At U.S. Senate hearing, big day today for poly threat to America

Near the top of the news this morning is President Obama's announcement endorsing the repeal of the 1996 Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages performed by the states. Today the Senate Judiciary Committee holds a hearing on the Respect for Marriage Act, a measure to repeal DOMA. The committee is chaired by Sen. Patrick Leahy (D-Vermont), a hero of mine for 30 years. It will hear from a variety of people pro and con — and on the con side, the threat that polyamory poses to the nation will be front and center, by name.

Testifying about this will be Ed Whelan, president of the conservative Ethics and Public Policy Center. From his planned testimony:

...Further, the principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage clearly threaten to pave the way for polygamous and other polyamorous unions, especially via the judicial invention of a state constitutional right to polyamory. If the male-female nature of traditional marriage can be dismissed as an artifact and its inherent link to procreation denied, then surely the distinction between a marriage of two persons and a marriage of three or more is all the more arbitrary and irrational.

I've long argued that legalized polyamorous marriage is not on the near horizon partly because of low demand but mostly because, unlike gay marriage (which maps directly onto the legal structures that exist for straight marriage), multiple marriage would require courts to develop a vast new body of law and precedent.^[1] Whelan addresses this point directly:

The administrative burden of allocating the benefits of marriage among the members of a polyamorous union so that they would not exceed those of a two-member union is surely insignificant in the face of the polyamorists’ asserted right (in the language of Planned Parenthood v. Casey (1992)) “to define [their] own concept of existence, of meaning, of the universe, and of the mystery of human life.” Indeed, it’s doubtful that any further sliding down the slippery slope would be necessary to get to polyamory: unlike the novelty of same-sex marriage, the polygamous version of polyamory has been widely practiced throughout history (and is therefore arguably up the slope from same-sex marriage)....

Read Whelan's whole post (July 19, 2011).

Put polyamory senate into Google News in the next several days and you'll probably get lots more.

Conservatives have stepped up their play of the polyamory card since New York State enacted same-sex marriage last month. (The first gay marriages there begin this Sunday, July 24th.) For instance, from Cornell Law School professor William Jacobson:

...In the same-sex marriage debate, there were some stupid slippery slope arguments, for example, that eventually you would have a right to marry your dog.

But when it comes to polyamory, the slippery slope argument had a sound footing and went something like this: Once society moves away from the traditional definition of marriage as being between one man and one woman, why stop at one-and-one? If loving each other and having a healthy household in which to carry on one’s life, and in some cases to raise children, is the standard, then on what basis does one deny three or more people who meet those qualifications the right to legal recognition by the state as a marital unit, with all the benefits that accrue?

The polyamory slippery slope argument was met with derision precisely because it raised a legitimate point....

Read his whole article (June 26, 2011).

Once again, as I've said before about the slippery slope argument:

If you accept this framing you've lost the debate before you open your mouth. Slipping on a slope is a painful accident that leads down. Reframe the scene as a stairway up — in which each step is a deliberately chosen advance toward a better, kinder, freer, more humane world.

Or as Tree (of Polycamp Northwest fame) once put it, awkwardly,

Giving blacks the vote, women the vote, contraception — it's all a slippery slope to a place of better social justice and acceptance.

P.S.: Slippery slopes work both ways (cartoon).

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[1]. As I've written before:

Same-sex marriage is simple and, from a structural point of view, not legally innovative. That is, it maps exactly onto the vast legal regime that's already well developed for straight marriage. (This has been true ever since courts started regarding men and women as equal parties in marriage.) By contrast, state recognition and regulation of poly relationships would require many new legal structures, precedents, and policies.

How would the law mandate, for instance, property rights and responsibilities in partial poly divorces? What about the rights and responsibilities of marriages that merge into pre-existing marriages? Setting default laws for multiple inheritance in the absence of a will, allocating Social Security benefits... it goes on.

And because there are many different basic kinds of poly relationships, compared to only one basic kind of couple marriage, each would need its own legal regime — and we know how good the state is at sorting out complicated personal realities.

Moreover, unlike couple marriages, poly relationships can change from one kind to another kind while continuing to exist. An equilateral triad can become a vee or vice versa, or something in between. The flexibility to adapt — to "let your relationships be what they are" — is a core value in the poly circles I know. How would the state keep up with your particular situation?

I've also heard it argued that opportunities would abound for unscrupulous people to game the system in ways that the law couldn't easily address: for people to pretend that their poly relationship is a different kind than it really is, or that they're in poly relationships when they're not. For instance, could gang members group-marry to gain immunity from each other's testimony?

In polyfolks' discussions that I've been in, the talk comes around instead to business-partnership models for poly households, such as subchapter-S corporations or family LLCs or LLPs. These are already well developed to handle a wide variety of contractual agreements between any number of people. (Though they have to be maintained properly, with formal annual meetings and such, or they lose their validity.)

Looking further ahead: Good law follows reality rather than precedes it. Fifty or 100 years from now when poly households are commonplace and their issues are well understood, I'm sure an appropriate body of law will have grown up to handle the issues that arise. At least that's how it works when civil society is allowed to go about its business, free of religious or ideological compulsion.

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