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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Jonathan Turley: The trouble with the ‘dignity’ of same-sex [and poly] marriage

Washington Post

Jonathan Turley is the constitutional expert at George Washington University who represents the Kody Brown polygamous family (of "Sister Wives" fame) in their fight against the State of Utah. In the Sunday Washington Post today, he cites the rights and dignities of us polyamorists (yay!) but presents a different slant on the Supreme Court's gay-marriage decision.

As in, be careful what you wish for.

The trouble with the ‘dignity’ of same-sex marriage

By Jonathan Turley

...Kennedy’s moving language was more than just aspirational thoughts on dignity. He found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the “dignity” of marriage. The uncertain implications of that right should be a concern not just for conservatives but also for civil libertarians. While Obergefell clearly increases the liberty of a historically oppressed people, the reasoning behind it, if not carefully defined, could prove parasitic or invasive to other rights. Beware the law of unintended constitutional consequences.

For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendment’s equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as “protected classes.” Kennedy and his allies could have added “sexual orientation” to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.

Instead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process....

...These words resonate with many of us, but it is not clear what a right to dignity portends. As Justice Antonin Scalia predicted in an earlier dissent to Lawrence, it signals “the end of all morals legislation.” Some of us have long argued for precisely that result, but the use of a dignity right as a vehicle presents a new, unexpected element, since it may exist in tension with the right to free speech or free exercise of religion.

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify.... The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a “keystone of the Nation’s social order” when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.

With the emergence of this new right, we must now determine how it is balanced against other rights and how far it extends....

...Universities increasingly warn students and faculty not just against comments deemed racist but also against an ever-expanding list of “microaggressions,” such as the use of “melting pot” and other terms considered insensitive. This year, a Montana prosecutor sought to punish speech that exposes religious, racial or other groups “to hatred, contempt, ridicule, degradation, or disgrace.” Such laws could now be justified as protecting the dignity rights of groups and balancing the “danger” of free speech.

Obergefell would be a tragic irony if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.

None of these concerns take away from the euphoria of this liberating moment. And the justices can certainly tailor their new right in the coming years. But if we are to protect the dignity of all citizens, we need to be careful that dignity is not simply a new way for the majority to decide who belongs and who does not in our “Nation’s social order.”

Read the whole piece (July 5, 2015).

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HuffPost TV: "When It Comes To Marriage, Is Three A Crowd?"

Four smart poly movers-and-shakers appeared on a HuffPost Live web-TV segment a few days after the Supreme Court's Obergefell decision and Roberts' now-famous dissent. They discuss the future of the multi-marriage issue with a depth and sophistication way above what I've seen elsewhere.

HuffPost Live gave them a solid 30 minutes. Pass this one on. (Ignore the cheesy graphic:)



The blurb:

Chief Justice John Roberts stated that the majority's reasoning for backing gay marriage would also apply to polyamorous relationships. We unpack his argument and explore whether there's a case for group marriage.

The guests:

● Andy Izenson, associate attorney at Diana Adams Law & Mediation in Brooklyn, a law firm for nontraditional families.

● Billy Holder, activist and the central creator of the annual Atlanta Poly Weekend conference; vice-president of the Relationship Equality Foundation.

● Elisabeth Sheff Ph.D, sociologist and author of The Polyamorists Next Door.

● Lola Houston, anthropologist and polyactivist in Burlington, Vermont.

It originally aired June 30. Here's the webpage.

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Montana trio seeks polygamy license; "inspired by Roberts"

Victoria, Nathan, and Christine Collier

An ex-Mormon man and two women, living as a polygamous family in Montana, aim to test America's anti-polygamy laws following the Supreme Court's gay-marriage decision. Nathan Collier says he and his second wife Christine were inspired to seek a marriage license by Chief Justice John Roberts' warning that the court's gay-marriage ruling opens the way to legal multiple marriage.

