Religion and Human Rights (31): Polygamy, Right or Rights Violation?

In the U.S., 9 states – including Utah, the center of Mormonism – make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute polygamous families. Polygamy is only legal in North Africa and most of the Muslim world. Does it make sense to promote the right to same-sex, interracial and interreligious marriage, and at the same time oppose polygamy? (By the way, polygamy usually means polygyny: one husband, multiple wives – the opposite, polyandry, is extremely rare).

Marriage is a recognized human right, but does the word “marriage”, as it is used in human rights language, also cover polygamous marriage? From the texts of human rights treaties and declarations, it’s not even clear that it covers same-sex marriage – although it undoubtedly covers interracial and interreligious marriage. The word “marriage” isn’t clearly defined in the texts. Article 16 of the Universal Declaration merely states the following:

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Polygamy or same-sex marriage aren’t specifically mentioned as being forms of marriage that are included in the right to marry, but neither is it the case that sexual orientation or the numbers of partners are stipulated as unwarranted limitations to the right to marry. So the phrasing as it stands neither includes nor excludes polygamy or same-sex marriage as a right. Article 23 of the International Covenant on Civil and Political Rights isn’t much clearer.

However, the case for same-sex or interracial marriage can be based on other articles, such as the non-discrimination provisions. Article 2 of the International Covenant states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Sexual orientation is not mentioned but it is accepted that the list given here is a list of examples and not exhaustive. “Without distinction of any kind” is clear enough. Article 3 states:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

And Article 26:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It’s not clear whether polygamists can invoke the same non-discrimination provisions. Perhaps the right to privacy can help them. Article 12 of the Universal Declaration:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.

However, apart from the question whether polygamy can be defended or not on the basis of existing human rights law, there are some good reasons why perhaps there shouldn’t be a right to polygamous marriage, even if it can be established that there is such a right. Wives may be pressured into polygamous marriages or prohibited from exiting them; they may suffer inequality and oppression in their marriage; and young girls may be forced to marry. The same risks exist of course in normal monogamous marriage, but are perhaps more important in polygamous marriage.

Moreover, polygamous marriage poses certain risks that are non-existent in normal marriage: excess boys in polygamous communities are often ostracized and condemned to a life of poverty and homelessness; and there’s a risk that marriage as an institution and as a general right may suffer when polygamy becomes widespread:

Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage is important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There’s no better path to inequality, social unrest, and authoritarian social structures than polygamy. (source)

And yet, if it’s the case that

  • polygamy remains a fringe custom
  • polygamists are generally exercising their free choice and informed consent
  • no children are forced to marry or are sexually abused
  • and excess boys are not ostracized

then why would anyone oppose polygamy? Monogamous marriage isn’t illegal because some wives are beaten or because there are some cases of monogamous child marriage. One could oppose polygamy for religious reasons, but those aren’t sufficient in liberal democracies. Polygamy can only be problematic when it’s a practice that regularly and intrinsically leads to rights violations, as it does when child brides are common, when wives are commonly forced into marriage or when widespread polygamy makes it very difficult for men to find brides and marry.

Another thing to consider is gender equality. Even if polygamy is rare enough not to deny men a reasonable chance of marriage, and even if all polygamous wives are adults who freely consent to their marriage and who have equal standing within their marriages, then it’s still the case that the practice itself can signal gender inequality and hence perpetuate it. The reason is that polygyny, by its very nature, signals that men have more rights than women: a man can take several wives, but not vice versa. A legal right to polygamy would of course also entail a right to polyandry, but it’s unlikely that the risks to gender equality created by polygyny would be offset by many cases of polyandry. The more likely result is that polygyny fosters preexisting misogynistic prejudice because polygyny will always be more common that polyandry.

So, in the end a lot depends on how often polygamy results in rights violations. Is polygamy more like child marriage, which by definition is a rights violation (it involves pedophilia, the denial of education, health problems resulting from pregnancy at an early age etc.)? Or is it more like monogamous or same-sex marriage, which may produce rights violations such as domestic violence, but not intrinsically so? If some practice by definition violates rights, it should obviously be prohibited. If the practice only does so by accident and exceptionally, then it should in general be protected, especially when the practice itself is a human right. I claim that there is nothing inherently wrong with polygamy, as long as it’s not set up in such a way that it violates rights – as long as in most cases the wives consent (in an informed way), children are left alone, boys aren’t ostracized, and the practice isn’t so widespread that men can’t marry or that women feel they are second class citizens.

