More polyamory fallout from the Supreme Court's gay marriage ruling

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It's been 2½ months since the Supreme Court's Obergefell decision for gay marriage nationwide, and articles about the decision's implications for polyfolks — is multiple marriage next? — have slowed down. For now. This isn't going away.

Here's a roundup of material I didn't collect earlier, followed by what some mover-and-shaker polyactivists have said. Click the headlines for the full articles.

And for easy reference, here are all articles about the Obergefell decision on this site (including this one; scroll down).


● One of the most talked-about reactions was a provocative piece in the New York Times by University of Chicago assistant law professor William Baude: Is Polygamy Next? (July 21, 2015):

...[Plural marriage] was hard to discuss candidly while same-sex marriage was still pending, because both sides knew that association with plural marriage, a more unpopular cause, could have stymied progress for gay rights.... With same-sex marriage on the books, we can now ask whether polyamorous relationships should be next.

There is a very good argument that they should. Justice Anthony M. Kennedy’s majority opinion in Obergefell did not focus primarily on the issue of sexual orientation. Instead, its main focus was on a “fundamental right to marry” — a right that he said could not be limited to rigid historical definitions or left to the legislative process. That right was about autonomy and fulfillment, about child rearing and the social order. By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry.

And while Justice Kennedy’s opinion does not explicitly discuss this possibility [and explicitly refers to "two" people in marriage repeatedly –Ed.], it is easy to see how future generations could read his language to include polyamory or plural marriage.... it is not hard to imagine another justice in 20 or 40 years saying that the assumption is similarly unenlightened.

Nonetheless, many supporters of the same-sex marriage decision reject the possibility of plural marriage with surprising confidence....

● In The Atlantic, staff writer Conor Friedersdorf writes The Case Against Encouraging Polygamy; Why civil marriage should not encompass group unions (July 9):

The law should, I think, allow groups of people to sleep in the same house, engage in group sex, and enter into contracts or religious arrangements of their liking. If a polyamorous family lived next door to me, I’d welcome them to the neighborhood and champion treating them with love and respect. But I think it would be imprudent to include their arrangement in civil marriage, with its incentivizing benefits, because if group marriage were to become normalized and spread beyond a tiny fringe the consequences for society could be significant and negative....

And then he quits talking about polyamory and mostly goes on about power abuse in traditional patriarchal polygamy. Sigh.


● At Real Clear Politics, Sean Trende, a co-author of last year's Almanac of American Politics, describes how the gay marriage movement won the hearts of a majority of Americans and Supreme Court justices, and why polygamists aren't up to that: Why Obergefell Is Unlikely to Lead to Polygamy (July 6).

Trende says gays won the marriage campaign by working four themes diligently and effectively: 1) "Individual autonomy/rights talk", 2) "They’re born that way", 3) "The power of familiarity" (friends, family, and celebrities coming out all over the place), and 4) "Great spokespeople."

He compares that to the low appeal of Fundamentalist Mormon boss-men in the desert arguing that Heaven subordinates women. "These [four] factors are not present for those in plural marriage, and seem unlikely (though not impossible) to emerge anytime soon."

But hey! Over here! Look at us! The polyamory movement long ago picked up all four of those themes to one degree or another, has shown it can do them, and is running with them.


● The libertarian Cato Institute argues for the decriminalization of polygamy in a piece that Newsweek picked up a week ago: Saying ‘I Do’ Multiple Times Shouldn’t Be a Crime (Sept. 1).

In Utah [as in most of the US], it’s legal to have an “open” marriage, and any number of unmarried consenting adults can live together, have sex with each other, pool their finances and describe themselves as being in a long-term polyamorous relationship. They just can’t use the “M” word....

● Writing for Religion Dispatches, William E. Smith offers a deeper historical perspective with lots of good links: Who's Scared of Polygamy? (July 17).

