10th Circuit gay marriage ruling: relevance for poly case?
On Wednesday the federal 10th Circuit Court of Appeals, which includes Utah in its jurisdiction, upheld a Utah judge allowing gay marriage. This is the highest court yet to declare that same-sex marriage is a right. Other federal courts at this level are also considering the issue. Their decisions will pave the way for it to go to the Supreme Court for a nationwide ruling.The decision was 2-1, by a three-judge panel (subset) of the full court. Here's their complete ruling.
This also happens to be the same federal appeals court that will hear any appeal of the Kody Brown family's polygamy/polyamory case.
Remember about that? Last December a Utah federal judge ruled for the Browns, saying that Utah's law against bigamy (merely living with another partner while married) was overly broad, and that while the state does not have to recognize multiple relationships as marriages, it cannot outlaw them. Here's my coverage of that ruling with links to more. The State of Utah has not yet appealed the Brown ruling; another part of that case is still pending.
After Wednesday's gay-marriage ruling, some buzz went around the polywebs that it might ease the way to recognition of multiple marriage, based on language such as this:
We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class membership of the individual exercising the right.
To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question
[A state] cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen’s decision
Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.
But to many others, that looked like a stretch.
Longtime legal observer In Finity (infinity_8p AT yahoo.com) read the whole ruling and posted this on the PolyLegal Yahoo group (reprinted with permission):
10th CCA OKs SSM, But Slams Polys
Poly activists will be keenly interested in this steaming load of bullshit from pages 44 and 45 of the ruling:
Utah’s ban on polygamy, for example, is justified by arguments against polygamy. See Utah Const. art. III (“[P]olygamous or plural marriages are forever prohibited.”); see also Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985) (concluding that “the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage” based on its “commitment to a system of domestic relations based exclusively upon the practice of monogamy” which is “inextricably woven into the fabric of our society” and “the bedrock upon which our culture is built” (quotation omitted)).
The 10th Circuit is basically saying that banning same-sex marriage is invidious discrimination and unconstitutional, but adding dicta (text that is not directly relevant to the ruling and thus isn't legally binding) that is dripping with prejudice against polys, hypocritically denying that the very same type of prejudice and bigotry is unconstitutional when those icky polys are the ones being discriminated against.
Despite this disrespectful dicta, it should be kept firmly in mind that tangential statements like this can be and often are reversed when the very same court has to face the issue directly. The 10th Circuit did not face the issue directly in Potter v. Murray City - that case did not raise equal protection and due process objections to a ban on poly marriage. And another 10th Circuit case, Bronson v. Swensen (500 F.3d 1099 (2007)), also failed to pursue due process and equal protection attacks against Utah's prohibition of poly marriage. Both cases relied instead on legally dubious attacks such as the right to free exercise of religion, which failed miserably. As of today there has been no competent, sophisticated attack against any legal prohibition of poly marriage in any U.S. federal court.
Today's 10th Circuit decision does mark an important milestone in the fight for same-sex marriage. This is one of the many important same-sex marriage decisions that will be of great interest to those poly activists preparing to competently attack the constitutionality of legal prohibitions against poly marriage. It's well worth reading!
I have to disagree with In Finity's hot response. Right after the section he quoted above, the court writes "Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class." It seems clear that the court was not denouncing polygamy/polyamory as such, but was describing past cases in which marriage was denied to certain classes based on actual arguments of harm given as justification. The court said that such precedents do not allow the banning of gay marriage, because in this case, the arguments for harm fail. The soundness of the arguments against polygamy and marriage or minors is not considered here, merely that the court had used such arguments to justify a ruling against a class.
Meanwhile, the Brown family's reality show Sister Wives just began its fifth season.
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The court said "Utah’s ban on polygamy, for example, is justified by arguments against polygamy". *IS* justified. The court absolutely is slamming poly marriage here.
And the court is not referring here to the conclusion(s) stated in some other court's prior case(s), but rather to its own conclusion(s) in its own prior case(s). It is reiterating its own anti-poly rulings of the past and then categorically stating that in its opinion, banning poly marriage IS justified.
The court is not arguing here that such precedents do not allow the banning of gay marriage. Instead, the court is arguing here that although gay marriage cannot be banned, the banning of these other types of marriage IS justified. This is an attempt to ensure that their opinion in this case cannot be relied upon by advocates of poly marriage as an argument in their favor.