In this respect, polygamy is similar to hate speech. In the case of hate speech we are also dealing with a presumptive right, but one that can be abrogated when its exercise becomes too widespread with negative consequences for the rights of others. When a small black minority for instance is overwhelmed by hate speech, to such an extent that black people can’t go outside for fear of constant insult, then their right to freedom of movement should trump the speech rights of the haters.

For a more pessimistic view on polygamy, go here.

Children’s Rights (13): Minimum Age of Marriage Laws Reduce Incidence of Child Marriage

In many countries, it’s customary for girls to marry at a very young age, voluntarily or not. This practice is detrimental to the human rights of women, as I argued before.

In the developing world, more than one third of women aged 20 to 24 report that they were married or in a union by the age of 18. (source)

This practice is often legally entrenched:

In 50 countries, the minimum legal age of marriage is lower for females. (source)

However, it seems that the law can also work the other way.

Or perhaps the causation goes the other way: countries where customs are against early marriage also adopt laws stipulating a high minimum marriage age. In general, we shouldn’t be too optimistic about the power of legislation.

The Causes of Wealth Inequality (11): Family Structure

In the U.S., and probably in other countries as well, there’s been an increase in the number of single parent families. Most of the time, that means a single mother, divorced or unmarried, or with a husband in prison, and raising one or several children on her own. As a result:

The percentage of children living with one parent has doubled since 1970, from 12 percent to more than 26 percent in 2004. (source)

There are about 13.7 million single parents in the United States today, and those parents are responsible for raising 21.8 million children. 84% of those single parents are mothers.

Single mothers often earn relatively lows wages, partly because they can’t afford to work long hours. Combine that with the fact that they have higher per person expenses (heating a house costs just as much for a two parent family as for a single parent family) and the fact that women in general have lower wages, and you have a recipe for inequality.

However, the growth in the number of single parent families in the U.S. flattened when income inequality continued to increase. So, family structure may be a good although partial explanation of poverty levels, but not necessarily of inequality. There must be other causes, some of which are discussed here.

Gender Discrimination (22): Gendercide

The Economist has a front page story this week on “gendercide”, the millions of girls missing in the world, especially in India and China. Perhaps as many as 100 million girls have disappeared in the last decades because of

  • selective abortions encouraged by new medical technology (ultrasounds and fertility technology)
  • childhood neglect of girls (nutritional, educational neglect and neglect in health care)
  • prejudice, preference for male offspring and
  • population policies such as the “one child policy” in China.

Interestingly, the skewed sex ratios that result from gendercide (in some areas of China, 130 boys are being born for every 100 girls) are coming back to haunt the men that are responsible (although many mothers probably aren’t without fault either). Because of their relative scarcity, women have found an unlikely source of power. They have a competitive advantage in the marriage market, and can demand more in marriage negotiations, or at least be more selective when choosing a mate.

Causes

In my view, the word “gendercide” is somewhat overwrought because, contrary to genocide, the word that inspired the neologism of gendercide, there’s no centralized plan to exterminate women. Femicide would be a better term since it’s obviously only one of two genders that’s targeted, but it still sounds like a government organized campaign of extermination. Gendercide is the result of a combination of causes:

  • individual choices based on
  • plain prejudice against girls
  • cultural and legal traditions, or
  • economic incentives that have been formed by historical prejudice.

Perhaps girls still need a dowry, and poor parents may find it difficult to save enough and hence prefer a boy. Or perhaps they prefer a boy because the law of their country or tribe – inspired by age-old prejudice – says that only boys can inherit land or the family business. Again, the parents may prefer a boy for this reason, not because they dislike girls. Or perhaps tradition holds that girls marry off into their husbands families, and parents simply want to be sure to have someone in their home to care for them when they are old (“raising a daughter is like watering your neighbor’s garden”, is a Hindu saying).

