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From the male perspective, a key difference between monogamy and
polygamy is the number and rate at which legitimate progeny can
be produced. Consider a male whose goal is to produce ten
children over his reproductive career. He can accomplish
this by adopting monogamy, mating with one female who produces
one child a year for ten years. Alternatively, he can become
polygamous, taking two wives at the same time, who if they produce
at the same rate as his monogamous wife, will beget him the same
number of children in half the time. Reproductive lifespans
being equal, the polygamous man can achieve a reproductive output
many-fold higher than the monogamous man, depending on how many
females he takes on as a wife. Furthermore, having babies
from multiple women is advantageous, since it creates genetically
diverse progeny, an important asset since diversity is the substrate
of natural selection.
A study of polygamous marriages in a 19th century Mormon population
in Utah confirmed that demand for a larger number of progeny than
possible with monogamy was one reason that men took additional
wives (Anderson and Emigh, Am. J. Soc., 94:832-855, 1989). According
to that study, although polygamy increased the offspring number
per individual husband, the wives showed reduced fertility. Apparently,
this was because the pressure for more children was lessoned as
the accumulated stock of joint progeny grew. Consequently,
later wives tended to show decreased fertility (as measured by
child number).
Polygamy is not without its costs. Availability of resources
is an important consideration when choosing a mating system. If
a male takes the polygamous route, in any given year, he will have
twice the number of children to support. Instead of having
only five babies at the end of five years, he can have ten mouths
to feed. When resources are not limiting, adopting the polygamy
strategy may be a good one because it permits him to double his
reproductive success. Under conditions where food and economic
resources are scarce, polygamy may be more difficult to perform
since he may be unable to provide adequate support for multiple
broods. In these circumstances of restricted supplies, monogamy
may be the better choice for the male.
These concerns appear to drive mating strategies in the animal
kingdom. In weaverbirds, it has been found that where food
is hard to find, species are monogamous, presumably to concentrate
their efforts on raising their joint offspring. When food
is abundant, and a female is capable of providing for the progeny
on her own, without the help of the male, polygamy is the logical
choice for the father weaverbird, and not surprisingly, is the
social behavior adopted by him. Krebs and Davies, An
Introduction to Behavioural Ecology, Page 26.
The equation may not be that simple. Even if food and money
are restricted, as long as more than half the babies survive, it
would still pay for him to be polygamous. In political systems
that have economic and health support structures for financially
needy families, such as the welfare system in the United States,
polygamous fathers can take advantage by free-riding their progeny
on it, increasing survivability on the expense account of the nation. [DISCUSS
UTAH CASE].
The female has a different view of it. If she relies
on the male as a provider, then any extra-marital activity he engages
in potentially diminishes the resources available to her family. A
wife whose husband has two families can expect only half the amount
of money than if she were his sole reproductive partner. For
this reason, males and females inevitably conflict when it comes
to matters of marriage, fidelity, and raising kids.
In
birds, the predominant strategy is monogamy – one male pairing
with a single female bird. However, there is evidence that
male birds practice monogamy only because of the lack of opportunity
to get extra mates. When competing males are removed from
neighboring territories, freeing up unpaired females, a seemingly
happy monogamous bird will become an infidel, deserting his first
mate for a second. Krebs and Davies, An Introduction
to Behavioural Ecology, Page 226.
For
Americans, monogamy is the rule of law. The female gets her
way, and doesn’t have to share her husband, or his wealth,
with any other family. The male devotes all his energy to
one family, and there is no resource splitting. This also
conserves the value of sex as bargaining tool for the female since
the male has no other legitimate sources to get it from.
At
first glance, the monogamy rule looks bad for the male since it
restricts his reproductive output. With only one legitimate
partner, the reproductive playing field is leveled, and he is prevented
from maximizing his number of offspring by taking on multiple wives.