There is an ongoing discussion among polyamory activists regarding a legal model of polyamorous marriage (i.e., the extension of the legal concept of marriage to include polyamorous families). One debate centers around the relative merits of an all-with-all approach to marriage (whereby three or more persons are all joined together at the same time within a single marriage) and dyadic networks (whereby existing laws against bigamy are revised such that people are perfectly free to be concurrently married to multiple other persons, provided that each such new marriage is preceded by a legal notification regarding the pending new marriage to all those to whom one is already married; failure to provide that legal notification would then constitute the updated crime of bigamy).
Dyadic networks would result in what might be thought of as a "molecular" family structure — one which might be best represented by the molecular diagrams commonly used in chemistry. In this way, marriage would remain a dyadic relationship (i.e., a relationship between two persons), thus minimizing any changes to the existing system of legal marriage, but the introduction of concurrency would provide access to legal marriage for polyamorous families.
Dyadic networks can correctly represent any situation associated with the "all-with-all" paradigm, as well as many situations that the "all-with-all" paradigm cannot deal with. A "complete" dyadic network would take the form of a complete graph, in which every person is (pairwise) married to every other person, thus correctly representing any situation associated with the "all-with-all" paradigm. A dyadic network may also represent situations in which some persons are (pairwise) married to some members of the dyadic network but not to all of them ("V" and "N" geometries, for example) — these are situations that the "all-with-all" marriage paradigm is unable to accurately represent.
The "all-with-all" marriage paradigm assumes that everyone is equally involved with everyone else in the group — one global marriage agreement has to fit every participant at the same time. But dyadic network marriages separately define the terms of each specific 2-person relationship, and these dyadic marriages do not typically happen at the same time (A marries B, B marries C ("V" structure), C marries D ("N" structure), etc. — thus, the shape of the dyadic network dynamically changes over time). Participants in a dyadic network need not even be aware of the specific terms of marriage agreements existing elsewhere within the same dyadic network.
Under the "all-with-all" marriage paradigm, when irreconcilable differences arise there can be no alternative to a complete separation — one person cannot divorce another without ending the entire marriage agreement for everyone involved. But dyadic networks can function in much the same way as watertight compartmentalization functions in naval vessels, i.e., to limit and contain damage. An intense disagreement between two persons takes place within the context of their marriage, and need not greatly involve (or threaten) the relationships between other participants. Within a well-connected dyadic network, a divorce between two persons need not result in a complete separation of the network — for example, a dyadic network with triangle geometry would simply turn into a dyadic network with "V" geometry.
An "all-with-all" marriage can only exist or cease to exist. In contrast, the shape of a dyadic network can dynamically change over time. Divorces subtract connections, and marriages add connections. The dyadic network itself either changes shape, separates into two dyadic networks, or merges into another dyadic network, depending on the precise nature of the newly added or subtracted connection.
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The maximum size of an "all-with-all" marriage is limited by the fact that every participant must be aware of the existence of every other participant (otherwise the global marriage contract would be invalid, because it could not satisfy the legal condition known as a "meeting of the minds"). But since a dyadic network relies only upon every participant's local knowledge of his or her own direct partners, its size is theoretically unlimited. The dyadic network paradigm is so powerful that it is theoretically capable of managing a situation in which every adult on earth is legally joined together in a single enormous dyadic network. Thus, with the dyadic network model, the idea of "many loves" is directly translated into a practical reality, and the "infinity" symbol (representing love without limits) is directly matched by a marriage model capable of handling an infinitely large number of participants.
Implementing Dyadic Networks
Within the United States, 41 states (82%) use the "equitable distribution" financial model, which is highly compatible with dyadic networks. But there are also nine other states (18%) with a financial model that is incompatible with dyadic networks - these are collectively referred to as the "community property" states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin).
The implementation method for the "community property" states is that the dyadic networks model will simply coexist with the old "community property" monogamy model. New marriages will automatically default to the dyadic networks model, but if the couple prefers the monogamous "community property" model then they have the option of selecting that model instead.
Consider, for example, the existing marriage laws of Alaska. Alaska is an "equitable distribution" state, hence couples who marry in Alaska will marry under the "equitable distribution" model by default, but these couples can instead elect to marry under the "community property" monogamy model if they wish (they do this by executing either a community property agreement or a community property trust).