First, here's a local TV report from KTVQ in Billings, Montana:



From the accompanying text (June 30, 2015):

Lockwood polygamist family seeks right to marriage

...We first told you about the Colliers in January when the polygamist family appeared on an episode of the TLC show "Sister Wives."

46-year-old Nathan Collier and his two wives, Vicki and Christine, said Tuesday that they are simply looking for equality.

Nathan is legally married to Vicki, but is looking to also legally wed Christine. The family has a total of seven children, all from previous relationships....

"We just want to add legal legitimacy to an already happy, strong, loving family," said Nathan.

..."It's two distinct marriages, it's two distinct unions, and for us to come together and create family, what's wrong with that?" said Christine. "I don't understand why it's looked upon and frowned upon as being obscene."

The couple's goal is to have their story heard. The Colliers say if the state of Montana could only recognize their marriage as legal, it could be the catalyst for other states to follow suit.

"All we want is legal legitimacy. We aren't asking anybody for anything else. We just want to give our marriage and our family the legitimacy that it deserves," said Nathan.

Nathan Collier describes himself on Facebook as “an American, conservative, Constitutionalist, capitalist, (formerly) Christian, heterosexual middle aged white male of Southern heritage.”

From an Associated Press story:

Polygamous Montana trio applies for wedding license

A Montana man said Wednesday that he was inspired by last week's U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife....

...Collier, 46, owns a refrigeration business in Billings and married Victoria, 40, in 2000. He and his second wife, Christine, had a religious wedding ceremony in 2007 but did not sign a marriage license to avoid bigamy charges, he said.

Collier said he is a former Mormon who was excommunicated for polygamy and now belongs to no religious organization. He said he and his wives hid their relationship for years, but became tired of hiding and went public by appearing on the reality cable television show "Sister Wives."

...Anne Wilde, a co-founder of the polygamy advocacy organization Principle Voices located in Utah, said Collier's application is the first she's heard of in the nation, and that most polygamous families in Utah are not seeking the right to have multiple marriage licenses.

"Ninety percent or more of the fundamentalist Mormons don't want it legalized, they want it decriminalized," Wilde said.

A federal judge struck down parts of Utah's anti-polygamy law two years ago, saying the law violated religious freedom by prohibiting cohabitation. Bigamy is still illegal. [Utah] has appealed the ruling, and the case is pending in the 10th U.S. Circuit Court of Appeals.

Wilde said most polygamous families are satisfied with the judge's ruling and believe taking it further to include multiple marriage licenses would bring them under the unwanted jurisdiction of the government.

But she said the Supreme Court's decision on gay marriage should strengthen their chance of winning the appeal....

Read the whole story (July 1).

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● The Colliers are getting lots of attention from slippery-slope conservatives saying "we told you so!" At Real Clear Politics, Steve Chapman says their scenario is not farfetched:

From Gay Marriage to Polygamy?

If you're one of those rare people who think one spouse is not enough, your prayers may be answered. After the Supreme Court decision in favor of gay marriage, conservative critics spotted sister wives on the horizon. "Polygamy, here we come!" tweeted Weekly Standard editor William Kristol.

...The case for legalizing polygamy builds on the case for legalizing same-sex marriage. The sexual arrangements may offend some people, but they're not a crime. If they aren't done under legal arrangements, they'll be done without them.

Conservatives raise the specter of polygamy as though its evils are beyond doubt. But much of their opposition stems from religious objections, appeals to tradition or disgust with sexual tastes they do not share.

Those grounds were not enough to justify banning same-sex marriage — and in the long run, they are not enough to justify banning polygamy. If conservatives want to make sure plural marriage never comes to pass, they need better reasons.

Some plausible defenses have been heard. One is that [patriarch-centered] polygamous weddings, unlike gay ones, actually harm other people — by reducing the stock of potential [female] mates, dooming some [men] to singlehood. Another is that polygamy is associated with sexual abuse of minors.

Note that such rationales don't apply to today's secular, gender-equal polyamorists.