But, for the average male, polygamy also has a downside. When
polygamy is allowed, competition for females is sharply increased. As
more men take on multiple wives, the pool of available females
shrinks, resulting in a rise in the number of single, unmarried
men. Not good for society, and not good for the reproductive
interests of the male population as a whole. Take a group
of ten men and ten women. With the monogamy rule, every male
has an opportunity to procreate. But imagine what happens when
polygamy is practiced. If two men take on two wives each,
this leaves only six females for the remaining eight males. Two
are left out. When three men practice bigamy, there are now
seven unmarried men who must compete for the four women who are
left. Three, or 30%, of the population will ultimately be
denied marital success. Assuming a sex ratio between females
and males of about 1:1, allowing polygamous marriages results in
increased competition between males for females, and generates
a leftover population of unwedded men who have the potential to
become unruly and disruptive. This may explain why polygamy
is prohibited is so many cultures.
The
monogamy rule benefits the individual interests of the female,
and the group interests of the male, since it prohibits any one
male from getting any more than his fair share of one lawful female. Any
strategy that offsets this disadvantage we might expect to be adopted
by more successful males. Paternal genes that promote the
birth of multiple progeny from the same pregnancy are one solution
for a dad. Dizygotic twins – where two different sperm
independently fertilize two eggs – have been reported to
run in certain families, suggesting a genetic component [REF]. Cheating
on the spouse is another approach. Studies of birds have
revealed that, when a male can’t get another mate, he may
sneak extra-marital copulations as a way of increasing his reproductive
productivity. Krebs and Davies, An Introduction to Behavioural
Ecology, Page 226-227.
Just how well the adultery tactic works depends on the expense
of out-of-wedlock kids. At common law, illegitimate children
generally had no right of paternal support by a natural, but unwed
father – a winning combination for creating children outside
a lawful marriage. The man got his extra child or two without
any financial obligation. But since the early 1900’s,
most states have required parents to provide support and maintenance
of his or her biological child. Although it had been argued
that this support duty should be limited to legitimate children,
this distinction was abolished in Gomez v. Perez, 409
U.S. 535 (1973) which established that once a state gives a child
the right to support by a biological father, benefits can not be
denied to that child simply because the father was not married
to the mother. Because of the costs involved, paternal support
statutes can be viewed as a disincentive for the adulterous offspring-seeking
man. From an economic perspective, their effectiveness in
deterring polygamous behavior would depend on the expense of an
out-of-wedlock child versus a legitimate child. Assuming
no social stigma, monogamy plus arrangements where a man has one
legal wife plus one extramarital partner might be preferred over
marital polygamy when paternal support is cheaper for an illegitimate
child than one born in a marriage. This could be the case
where support is limited to economic resources, and it is cheaper
to pay out, rather than expend parenting energy and other resources
on establishing a relationship with the child.
Supreme Court of the United States
98 U.S. 145; 25 L. Ed. 244; 1878 U.S. LEXIS 1374;
8 Otto 145
OCTOBER, 1878, Term
PRIOR HISTORY: ERROR to the Supreme Court of the Territory
of Utah.
This is an indictment found in the District Court for the third
judicial district of the Territory of Utah, charging George Reynolds
with bigamy, in violation of sect. 5352 of the Revised Statutes,
which, omitting its exceptions, is as follows: --
“Every person having a husband or wife living, who marries
another, whether married or single, in a Territory, or other place
over which the United States have exclusive jurisdiction, is guilty
of bigamy, and shall be punished by a fine of not more than $500,
and by imprisonment for a term of not more than five years.”