Alaska thus constitutes an existence proof that both financial models can peacefully coexist within the same U.S. state's legal system. Alaska's example shows that even community property states can easily be modernized to accomodate dyadic networks.
Polyamorous Committment
The Dyadic Networks model of polyamorous marriage raises important questions related to marital commitment. With a single dyad, the situation is simple; each spouse commits to support and protect the other, and the logic of conventional monogamous marriage applies. However, when multiple dyads intersect in a dyadic network, how exactly does the commitment process work?
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To understand this, let us consider the parent-child relationship. In the parent-child situation, the support commitment exists only in one direction - from parent to child. When there is a single parent, the child has a single source of commitment, and all protection must come from that source. However, when there are two parents, they are jointly responsible for meeting the child's needs. The precise arrangement is worked out somehow, and provided that the child's needs are being met the law has no need to intervene. If the child's needs are not being met, then debt collection methods such as garnishing wages, seizing assets, etc. can and do occur in order to ensure that child support takes place. These actions are typically proportional to income and/or wealth, so the wealthier parent will pay more. Where a parent has commitments to multiple children, the parent must faithfully carry out his or her responsibilities to each and every child. Although it may sometimes seem that the needs of children are unlimited, this is not actually the case, and once a child's needs are satisfied (a certain amount of food, shelter, medical care, etc.), all parents of that child may regard their commitments as being satisfied with respect to each need for which adequate provision has been made, regardless of which parent(s) actually did the work of satisfying that need.
Turning now to commitment in the dyadic network model, this can be understood as a bidirectional version of the parent-child model. Each dyad represents a commitment of each spouse to the other. Thus, in a V configuration, the two partners at the ends of the V each rely upon commitments from the single partner at the center of the V (the "pivot") - each of them has one spouse. The "pivot" partner can rely upon two commitments, one from each of the two partners at the two ends of the V - the pivot partner has two spouses. If the pivot partner is incapacitated, he or she is in a position comparable to that of a child with two parents - two people are committed to assist him or her and must do so up to the point at which the pivot partner's needs are satisfied. If one of the partners at the end of the V is incapacitated, he or she has only one spouse to rely upon - the pivot partner, who is fully responsible for meeting the incapacitated partner's needs up to the point at which that partner's needs are satisfied. If both partners at the end of the V are incapacitated, then the pivot partner is in a position comparable to that of a single parent with two sick children - he or she must meet the needs of both.
Let us now consider whether the commitment relationship is "transitive" - if A is committed to B, and B is committed to C, does this mean that A is committed to C? No, this is not the case. C can legally rely only upon the commitment of B and has no legal basis to expect or receive a commitment from A. Nor can A rely upon the commitment of C - that could happen only when and if A directly married (mutually committed to) C. However, suppose that C's needs are so large that B is thereby driven into bankruptcy and becomes destitute. Then B can rely upon A's commitment to provide B with a certain minimal level of support (food, shelter, medical care, etc.). Thus C's needs can have an effect on B that causes A to provide more support to B than would have been the case had C not needed to draw heavily upon B's commitment.
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Hence, under the dyadic networks model, positive effects arise as a result of multiple commitments. When there is only a single dyad, there is a substantial risk that the size of the commitment will exceed the capacity of the committed. However, when each person is linked to multiple other partners in a dyadic network, this has the effect of bringing in additional capacity to meet any needs that may arise. Three or four spouses may be easily able to carry a commitment load that would have quickly driven a single spouse into bankruptcy.
The analogy to parent-child relationships carries over into other situations as well. Just as it would be improper to discriminate against a parent for having too many children (or too few children), so it would be improper to discriminate against a person for having too many or too few spouses. But with each additional child comes an additional commitment, and the same is true of an additional spouse. Adding another child to one's health insurance coverage will usually result in an increased monthly charge for the insurance, thus adding another spouse would probably have a comparable effect. But a child, or a spouse, only needs to be covered once, regardless of how many parents, or spouses, are available to provide that coverage. Also, a spouse may be economically self-supporting and thus able to pay for his or her own health insurance, so in this respect the total support cost for an additional spouse would then be zero.