Consequences

The consequences of gendercide are mixed. It’s obviously horrible to the girls that are aborted or neglected to death. But, as in the “boomerang” case cited above, gendercide may ultimately empower women. However, the skewed sex ratios also spell trouble: the presence of armies of men who can’t find wives and have children (“bare branches” or “guanggun” they are called in China) may result in more sexual violence, depression, suicide, human trafficking etc. It’s estimated that in 10 years time, one in five young Chinese men won’t be able to find a bride. On the other hand, a shortage of women will encourage immigration, and immigration may help some women escape poverty, and perhaps will also result in more intercultural tolerance.

Solutions

Economic development won’t stop it. In China and India, the regions with the worst sex ratios are wealthy ones, with educated populations. Even in some population strata in the U.S. sex ratios are skewed. When people escape poverty, fertility rates drop, and when families have fewer children, the need to select for sex only becomes more important in order to realize their son preference. In poor societies with high fertility rates, families are almost destined to have a boy at some point. Female children will suffer relative neglect and may die more often and more rapidly (skewing the sex ratios), but selective abortions aren’t much of a risk: families don’t really feel the need to limit the number of children (on the contrary often, because children are a workforce), and ultrasound technology for sex determination of fetuses isn’t as readily available as in rich countries or regions. When families want few children – as they do in more developed regions – or are forced by the government to limit their number of children (as in China), they will abort female fetuses in pursuit of a son.

Ultimately, only a cultural change will help. The son preference has to die out. Education probably will help, as it always does. Ending pernicious policies such as the one child policy will also help, but then overpopulation hysterics will have to be dealt with. This policy didn’t help stop population growth anyway. Other East Asian countries reduced population pressure as much as China without brutal policies.

Old customs and discriminating laws should also be abolished. Think of the dowry system, or inheritance rights. Stigmatizing abortion, especially sex selective abortion, will also help.

The Causes of Poverty (28): Family Structure

Almost 30 percent of children [in the U.S.] now live in single-parent families, up from 12 percent in 1968. Since poverty rates in single-parent households are roughly five times as high as in two-parent households, this shift has helped keep the poverty rate up; it climbed to 13.2 percent last year. If we had the same fraction of single-parent families today as we had in 1970, the child poverty rate would probably be about 30 percent lower than it is today. Isabel V. Sawhill and Ron Haskins (source, source)

These numbers seem to correspond to intuition. It’s harder for one person to raise children than it is for two. And the risks of ending up in poverty are therefore higher. However, some caution is needed when linking poverty to family structure. Also, perhaps family structure isn’t so much the cause of poverty as its effect. And then there’s the fact that some countries, such as the Nordic European ones, have low marriage rates and high out-of-wedlock birthrates, yet they are much more egalitarian and have lower poverty rates than the U.S. (source). Part of the reason for this is the more generous welfare systems (and higher taxes ) in Nordic countries. Another part is the fact that

in the Nordic countries it’s quite common for committed couples raising children to just not be married. In the US a child whose mother isn’t married is typically growing up without his or her father being present, which isn’t the case in Sweden or Norway. (source)

“Born out of wedlock” doesn’t necessarily imply “single parent”. It’s family structure, and the presence of two parents – not necessarily “biological parents” or parents of a different sex – that helps families and children avoid or escape poverty, not formal or legal marriage status.

Unmarried biological parents in northern Europe are more likely to stay together to raise the kid than married parents in the US. (source)

This quote isn’t intended to imply that unmarried couples are better than married ones. Again, what matters isn’t marriage as such but family structure. And the focus on family structure isn’t intended to imply that all single parents are bad. Even if there’s only one parent, descent into poverty isn’t destiny. It also depends on the parent. Poverty isn’t a mechanical result of a certain family structure, but family structure does count in many cases (a poor single mother, even with the best intentions and efforts, will perhaps do worse than a celebrity divorcee). Having two parents is extremely helpful.

Yet we shouldn’t forget that poverty has many causes and family structure is just one of them, and most likely not the most important one. Hence it’s very well possible that a society with extremely high rates of single parents and births out of wedlock experiences less poverty (including child poverty) than another society where the large majority of children are raised by two biological parents and the large majority of marriages doesn’t break down.

Here‘s a graph indicating that living with only one parent certainly doesn’t condemn children to poverty.

Lies, Damned Lies, and Statistics (19): Fun With Percentages

A certain company discovered that 40% of all sick days were taken on a Friday or a Monday. They immediately clamped down on sick leave before they realized their mistake. Forty percent represents two days out of a five day working week and is therefore a normal spread. Nothing to do with lazy employees wishing to extend their weekends. They are just as sick on any other day.