It may also be argued that polygamists, unlike gays, don't warrant constitutional protection because they haven't suffered relentless mistreatment.

Those arguments may be enough to keep the Supreme Court from concluding that the Constitution protects polygamy. But they aren't very convincing as arguments for banning it.

Plural marriage would decrease the supply of marriage partners — but so do informal polygamous arrangements, which take multiple people out of the dating pool.

Besides, no one is entitled to a preferred quota of possible spouses....

The abuses often seen in polygamist outposts are real, but they are more likely to flourish when Big Love can be practiced only in secret, and they can be prosecuted on their own. We don't outlaw traditional marriage because Ray Rice slugged his wife.

...None of these rationales, of course, is likely to convince the court to grant a freedom that few people want and that would produce far more complications than same-sex unions. Public opinion affects the justices, and there is no groundswell of support for plural marriage.

But maybe that's because we haven't given it much thought. Conservatives raise it in the context of same-sex marriage to create fear. They should be careful. If people bother to look at polygamy, they may find it's not so scary

The whole article (July 2).

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● On the other hand, Washington Post political columnist Hunter Schwarz says it ain't gonna happen:

Support for polygamy is rising. But it’s not the new gay marriage.

...While support for polygamy is rising, it has a ways to go before it catches up with same-sex marriage, and there are plenty of reasons it's unlikely to catch on in anywhere near the same way.

For now, it's illegal nationwide, recent legal attempt to overturn bans have been unsuccessful, and public support is low. But that support is increasing.

According to data from Gallup, support has increased from 5 percent in 2006 to 16 percent today. The biggest one-year jump happened in 2011, after TLC's "Sister Wives," about a polygamist family who lived in Utah and later Nevada (the Colliers also have appeared on the show), first aired.

Washington Post

Some polygamists have become champions of same-sex marriage because they see it as as opening for them, even if it often goes against their personal religious beliefs. They've also taken cues from how opinions about same-sex marriage evolved. Getting on TV and showing people how normal you are is an important component of that.

...But polygamists will always be at a disadvantage compared to the LGBT community. The No. 1 reason people who once opposed same-sex marriage changed their mind, according to a 2013 Pew poll, was that they knew someone who was gay or lesbian. Unlike sexual orientation, polygamy isn't something most people will ever confront in their daily lives....

It's not as if people are coming out as polygamists across the country and are changing their friends' and families' minds....

But we "polyamorists next door" just might! Read the whole article (July 2, 2015).

You can google up many more recent stories on the Collier family.

Update August 28: The Colliers have decided they're prepared to run with this; they've gone ahead and filed a complaint against the state.

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Four clueless denials that a poly marriage issue exists

Remember William Saletan of Slate? He's the type specimen of a liberal who let himself be intimidated by the right into denying that poly marriage will ever be an issue — because obviously, polyamory itself can't exist. In 2006 he wrote,

The average guy would love to bang his neighbor's wife. He just doesn't want his wife banging his neighbor. Fidelity isn't natural, but jealousy is. Hence the one-spouse rule. One isn't the number of people you want to sleep with. It's the number of people you want your spouse to sleep with.

He's probably embarrassed by that now. His current defense retreats to a new position: poly relationships exist, but they can be more or less dismissed as optional frippery.

The Case Against Polygamy

Chief Justice John Roberts says the Supreme Court’s gay marriage ruling paves the way for plural unions. He’s wrong.

Supreme Court Chief Justice John G. Roberts

(Photo by Mandel Ngan / Getty)

By William Saletan

The gay marriage war is over. The polygamy war is on.

...In their dissents, and in their questions during oral argument, the court’s conservative justices have thrown their weight behind a new issue. They’re demanding to know why, if gay marriage is a constitutional right, polygamy isn’t.

At Obergefell v. Hodges oral arguments on April 28, Justice Samuel Alito asked on what grounds a state could deny a marriage license to a foursome of two men and two women. Justice Antonin Scalia asked whether states should be required to recognize polygamous marriages performed in countries where the practice is legal. Then, in his dissent issued Friday, Chief Justice John Roberts contended that “much of the majority’s reasoning” in support of same-sex marriage “would apply with equal force to the claim of a fundamental right to plural marriage”:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.