...[The current rumblings] of a possible polygamy debate do not seem to recognize that we’re in what I would call a reformation period of marriage. Nor do they seem to know that during the Protestant Reformation, which dramatically redefined marriage, polygamy was on the table. And, to me at least, it’s likely that (eventual) support from some branches of American Protestantism, drawing in part on this older Protestant debate, will complicate [expectations for] how a debate around the legalization of polygamy will come to pass.

...Let’s think for a minute about how same-sex marriage went from novel idea to law-of-the-land in just a few short decades. The ascent of same-sex marriage in the United States gained much (but not all) of its initial support from churches. Many local Unitarian Universalist (UU), Disciples of Christ, and United Church of Christ (UCC) congregations, and some Episcopal churches, for example, started blessing same-sex unions as far back as the 1970s....

...Even though almost no American Christians support [multiple marriage], there is no reason to think they could not come to do so, and to do so as rapidly as they did with same-sex marriage.... It would be rather interesting to see what the state of polyamory will be among churchgoers in 2040.

...Marriage has changed substantially and consistently over the past 70 or so years in the United States.... And this is hardly the first time marriage has undergone a rapid yet sustained change. I see the Protestants’ reformation of marriage during the sixteenth and seventeenth centuries as a particularly relevant historical analog. That reformation is important for, among other things, planting seeds inside the Christian tradition that may bear fruit in the form of pro-polygamy theology and practice.

● The Weekly Sift, a liberal news and analysis site, asks So What About Polygamy Anyway? (July 20) and raises the common "complication objection" (one I've often repeated myself):

If you’re worrying (or hoping) that some judge will legalize polygamy next week, stop.

...However you picture it, giving polygamy legal recognition would mean establishing legal infrastructure to answer questions that don’t come up in binary marriages. In a group marriage, can one spouse divorce the others, or does the whole relationship dissolve and need to be reformed? What’s the property settlement look like? Do all spouses have equal rights and responsibilities regarding the children, or do biological parents have a stronger legal bond? In a Biblical polygamous marriage, are all the wives equal, or does the first wife have a special role?

...Consequently, a court can’t simply order to a county clerk to issue a three-person marriage license. The judge would have to rewrite big chunks of the legal code, which a judge is not equipped to do, even if one thought he or she could get away with asserting that kind of power.

● As for those big new issues in the legal code, conservative blogger Owen Tew (Greg Richter) conjured up some colorful detail: Polyamorous Marriage Train Coming in Too Fast for the Curve (July 1).

And if these marriages are just like our current traditional marriage system, some of them are going to break up.... What percentage of your property goes to a side spouse who divorces you when you are in another polyamorous marriage of five people? Does he/she get one-half of one-fifth of what you own? What do the other four have to say about you giving up a piece of actual property — jointly owned — when none of them were even a part of this side marriage?

And that's just assuming there were only the two of you in the side marriage. What if there were a couple of more in that marriage. I'm getting a migraine just from the fact that the math exists to make the calculation.

While same-sex marriage might work just as easily as traditional marriage in a legal sense, going any further is going to throw the train off the rails. Conservatives might want to stand aside and watch the wreck.

● But why, exactly, is the state in the marriage business at all? Froma Harrop, a syndicated newspaper columnist, argues Get government out of marriage altogether:

There's a more basic question here: Why is government in the business of conferring a right to marry at all? What is it about this thing called marriage that justifies a grab bag of legal benefits? That would include tax advantages, inheritance rights, hospital visitations and the ability to make end-of-life decisions for one's spouse....

If you want to pursue this idea you can start at Unmarried Equality and the Marriage Privatization Wikipedia entry.


● Would multi-marriages really be too complicated for the law to handle? Not necessarily, says Elisabeth Sheff on her Psychology Today site: How Society Could Accommodate Multi-Partner Marriages (July 20):

In my last blog I explained why the sky won't fall even if gay marriage sets the stage for plural marriage. For this blog, I examine the ways in which marriages might flex to fit families as they really are, including multiple-partner relationships....