A more serious example, now, more relevant also to human rights:

The stunning statistic that 70% of black babies are born out of wedlock is driven, to be sure, by the fact that many poor black women have a lot of children. But it turns out it is also driven by the fact that married black women have fewer children than married white women. (source)

The fact that married black women have fewer children than married white women obviously inflates the percentage of black babies born out of wedlock. If married black women had just as many children as married white women, the proportion or percentage of black babies out of wedlock would drop mechanically. But why do they have fewer children? It seems it’s a matter of being able to afford children.

It’s well known that the black middle class has a lot less in the way of assets than whites of similar income levels – hardly surprising, given the legacy of generations of discrimination and poverty. But that also means that things that a lot of white middle class people take for granted – like help with a down-payment on a house when you have your first kid – are less available. Middle class black parents have less in the way of a parental safety net than their white equivalents, so they’re less likely to have a second kid. (source)

The 70%, when compared to the national average which is about 40%, may seem high, but it’s artificially inflated by the relatively low number of black babies in wedlock. So before you go out yelling (see here for example) that all the poverty and educational problems of African-Americans are caused by the fact that too many of their children are born and raised out of wedlock, and presumably by single parents (although the latter doesn’t follow from the former), and that it’s better to promote “traditional marriage” instead of affirmative action, welfare etc., you may want to dig a bit deeper first. If you do, you’ll paint a more nuanced picture than the one about dysfunctional black families and irresponsible black fathers.

Nevertheless, while the percentages may not be as high as they seem at first glance, it remains true that black babies still make up a disproportionate share of kids born out of wedlock. And if “born out of wedlock” means “single parents” (usually mothers) then this can be a problem. Although many single parents do a great job raising their children (and often a better job than many “normal” families), it can be tough and the risks of ending up in poverty are much higher. And yet, even this is not enough to justify sermons about irresponsible black fathers. Maybe the misguided war on drugs, racial profiling and incarceration statistics have something to do with it.

Religion and Human Rights (13): Same-Sex Marriage and Religious Liberty, How Much Can We Discriminate?

Same-sex marriage to me is a no-brainer. Although international human rights law doesn’t explicitly grant gays and lesbians the right to marry, the notion of equal rights can be used to counter discrimination of homosexuals, including discrimination of marriage rights. Article 2 of the Universal Declaration states that everyone is entitled to all the rights set forth in it, without distinction of any kind. And the right to marry is recognized in article 16.

Furthermore, article 7 outlaws discrimination. On the basis of articles 2 and 7, many countries have enacted anti-discrimination legislation which outlaws racial discrimination, gender discrimination, sexual orientation discrimination and sometimes other types of discrimination as well. Such legislation punishes citizens who discriminate other citizens, for example restaurant owners refusing access to homosexuals, Jews, African-Americans etc.

However, the Universal Declaration and many constitutions also grant the right to religious liberty. Article 18 states that everyone has the right to freedom of thought, conscience and religion. Now, I think it’s fair to admit that freedom of religion and anti-discrimination laws can sometimes clash with each other (although the importance of such conflicts is often artificially inflated by opponents of same-sex marriage, see here for example). Anti-discrimination laws can force people to do things that violate their religious beliefs, if these beliefs require them to discriminate. Such laws can, if we stick to the previous example, force restaurant owners, who believe that homosexuals and Jews are sinners, to open their doors to homosexuals and Jews. When people are forced to act against their religious beliefs – no matter how bigoted these beliefs – it is fair to say that their religious freedom and freedom of conscience and belief are violated. These freedoms are not contingent on the quality of beliefs. All beliefs and religions, even the most bigoted ones, deserve protection (as long as they don’t cause harm to others of course).

It is not uncommon to see contradictions in the system of human rights. This system is not a harmonious whole. I’ve covered this problem extensively here and here. Rights are not always compatible, in which case one has to decide which of the conflicting rights has priority (or “trumps the other”). The normal (but not the only) rule is the extent of harm caused by a limitation of one right or the other.