...Roberts is wrong when he claims that Kennedy has offered “no reason at all” why the law should treat polygamy differently from homosexuality. The majority opinion offers several good reasons. It just doesn’t explain how they apply to plural marriage.

Let’s do that now.... Kennedy does a lousy job of clarifying these considerations. Let’s spell them out.

1. Immutability. Kennedy tosses this into his opinion, bizarrely, as a side comment. Referring to gays who seek matrimony, he says, “[T]heir immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Later, he speaks of “new insights” that have transformed society, including this one: “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Kennedy doesn’t elaborate on these remarks, but they’re huge. Immutability is the biggest difference between homosexuality and polyamory. Even the pro-polyamory law review article cited by Roberts in his dissent acknowledges that immutability is a crucial factor in identifying unjust discrimination against classes of people — and that “polygamists are not born that way.”

2. Loneliness. According to Kennedy, “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” At the end of his opinion, Kennedy returns to this theme. He says gay people who are legally excluded from marriage are “condemned to live in loneliness.” You can’t say that about polyamorists. Legally, they may be condemned to monogamy. But not to solitude.

3. Exclusion. Kennedy notes that when laws forbid gay marriage, “same-sex couples are denied all the benefits afforded to opposite-sex couples.” He lists many such benefits, including tax breaks, inheritance rights, property rights, adoption rights, hospital visitation, survivor benefits, and health insurance. He also points out that children in same-sex households “suffer the significant material costs of being raised by unmarried parents.” That’s not true for kids in polyamorous households. Their parents can marry — they just have to pair up, leaving one adult, at most, unaccounted for....

4. Divided loyalty. Kennedy says marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He doesn’t explain how these ideals distinguish homosexuality from polygamy. But they do. Fidelity and devotion are concentrated virtues. When you spread them out among multiple spouses (or, yes, even among children — that means you, Duggars), you dilute them....

5. Conflict. Countless marriages have exploded and ended because two spouses couldn’t get along. With three or four spouses, it’s that much harder to keep everyone happy....

Read the whole article (June 29, 2015).

Thomas Leavitt posted this analysis in a discussion on the Polyamory Leadership Network (quoted by permission):

These articles are useful, because they outline, in precise detail, where they think our argument is strongest, and where they think they can make points...

1. Immutability — that's easy enough to refute. Lisa Diamond's work demonstrates the fallacy of this quite nicely. SSM marriage advocates, of course, following the path of previous American jurisprudence, choose "born this way" as an easy argument to make. It's not entirely untrue, of course, many people "are born this way" (as are many polyamorists, though I think you'll have a much harder time arguing for the existence of a "polyamory" gene, given the relative dearth of research... though I'm under the impression that there are techniques that could tease such an inference out of the data), but the full truth complicates the storyline.

2. Loneliness — the death or premature loss of a spouse is devastating, it could easily be argued that having multiple partners would buffer some of that, and lead to a higher quality of life in old
age... the oral history project that included the three ex-Navy men who had a 46-year marriage is an excellent example. Not to mention that three (or more) is more company, and less lonely, than two.

3. Exclusion — this is the EXACT same argument that was made against same-sex marriage... they're not excluded, "all they have to do is marry someone of the 'opposite' sex".

4. Divided loyalty — in today's age, "fidelity" is no requirement for marriage as it is, and his comment about "even among children" shows how utterly weak it is. You don't love oldest child any less because they have a younger sibling, or vice versa. This isn't even an argument.

5. Conflict — again, staying married isn't a requirement of getting married, no one's seriously suggesting that we abolish marriage because of a high divorce rate, and the child custody issue is a total red herring here... yes, figuring that out may require some thought, but... maybe not. We have plenty of precedents in today's blended families. Just treat non-biological parents as step-parents, with all the non-rights that that implies.

