether and how polygamy might be effectively recognized and regulated, i.e., licensed." She answers these questions by proposing a regulatory model based on commercial partnership law for polygamous marriages. ...

After reconstructing Davis's argument in Part 1, this Response argues in Part II that those in favor of legally recognizing polygamous marriage should analogize it to sodomy rather than same-sex marriage, for two possible reasons in addition to the reason that Davis proffered, namely that polygamy's multiplicity distinguishes it essentially from same-sex marriage. First, since the Supreme Court decided Lawrence v. Texas in 2003, the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages. Second, sodomy and polygamy share in common a history of criminalization which same-sex marriage does not, further weakening the analogy between same-sex marriage and polygamy. This Response then argues that an analogy to same-sex marriage, not sodomy, has survived despite the obvious differences between same-sex marriage and polygamy because of a resistance to discussing the specific sexual acts that go on between members of the same sex. It is these sexual acts, of course, that highlight the differences between same-sex and opposite-sex couples.

In Part III, this Response argues that, when fighting for rights on behalf of sexual minorities, advocates should remember not only the ways in which these minorities are similar to the sexual majority but also the ways in which they are different. This Part draws on the history of the LGBT rights movement to argue that the movement's strategy-which has been to demonstrate how its constituents are just like everybody else-deviates from its purpose, which has been and should be to protect difference. Favoring an analogy to same-sex marriage as opposed to sodomy is but one example of the salience of similarity as opposed to difference in the LGBT rights movement. A better LGBT rights movement, this Response ultimately argues, is one that protects difference-a movement that is unafraid of sodomy and unafraid of incorporating polygamists into its constituency.

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