In the case of discrimination of people on the basis of their sexual orientation, anti-discrimination laws based on article 2 of the Universal Declaration (or relevant articles of a national constitution) come into conflict with religious liberty (based also on the Universal Declaration or constitutional provisions). Both rights are very important (and I say this as a non-religious person), so the decision in favor of one or the other will never be an easy one.

Take again the example of the restaurant owner. At first sight, the answer seems obvious: let the restaurant owner refuse entry. The harm done by forcing him to grant access is clearly greater than the harm of forcing homosexuals to find another place to eat. On top of that, the restaurant owner can rightfully claim that not only his religious liberty and freedom of belief would suffer from forced access, but also his right to property (and to use it as he pleases). However, on closer inspection, things aren’t so clear. The harm done to homosexuals is likely to be much greater than just a dinner inconvenience. If a restaurant owner is allowed to discriminate, then this sends a signal to others that discrimination is OK. Choosing the side of the restaurant owner is in fact choosing the side of discrimination and legitimizes discrimination, causing harm that is potentially very widespread. After all, in a great majority of cases of people refusing to do something because of their discriminatory beliefs, there is someone else available to do what they refuse to do. So allowing people to refuse in one case because there is someone else who will not refuse (another restaurant), opens the door to a great number of refusals, and hence to widespread discrimination.

Furthermore, many cases are much more complicated than the restaurant case. How about a doctor refusing fertility treatment to a lesbian couple (married or not)? Or a Muslim doctor refusing to treat a female patient? Or a Christian university refusing to grant a gay person a place in its dormitory? Or a Catholic adoption agency refusing to place children with same-sex couples (married or not)? It’s clear that in many of these cases, the rights of those discriminated should take precedence over the freedom of belief of those discriminating because the harm done by discrimination is greater than the harm done by outlawing discrimination.

We should also distinguish between refusal by private persons and refusal by public officials. It seems much less acceptable for the latter to refuse to grant their services to certain types of people. The government should never discriminate people on the basis of religious belief. Governments should be religiously neutral as much as possible, and should respect the separation of state and church.

Anyway, sometimes anti-discrimination laws will trump other rights such as the freedom of religion, and sometimes not. So equal rights for gays, including the equal right to marry, will not “kill” religious freedom as some on the right believe. If we can convince opponents of anti-discrimination in general and same-sex marriage in particular that the concerns of religious beliefs are taken seriously and are not systematically deemed of lesser importance compared to equality, then they may give up some of their opposition. After all, even in those cases in which the concerns of equality are deemed to outweigh the concern of religion, the harm done to religion is not of catastrophic proportions. No one will ever force a priest to marry anyone, or a church to modify its doctrine, or someone wishing to express a preference for “traditional marriage” to shut up. In all these discussions on same-sex marriages, it’s important to keep things in perspective. Hysteric reactions on either side aren’t helpful at all. Compared to other rights violations, this problem is a minor one.

Much of this concerns discrimination in general, not just discrimination in the application of the right to marry. It just happens to be the case that the ongoing efforts to reduce marriage discrimination seem to cultivate the fears of many religious people that anti-discrimination laws will impose even further restrictions on religious liberty when same-sex marriage is recognized by law. These fears, however, are not substantiated by the evidence of countries or states which have, sometimes long ago, recognized same-sex marriage. Another reason to put things in perspective, something which is clearly captured by this quote:

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion – all without extinguishing religious faith. Dale Carpenter (source)

Gay Marriage From a Human Rights Law POV

Do homosexuals have a right to marry according to the international human rights standards? Not explicitly. They do not even have the explicit right to be homosexual, but jurisprudence has established that homosexuals should not be discriminated. First of all, all human beings, whatever their convictions, practices, behavior etc., have the same rights. So killing or torturing or arbitrarily imprisoning people is always wrong. And if this is done because these people are homosexuals or something else is irrelevant.

Homosexuality is also protected by the right to privacy. Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.

And nothing is as private as sexuality.

Regarding the right to marry, article 16 states:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Sexual orientation is not mentioned as an unwarranted limitation. So the use of this article is a weak defense of gay marriage. But Article 2 states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The “such as” clause signifies that there may be other types of unwarranted distinction. See also Article 7:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

And from a non-legal POV: gay marriage is not necessarily a threat to the institution of marriage. A gay couple can be as serious about marriage and about raising children as a heterosexual couple. Those of us who care about the importance of marriage have much graver threats to deal with.