...The only substantive arguments that can be made against multi-partner marriages are complexity of implementation, and given that our society has worked out legal frameworks for far more complex multi-party relationships than even the most exotic poly marriages could ever hope to achieve, that doesn't seem like a big issue.

Now, contrawise, from a litigation and legislative standpoint, I do think it makes a big difference. Changing the law to make SSM legal was essentially trivial, and did not require judges to rewrite statutes from the bench (in many cases, they bounced even the changing of the wording back to the legislative bodies with a mandate to get it done). Changing the law to make multi-partner marriages work is probably more substantive in nature, although "make it so" is still an option [for a court].

...Seriously, though, "opposition research" of this sort is valuable. And in a sufficiently mature movement, the response is not a detailed rebuttal or a debate, but simply putting out our own message. We're already way ahead of the game, when the opposition starts out by conceding multiple points, and we have the logic of a Supreme Court justice on our side, even one who is horrified at the thought of us.

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● Elsewhere on the political spectrum, at Time magazine the libertarian writer Cathy Young recycles material from a 2014 article where she shrank from libertarianism in a moral panic:

Polygamy Is Not Next

The logic of same-sex marriage does not inevitably lead to multi-partner marriage

By Cathy Young

...There has also been a steady trickle of articles from the left asking what’s so wrong with legalized multi-partner marriages. Some even argue, as writer and academic Fredrik deBoer does in a recent Politico essay, that polygamy should be the “next horizon” of social liberalism.

...The battle for same-sex marriage was won, both in courts of law and in the court of public opinion, by framing the goal as “marriage equality” — that same-sex couples should have access to the same rights and privileges as their heterosexual counterparts.... The legal rights and benefits of modern heterosexual marriage are gender-neutral.... There was simply no good way to justify denying the same rights to two partners of the same sex.

By contrast, the entire existing structure of modern marriage is designed for a dyad....

There is another difference. Attempts to stop same-sex marriage floundered partly because no one could show how male/female unions would be harmed or even affected by same-sex ones. Legalizing multiple spouses, on the other hand, would immediately affect every couple by opening a potential door to new partners in the marriage. Yes, this would presumably require everyone’s consent, but at the very least, those who want monogamy would have to explicitly stipulate this,

(Saying what relationship structure you need? The horror!)

and even then a monogamy clause could probably be renegotiated later.

Inevitably, too, a movement for plural marriage rights would be accompanied by a push to destigmatize other forms of non-monogamy such as open marriage. The message that sexual exclusivity in marriage is optional — accompanied by visible and positive images of non-monogamous unions — could have a ripple effect. Before long, the spouse who insists on fidelity could be forced to justify such an old-fashioned preference.

...If social liberals in the academy and the media decide to champion non-monogamy as the next frontier of liberation and equality, they could make some headway in promoting acceptance of such lifestyle choices. But the likely result would be a new conflagration in the culture wars — particularly since, this time around, these choices do affect other people’s marriages....

Read the whole piece (June 30, 2015).

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● And another, by Jonathan Rausch of the Brookings Institution, writing at Politico. His take: ignore modern, gender-equal polyamory altogether; it's all about primitive patriarchs hoarding women.

No, Polygamy Isn’t the Next Gay Marriage

Group marriage is the past — not the future — of matrimony.

I am a gay marriage advocate. So why do I spend so much of my time arguing about polygamy?...

If I sound exasperated, it's because the polygamy argument doesn't stand up to scrutiny. That doesn't stop it from popping up everywhere....

Unlike gay marriage, polygamy is not a new idea. It's a standard form of marriage, dating back, of course, to Biblical times and before, and anthropologists say that 85 percent of human societies have permitted it. This means we know a thing or two about it.

Here's the problem with it: when a high-­status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real­ world pattern), a lower-status man gets no wife. If the high-­status man takes three wives, two lower­-status men get no wives. And so on.