OPINION:
…
5. As to the defence of religious belief or duty.
On the trial, the plaintiff in error, the accused, proved that
at the time of his alleged second marriage he was, and for many
years before had been, a member of the Church of Jesus Christ of
Latter-Day Saints, commonly called the Mormon Church, and a believer
in its doctrines; that it was an accepted doctrine of that church "that
it was the duty of male members of said church, circumstances permitting,
to practise polygamy; . . . that this duty was enjoined by different
books which the members of said church believed to be to divine
origin, and among others the Holy Bible, and also that the members
of the church believed that the practice of polygamy was directly
enjoined upon the male members thereof by the Almighty God, in
a revelation to Joseph Smith, the founder and prophet of said church;
that the failing or refusing to practise polygamy by such male
members of said church, when circumstances would admit, would be
punished, and that the penalty for such failure and refusal would
be damnation in the life to come." He also proved "that
he had received permission from the recognized authorities in said
church to enter into polygamous marriage; . . . that Daniel H.
Wells, one having authority in said church to perform the marriage
ceremony, married the said defendant on or about the time the crime
is alleged to have been committed, to some woman by the name of
Schofield, and that such marriage ceremony was performed under
and pursuant to the doctrines of said church."
Upon this proof he asked the court to instruct the jury that if
they found from the evidence that he "was married as charged
-- if he was married -- in pursuance of and in conformity with
what he believed at the time to be a religious duty, that the verdict
must be 'not guilty.'" This request was refused, and the court
did charge "that there must have been a criminal intent, but
that if the defendant, under the influence of a religious belief
that it was right, -- under an inspiration, if you please, that
it was right, -- deliberately married a second time, having a first
wife living, the want of consciousness of evil intent -- the want
of understanding on his part that he was committing a crime --
did not excuse him; but the law inexorably in such case implies
the criminal intent."
Upon this charge and refusal to charge the question is raised,
whether religious belief can be accepted as a justification of
an overt act made criminal by the law of the land. The inquiry
is not as to the power of Congress to prescribe criminal laws for
the Territories, but as to the guilt of one who knowingly violates
a law which has been properly enacted, if he entertains a religious
belief that the law is wrong.
Congress cannot pass a law for the government of the Territories
which shall prohibit the free exercise of religion. The first amendment
to the Constitution expressly forbids such legislation. Religious
freedom is guaranteed everywhere throughout the United States,
so far as congressional interference is concerned. The question
to be determined is, whether the law now under consideration comes
within this prohibition.
The word "religion" is not defined in the Constitution.
We must go elsewhere, therefore, to ascertain its meaning, and
nowhere more appropriately, we think, than to the history of the
times in the midst of which the provision was adopted. The precise
point of the inquiry is, what is the religious freedom which has
been guaranteed.
Before the adoption of the Constitution, attempts were made in
some of the colonies and States to legislate not only in respect
to the establishment of religion, but in respect to its doctrines
and precepts as well. The people were taxed, against their will,
for the support of religion, and sometimes for the support of particular
sects to whose tenets they could not and did not subscribe. Punishments
were prescribed for a failure to attend upon public worship, and
sometimes for entertaining heretical opinions. The controversy
upon this general subject was animated in many of the States, but
seemed at last to culminate in Virginia.In 1784, the House of Delegates
of that State having under consideration "a bill establishing
provision for teachers of the Christian religion," postponed
it until the next session, and directed that the bill should be
published and distributed, and that the people be requested "to
signify their opinion respecting the adoption of such a bill at
the next session of assembly."
This brought out a determined opposition. Amongst others, Mr.
Madison prepared a "Memorial and Remonstrance," which
was widely circulated and signed, and in which he demonstrated "that
religion, or the duty we owe the Creator," was not within
the cognizance of civil government. Semple's Virginia Baptists,
Appendix. At the next session the proposed bill was not only defeated,
but another, "for establishing religious freedom," drafted
by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist.
of Va. 298.In the preamble of this act (12 Hening's Stat. 84) religious
freedom is defined; and after a recital "that to suffer the
civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which
at once destroys all religious liberty," it is declared "that
it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt
acts against peace and good order." In these two sentences
is found the true distinetion between what properly belongs to
the church and what to the State.
