Poly marriage or poly freedom?

With the Supreme Court now deliberating two gay-marriage cases, there's lots of new speculation across the political spectrum about whether polygamy and polyamorous marriages are next. The usual slippery-slopers have their say. For instance, this is from a CNN.com commentary by Harvard law professor Robert P. George, Rhodes Scholar Sherif Girgis, and Ryan T. Anderson of the Heritage Foundation:

Gay Marriage, then Group Marriage

...if marriage were simply about recognizing bonds of affection or romance, then two men or two women could form a marriage just as a man and woman can. But so could three or more in the increasingly common phenomenon of group ("polyamorous") partnerships. In that case, to recognize opposite-sex unions but not same-sex or polyamorous ones would be unfair — a denial of equality.

There's lots more like that, often less civil. But the less hostile are also taking a look. My last post linked to a long VICE article that asked many actual sources close to the polygamy and polyamory worlds and quoted my own skepticism about the practicalities of state-sanctioned group marriages.¹

Elsewhere, the noted Georgetown law professor Jonathan Turley is representing the Kody Brown "Sister Wives" family in their attempt to overturn Utah's anti-polygamy law, which may be polygamists' best shot ever for a victory in court. Utah bans multiple cohabitation regardless of whether the people claim to be married. The Browns are not seeking state recognition for their plural marriage, they're seeking to have it not be criminal. But Turley spoke in wide-ranging terms on National Public Radio a couple of days ago:

In Light Of High Court Arguments, What Does Gay Marriage Tells Us About Polygamy?

...Turley said that polygamy is now where gay marriage was a decade ago, when the Supreme Court decided Lawrence v. Texas, which stopped states from prohibiting sexual acts between same-sex couples. The implication is that polygamy will move forward in time.

"You cannot defend a new civil liberty, while denying it to others. I think there's a grander more magnificent trend that can seen in the law and that is this right to be left alone," Turley said. "People have a right to establish their families as long as they don't harm others."

Background article and audio. Transcript. (March 28, 2013).

Among the 125-member Polyamory Leadership Network (PLN), a long discussion got going on whether people want state recognition of multiple marriage or not. Long story short: The general feeling was that we would prefer less government role in marriage and relationships overall, rather than a new category of state recognition, regulation, and inevitably control. For instance, people argued that access to health care should not depend on being married, never mind whether to one person or three. Your boss shouldn't have the power to threaten you over your family structure whether you're with a person of the same sex, two, or none. Child custody should depend on the best interests of the child, not the adults' documents or a judge's animus.

Some PLNers disagreed, but many felt that this approach to poly rights — better rights and justice for all, rather than ushering another small group through the marriage-privilege gate — makes more sense to pursue and would appeal to broad swaths of society, such as singles. Of course, that's what many gay/queer folk were saying before the marriage movement took off and kind of co-opted the situation.

Coming out of this discussion, PLN member and social theorist Angi Becker Stevens has put up an article with a somewhat different view, boldly defending poly marriage aspirations. It's on RoleReboot ("Make Sense of Men & Women"):

I'm Polyamorous: So What If Same-Sex Marriage Is A Slippery Slope?

By Angi Becker Stevens

...I understand the anger people feel about comparing same-sex relationships to pedophilia and bestiality. But as a polyamorous woman, who honestly would like to one day have the right to legally marry both of my partners, it's disheartening when same-sex marriage advocates respond to this rhetoric by invalidating the idea of multi-partner marriage, insisting that it is nothing at all like same-sex marriage and will never, ever happen.

I do believe that there are some practical reasons why legal same-sex marriage cannot immediately lead to legal multi-partner marriage. The legal framework of two-party marriage already exists, and it is a simple process to apply the same rights and regulations to same-sex couples. Legally defining multi-partner marriage would be a much more complex process with regard to things like taxes, property rights, and child custody. I don’t object to this necessary legislative process being pointed out as a reason why multi-partner marriage will not simply happen overnight once same-sex marriage is federally recognized. But I do object to ethical arguments against multi-partner marriage, which respond to “slippery slope” arguments by essentially throwing polyamorous folks under the bus.

One of the arguments frequently given by same-sex marriage supporters against multi-partner marriage hinges on what we know of people currently practicing polygamy in a religious context. Polygamy is patriarchal and abusive, the argument says.... But this brand of polygamy does not resemble my polyamorous relationship any more than a fundamentalist, traditionally-gendered, monogamous marriage resembles a marriage that is progressive and egalitarian in nature.

...I am frequently surprised and discouraged by the frequency with which arguments against polyamorous marriage — made by supporters of same-sex marriage — resemble classic arguments against gay marriage. I have heard many times, for example, that polyamory is a “lifestyle choice,” and therefore deserves no legal rights or protections. And I have also heard, more times than I can count, the argument that polyamory is not love, merely a sexual practice....

At the moment, few polyamorous people are really interested in fighting seriously for marriage rights.... We would be happy just to see our loves and our families treated as valid by a decent portion of society. But every time a supposedly progressive, “open-minded” person supports same-sex marriage by arguing that such marriage has nothing at all in common with the sexual deviancy of polyamory, we are moved further away from that validation....

What we need is solidarity between all people who are oppressed and marginalized as a result of who they love and how they form families.... After all, every gain in social justice throughout history could be called a “slippery slope” toward the next. This is what we call “progress,” and it should be celebrated, not feared.

Read the whole article (March 28, 2013).

My own take on slippery-sloping, once again:

If you accept the framing of civil rights and social acceptance as a slippery slope down, you've lost the debate before you open your mouth. Slipping on a slope is a painful accident that leads downward. Instead, reframe it as a stairway up. Each step is a deliberate, effortful, carefully chosen advance toward a more humane, just, enlightened world.

With that framing, you can consider which steps are actually upward, and which ones to take.

Or as Tree of Polycamp Northwest 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."

Even some big-time conservatives, disturbed by the legal progress of gay marriage, are asking Should Government Get Out of the Marriage Business?

If you are interested seeing relationship rights and freedoms widened, check out the Family Matters Project of the Woodhull Sexual Freedom Alliance. The Family Matters Project is "dedicated to advancing, respecting and protecting the human right to family by eliminating discrimination based on family structure and relationship choices." Woodhull will hold its annual sexual freedom summit September 19–22 just outside Washington, DC.

And also see the thought-provoking Beyond Marriage statement on this topic.

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1. Here's my standard cut-and-paste on this:

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 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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