● Billy Holder — longtime polyfamily member, a very public poly-education activist (here he is on CNN), and the principal founder of Atlanta Poly Weekend and the Relationship Equality Foundation — put out a strong statement after the Obergefell decision: Marriage Equality (July 1):

I have some very strong personal feelings about the institution of marriage. One of which is to do away with it altogether and go to an individual relationship-contract system. HOWEVER, I also think that this is a BAD idea to discuss as the next step. Here's why....

I think our conversation needs to be about the individual's choice to structure FAMILY as they see fit. Giving the individual the power to build what works for them.... By ADDING a system that grants equal right and protections to those who choose to be bonded in a way different than that which exists....

If we are going to advocate for Relationship Choice and empowerment of all styles of relationships, then we need to do so in all things.

To this Ricci Levy, director of the Woodhull Sexual Freedom Alliance, added,

In Woodhull’s Family Matters Project we aren’t working to eliminate marriage. We are working to forward the human right to family. For those who seek marriage as a way to memorialize or sanctify their union, they should be able to do so.

● Robyn Trask, director of Loving More, published a statement and press release on July 1: Is Polyamorous Marriage on the Horizon?

For many in the Loving More and polyamory community, marriage is a hotly debated issue. Many polyamorous people simply want the government out of their relationship choices and many want some sort of legal recognition or ability to marry more than one person. In the 2012 Loving More Survey, some 66% of over 4000 self-identified polyamorous respondents said they would want to marry multiple people if such marriages were legal, and an additional 20% said they would consider it. So clearly it is an issue that needs to be considered....

● Longtime Bay Area poly activist Dawn Davidson posted on her site Love Outside the Box: Are We Next? Polyamory & Marriage Equality:

...Leaping directly to “poly marriage rights” — or even more so, to “we should just abolish marriage!” — is unlikely to be a winning strategy, as far as building strong coalitions and being able to enact true social change. It’s likely to feel very divisive, and ungrateful to those who just won this long battle, to turn around and say that “we” (whoever that is) would like to dismantle the very rights for which they just fought! So we need to find ways to build bridges, and to emphasize connections and shared values. I think the best way to do that is to focus on recognition of diverse families.

One very important point, in my view, is that this decision was based in part on the idea that children should have the right to protection without reference to the sexual orientation of their parents. I think that’s a strong lever for future positive change: no child should be discriminated against based on any characteristic of their parent/s, whether that is religion, color of skin, sexual orientation, or number of adults in their household. Therefore, the focus of our collective efforts should be on the right to have one’s family recognized, no matter what that looks like, and for the individual — not the state only — to determine whom they recognize as “family.”

● And from Jessica Burde, author of Polyamory and Pregnancy and the forthcoming The Poly Home, A New Chapter in Poly Life (early July):

This sudden spurt of attention to the legal side of polyamory is changing the way polyamory is discussed in the US mainstream.

Speaking for myself, I feel that now is not the time to focus on plural marriage. If only because (in addition to reasons I've gone into elsewhere) the right wing in the US is looking for a new scapegoat. The LGBT community is no longer an effective scapegoat. Their attempts to mobilize their base around the issue of immigration have failed. And their focus on contraception, abortion, and other "women's" issues are running out of steam.

I don't think the polyamory community in the US is prepared to wage a battle for public opinion with the US right wing media machine. However, the recently filed court case by a polygamist family in Montana may take the choice out of our hands....

I dunno — part of me says bring it on! There's precedent. Keeping polygamy criminal became a national issue in Canada in 2010–11, following reports of Fundamentalist Mormon abuse of women and children in British Columbia. In response, Canadian polyfolks organized the Canadian Polyamory Advocacy Association, got their foot into the the door of the court case, and won the explicit decriminalization of polyamorous cohabitation, even though the polygamists lost.

An important side effect of this was that, through the media, Canadians gained a picture of polyamorists as 1) responsible civic-minded freedom advocates, perhaps sometimes 2) "born this way", who became 3) a more familiar presence, with 4) excellent spokespeople.


● All articles on this site about the Obergefell decision (including this one; scroll down).

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