...The situation is not good for women, either, because it places them in competition with other wives and can reduce them all to satellites of the man.

...By abolishing polygamy as a legal form of marriage, western societies took a step without which modern liberal democracy and egalitarian social structures might have been impossible: they democratized the opportunity to marry....

There is ample evidence that polygamy has many severe consequences for third parties and for society as a whole, and the social interests at stake are very obviously related to a legitimate government purpose (many purposes, in fact). There's no way the ban on polygamy could fail a rational­-basis test....

Read his whole article (June 30, 2015).

Fredrik deBoer, the author of that flag-planting piece It's Time to Legalize Polygamy, delivers a powerful rebuttal to Rausch: Every Bad Argument Against Polygamy, Debunked (July 1, 2015).

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● Richard A. Posner — a U.S. Court of Appeals judge for the 7th Circuit and a senior lecturer at the University of Chicago Law School — makes a similar comment in an otherwise insightful piece for Slate:

...But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women....

The whole article (June 27, 2015).

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Jessica Bennett talks back to Roberts regarding her Newsweek poly article, and other developments.

Remember Jessica Bennett? She wrote the famous and much-quoted Newsweek online feature six years ago about poly shaping up as America's next big development in relationships.

John Roberts cited my article in his dissent on marriage equality. He missed the point.

I dissent, Mr. Chief Justice!

By Jessica Bennett

...So it was almost comical to see my work used against [the gay marriage] cause last week by the Supreme Court of the United States. In his dissent in the court’s gay marriage ruling, Chief Justice John Roberts cited my 2009 article for Newsweek: “Polyamory: The Next Sexual Revolution?”.

This was not an article about the LGBT community at all. Rather, it was about a group, polyamorists, from whom gay rights activists have long attempted to distance themselves specifically to avoid the kind of association Roberts drew.

...I had spent time shadowing a polyamorous family in my hometown, Seattle.... This particular family was a triad: that is, a woman at the center, two men as her partners, living under one roof, with a married couple on the side, the wife of whom was dating one of the two men and the husband dating the woman at the center. They lived in a lakeside community full of good Seattle liberals and lots of money; they had three dogs and a vegetable garden and they often took walks along the water, hand in hand in hand.

...What they weren’t looking to do at all, though, was to “redefine marriage” — as gay marriage critics have so often put it. They were looking to break the shackles of the institution altogether. “The people I feel sorry for are the ones who don’t ever realize they have any other choices beyond the traditional options society presents,” one poly man told me.

I’d gone in a skeptic, but emerged with a set of characters who raised convincing philosophical, and even biological, questions about relationships, jealousy, tradition and institutions — and whether humans were meant to be monogamous in the first place. It had occurred to me that the case for polyamory on the pages of a national magazine might ruffle feathers; it was low-hanging fruit for conservatives who would argue, like Roberts, that polyamory was another milestone on the slippery slope toward… social breakdown, chaos, sexual deviance, you name it. But as part of the argument against one of the most significant rulings of the last 50 years? Next to a New York Post citation?! It was hilarious — but only because it was on the losing side of a close vote.

“If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?” the chief justice wrote in his 29-page dissent. “I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.”

At the Supreme Court, apparently, authorial intent only carries so much weight. ​No one involved in my Newsweek story — not the subjects, and certainly not the writer — thought there was any wider lesson to be drawn from their situation about the state of gay marriage. But don’t tell that to a chief justice (or his law clerk) hell-bent on finding grave concerns about what might happen if two people of the same sex get married.

​In this case, fortunately, love still wins.​

Read her whole article (June 29, 2015).

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More in today:

● At The Federalist, Sara Burroughs writes Polyamory Is Next, And I’m One Reason Why (June 30, 2015). Amid the personal story of her and her partner's journey into poly is this perspective:

Here's how libertarianism has led me and my partner into polyamory, and why America will have to grapple with this issue next.