Having drawn lessons from the parent-child relationship and applied them to dyadic networks, let us now draw a lesson from dyadic networks and apply it to the parent-child relationship. Just as there is no inherent reason why a person should not have more than one spouse, so there is no inherent reason why a child should not have more than two parents. When the law of marriage is updated to legally support dyadic networks, the existing adoption mechanism can be used as a means by which additional commitments to children can be created. For example, a single dyad may have already produced two children when each member of the dyad marries a third partner, thus creating a triangle. The newest member of this dyadic network can then execute two adoptions to become the third parent of each of the dyad's two children. Hence, in this situation, each of the three adults now has two spouses and two children. To the extent that any legal barriers might hinder the use of adoption in this manner, such legal barriers would also need to be direct targets of polyamory's legal activism (in addition, of course, to updating the law of marriage to support dyadic networks).
This N-parent situation has already been raised in the New York Times (When 3 Really Is A Crowd, July 16 2007, http://www.nytimes.com/2007/07/16/opinion/16marquardt.html): “On April 30, a state Superior Court panel ruled that a child can have three legal parents. […] Arthur S. Leonard, a professor at New York Law School, observed, 'I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation.' […] As one advocate of polygamy argued in Newsweek, 'If Heather can have two mommies, she should also be able to have two mommies and a daddy.' If more children are granted three legal parents, what is our rationale for denying these families the rights and protections of marriage?” Our firm answer: there cannot be any legitimate rationale for the unconstitutional denial of this legal protection to polyamorous families.
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The New York Times op-ed raises a question: “Conflicts will undoubtedly arise when three parents confront the sticky, conflict-ridden reality of child-raising, often leading to a nasty, three-way custody battle. Even if they part amicably, they may still want to live in three different homes. In that case, how many homes should children travel between to satisfy the parenting needs of many adults?” The legal answer has been provided by New York Law School Professor Arthur S. Leonard (Pennsylvania Court Finds Three Adults Can Have Parental Rights, May 01, 2007, http://newyorklawschool.typepad.com/leonardlink/2007/05/pennsylvania_co.html): “[...] the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children.” In the event of divorce, family law judges will calculate child support obligations and distribute visitation rights in accordance with the best interests of the child(ren).
There is no good reason to deny the polygamous freedom to marry as a necessary part of full marriage equality. Citing abused by people like Warren Jeffs is no more legitimate than citing abusive self-professed monogamists to ban monogamous marriages.
In response to the first commenter, I think the wording leaves it unclear whether the court is "slamming" poly marriage. It could easily be a poor choice of words intended to convey that lawmakers used these arguments to justify the ban, without taking a stance on the validity of those arguments.
It hinges on whether they are using "justified" as a verb or as a descriptor. It can read either as "the ban is justified" = a justified ban, or "the ban is/was justified by lawmakers" by using these arguments.
The paragraph goes on to state: "Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class."
Likewise, it doesn't appear to be saying whether it is or is not justified in fact, merely stating that, ""these arguments may be used as a justification for" and contrasting that with same-sex marriage, for which they find "appellants fail to advance any argument against same-sex marriage that is based specifically on its alleged intrinsic ills."
Look at the difference: "barring minors from marriage MAY BE justified" vs. "Utah’s ban on polygamy, for example, IS justified"
It's perfectly clear that they are slamming poly marriage here.
From footnote #17 of the earlier 10th Circuit decision Potter v. Murray City:
" Monogamy is inextricably woven into the fabric of our society. It is the bedrock upon which our culture is built. Cf. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978) (marriage is foundation of family and society; "a bilateral loyalty"). In light of these fundamental values, the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship."
But as clearly explained in the above comments explaining the theory of dyadic networks, marriage as "a bilateral loyalty" is in fact completely compatible with poly marriage.
An orthogonal view:
Now, I am strongly in favor of same sex marriage for the simple reason that if the State is going to be in the marriage business then the access should be universal. However, I really don't think the State has any business dealing with marriage licenses at all.
The State interest is in the welfare of children (which is covered under paternity/maternity law whether the parents are married or not) and the ownership of property (which is covered under contract law, particularly partnership agreements). There is absolutely no need for State sanctioning of any type of marriage, and they do a piss-poor job of it.
So the State should butt out! If a couple, or polyamorous group, want to contract to share a home and they can find a cleric (of whatever faith is comfortable to them) then the cleric can bless the union as a marriage. The State can protect the Peoples' interest in the welfare of children and property ownership.
Thus marriages should be a religious rite, not State sanctioned; atheists shouldn't mind the exclusion as they don't see a point to religious rites anyhow, or can find a cleric that makes their family happy.
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