In a little more than a year after the passage of this statute
the convention met which prepared the Constitution of the United
States." Of this convention Mr. Jefferson was not a member,
he being then absent as minister to France. As soon as he saw the
draft of the Constitution proposed for adoption, he, in a letter
to a friend, expressed his disappointment at the absence of an
express declaration insuring the freedom of religion (2 Jeff. Works,
355), but was willing to accept it as it was, trusting that the
good sense and honest intentions of the people would bring about
the necessary alterations. 1 Jeff. Works, 79. Five of the States,
while adopting the Constitution, proposed amendments. Three --
New Hampshire, New York, and Virginia -- included in one form or
another a declaration of religious freedom in the changes they
desired to have made, as did also North Carolina, where the convention
at first declined to ratify the Constitution until the proposed
amendments were acted upon. Accordingly, at the first session of
the first Congress the amendment now under consideration was proposed
with others by Mr. Madison. It met the views of the advocates of
religious freedom, and was adopted. Mr. Jefferson afterwards, in
reply to an address to him by a committee of the Danbury Baptist
Association (8 id. 113), took occasion to say: "Believing
with you that religion is a matter which lies solely between man
and his god; that he owes account to noneother for his faith or
his worship; that the legislative powers of the government reach
actions only, and not opinions, -- I contemplate with sovereign
reverence that act of the whole American people which declared
that their legislature should 'make no law respecting an establishment
of religion or prohibiting the free exercise thereof,' thus building
a wall of separation between church and State. Adhering to this
expression of the supreme will of the nation in behalf of the rights
of conscience, I shall see with sincere satisfaction the progress
of those sentiments which tend to restore man to all his natural
rights, convinced he has no natural right in opposition to his
social duties." Coming as this does from an acknowledged leader
of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment
thus secured. Congress was deprived of all legislative power over
mere opinion, but was left free to reach actions which were in
violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western
nations of Europe, and, until the establishment of the Mormon Church,
was almost exclusively a feature of the life of Asiatic and of
African people. At common law, the second marriage was always void
(2 Kent, Com. 79), and from the earliest history of England polygamy
has been treated as an ofence against society. After the establishment
of the ecclesiastical courts, and until the time of James I., it
was punished through the instrumentality of those tribunals, not
merely because ecclesiastical rights had been violated, but because
upon the separation of the ecclesiastical courts from the civil
the ecclesiastical were supposed to be the most appropriate for
the trial of matrimonial causes and offences against the rights
of marriage, just as they were for testamentary causes and the
settlement of the estate of Deceased persons.
By the statute of 1 James I. (c. 11), the offence, if committed
in England or Wales, was made punishable in the civil courts, and
the penalty was death.As this statute was limited in its operation
to England and Wales, it was at a very early period re-enacted,
generally with some modifications, in all the colonies. In connection
with the case we are now considering, it is a significant fact
that on the 8th of December, 1788, after the passage of the act
establishing religious freedom, and after the convention of Virginia
had recommended as an amendment to the Constitution of the United
States the declaration in a bill of rights that "all men have
an equal, natural, and unalienable right to the free exercise of
religion, according to the dictates of conscience," the legislature
of that State substantially enacted the statute of James I., death
penalty included, because, as recited in the preamble, "it
hath been doubted whether bigamy or poligamy be punishable by the
laws of this Commonwealth." 12 Hening's Stat. 691. From that
day to this we think it may safely be said there never has been
a time in any State of the Union when polygamy has not been an
offence against society, cognizable by the civil courts and punishable
with more or less severity. In the face of all this evidence, it
is impossible to believe that the constitutional guaranty of religious
freedom was intended to prohibit legislation in respect to this
most important feature of social life. Marriage, while from its
very nature a sacred obligation, is nevertheless, in most civilized
nations, a civil contract, and usually regulated by law. Upon it
society may be said to be built, and out of its fruits spring social
relations and social obligations and duties, with which government
is necessarily required to deal. In fact, according as monogamous
or polygamous marriages are allowed, do we find the principles
on which the government of the people, to a greater or less
extent, rests. Professor Lieber says, polygamy leads to the patriarchal
principle, and which, when applied to large communities, fetters
the people in stationary despotism, while that principle cannot
long exist in connection with monogamy. Chancellor Kent observes
that this remark is qually striking and profound. 2 Kent, Com.
