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.
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