Autonomy, Imperfect Consent, and Polygamist Sex Rights Claims

This paper explores a recent wave of pro-polygamy activism, exemplified in the recent Tenth Circuit challenge in Bronson v. Swensen. Though the plaintiffs in this case challenged Utah’s bigamy law partly on religious freedom grounds, they also argued that the law violated their rights to liberty and privacy under the Due Process Clause of the Fourteenth Amendment. In doing so, they relied heavily on the seminal gay rights case Lawrence v. Texas. In addition to invoking Lawrence, there are many other ways in which the Bronson plaintiffs and other polygamy activists make use of tactics and rhetorical strategies borrowed from feminism and LGBT rights activism. This paper posits that feminism and LGBT rights are part of a broader tradition of sex rights that is rooted in such values as gender equality, freedom from abuse or discrimination and bodily and sexual self-determination, and seeks to answer two questions about the relationship between this tradition of sex rights and polygamy activism. First, it inquires whether polygamy activism can be properly understood as part of this framework, given that its commitment to the range of sex rights values may be incomplete or ambivalent. Polygamy activists’ complex relationship with sex rights is not unique in the world of sex rights claimants, and thus considering them in a sex rights framework is both informative and appropriate. Second, the paper asks what particular insights polygamy activism has to add to conversations about sex rights. The tensions in polygamy activism point to questions about how the law should handle situations where a person is asserting freedom of choice in a context where they may be operating under cultural or other constraints, situations this paper describes as dealing with “imperfect autonomy.” This paper finishes by exploring imperfect autonomy through the lens of polygamy activism and other types of sex rights claims, and proposes some ideas for improving the law’s treatment of imperfect autonomy.