81, note (e). An exceptional colony of polygamists under an exceptional
leadership may sometimes exist for a time without appearing to
disturb the social condition of the people who surround it; but
there cannot be a doubt that, unless restricted by some form of
constitution, it is within the legitimate scope of the power of
every civil government to determine whether polygamy or monogamy
shall be the law of social life under its dominion.
In our opinion, the statute immediately under consideration is
within the legislative power of Congress. It is constitutional
and valid as prescribing a rule of action for all those residing
in the Territories, and in places over which the United States
have exclusive control. This being so, the only question which
remains is, whether those who make polygamy a part of their religion
are excepted from the operation of the statute. If they are, then
those who do not make polygamy a part of their religious belief
may be found guilty and punished, while those who do, must be acquitted
and go free. This would be introducing a new element into criminal
law. Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they
may with practices. Suppose one believed that human sacrifices
were a necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously
believed it was her duty to burn herself upon the funeral pile
of her dead husband, would it be beyond the power of the civil
government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? The permit this would be
to make the professed doctrines of religious belief superior to
the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under such
circumstances.
A criminal intent is generally an element of crime, but every
man is presumed to intend the necessary and legitimate consequences
of what he knowingly does. Here the accused knew he had been once
married, and that his first wife was living. He also knew that
his second marriage was forbidden by law. When, therefore, he married
the second time, he is presumed to have intended to break the law.
And the breaking of the law is the crime. Every act necessary to
constitute the crime was knowingly done, and the crime was therefore
knowingly committed. Ignorance of a fact may sometimes be taken
as evidence of a want of criminal intent, but not ignorance of
the law. The only defence of the accused in this case is his belief
that the law ought not to have been enacted. It matters not that
his belief was a part of his professed religion: it was still belief,
and belief only.
In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents of
a sick child, who omitted to call in medical attendance because
of their religious belief that what they did for its cure would
be effective, were held not to be guilty of manslaughter, while
it was said the contrary would have been the result if the child
had actually been starved to death by the parents, under the notion
that it was their religious duty to abstain from giving it food.
But when the offence consists of a positive act which is knowingly
done, it would be dangerous to hold that the offender might escape
punishment because he religiously believed the law which he had
broken ought never to have been made. No case, we believe, can
be found that has gone so far.
6. As to that part of the charge which directed the attention
of the jury to the consequences of polygamy.
The passage complained of is as follows: "I think it not
improper, in the discharge of your duties in this case, that you
should consider what are to be the consequences to the innocent
victims of this delusion. As this contest goes on, they multiply,
and there are pure-minded women and there are innocent children,
-- innocent in a sense even beyond the degree of the innocence
of childhood itself. These are to be the sufferers; and as jurors
fail to do their duty, and as these cases come up in the Territory
of Utah, just so do these victims multiply and spread themselves
over the land."
While every appeal by the court to the passions or the prejudices
of a jury should be promptly rebuked, and while it is the imperative
duty of a reviewing court to take care that wrong is not done in
this way, we see no just cause for complaint in this case. Congress,
in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories.
This was done because of the evil consequences that were supposed
to flow from plural marriages. All the court did was to call the
attention of the jury to the peculiar character of the crime for
which the accused was on trial, and to remind them of the duty
they had to perform. There was no appeal to the passions, no instigation
of prejudice. Upon the showing made by the accused himself, he
was guilty of a violation of the law under which he had been indicted:
and the effort of the court seems to have been not to withdraw
the minds of the jury from the issue to be tried, but to bring
them to it; not to make them partial, but to keep them impartial.
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