By Sara Burrows

...The first authority I came to see as illegitimate was government, shortly after discovering Ron Paul in 2008. I stumbled upon his campaign like a rabbit hole that led me to question all of society’s rules. Soon after, I started to question my religion — Christianity. How much of it had been made up, twisted, and contrived — in collusion with the government — to support the powers that be?

Along with the fear of God, I cast off any respect for parental authority I once had. Since the punitive, authoritarian man in the clouds was no longer real to me, who was to say children should obey their parents? I educated myself about peaceful parenting and became determined to treat my daughter as a free, autonomous person with inalienable rights, not as my property.

Gay Marriage Deepens Romantic Inequality

Government incentives for marriage — gay or straight — discriminate against single and polyamorous individuals. Part of the reason gay people are so exuberant about the Supreme Court’s legalization of same-sex marriage — aside from the symbolism of wider cultural acceptance — is the bribes government gives people for committing to a lifetime of coupled monogamy.

From income-tax breaks to estate planning benefits to Social Security and insurance benefits to the right to make medical decisions for one’s spouse, there are all kinds of carrots dangled in front of Americans as rewards for getting hitched. Instead of putting unmarried individuals on equal footing with married people, the government has chosen to appease the masses by blessing another category of monogamous couples with the privileges of marriage—those of the same sex.

This is discrimination, plain and simple. It discriminates against single people who have no formal romantic relationships and a growing number of people who identify as polyamorous, who maintain multiple romantic relationships at once. The government has no business incentivizing any type of romantic or non-romantic behavior. It has no business rewarding us or penalizing us based on our relationship status.

By granting gay couples the same “privileges” as straight couples, we are widening the gap of inequality between coupled and non-coupled individuals...

Sara is a former reporter for The Carolina Journal in Raleigh, North Carolina. She and her partner, Brad, are now raising their daughter together in Asheville, North Carolina, where they’ve started The Real Food Truck. In her spare time, she blogs about their new journey into polyamory at polyamorydiaries.com.

As you might expect, The Federalist prints a rebuttal, Polyamory Is Bad For Kids, Polyamorists, And Society (by D. C. McAllister, July 7). She misquotes Deborah Anapol's Polyamory in the 21st Century to the effect that poly is all horse manure all the time, rather than a string of disappointments for some too-eager newbies who can't make it work.

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● A friendly piece by a staffer at Religion News Service: #LoveWins for gay couples, but for polygamy activists, the fight continues (June 30, 2015). About Roberts' dissent, Brian Pellot writes that it raises

Good, progressive questions from a man playing devil’s advocate while inadvertently advancing pro-poly rhetoric that will likely come back to bite him. Dissenting Justices Alito and Scalia asked similar poly-affirming questions during oral arguments in the case.

The fight for LGBTQ+ rights in America is far from over, but after last week’s major win, it’s worth properly reflecting on the important questions Roberts and his fellow dissenters have raised about polygamy (briefly setting aside their fear mongering motives in doing so)....

So is polygamy passé? [Is it] the next slide on our slippery slope to damnation? [Or] the next rung on our steep climb towards full civil rights and equality in America?

Whatever your take, there’s no denying that last week’s SCOTUS opinions broke our collective silence on poly rights. If Friday’s ruling was about dignity and equality, as Justice Kennedy made clear, this is a debate we must continue.

In my next post: the return of Slate's poly-dismissive William Saletan.

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US News: "Polyamorous Rights Advocates See Marriage Equality Coming for Them"

A couple days ago a reporter from US News (a decades-old, well-respected mainstream news magazine) wrote and asked for poly spokespeople who would be good to talk to about the Supreme Court's gay-marriage ruling. I suggested Diana Adams and Robyn Trask, and they're among the people he quotes in his article this morning, below.

Missing from the article is his long conversation with Ricci Levy of the Woodhull Freedom Foundation. She described at length why marriage rights are the wrong way to approach poly family rights. Many rights that currently accrue to marriage should accrue to any individuals, she argued, and individuals should be able to design their own families of choice by their own contracts.

Not a word of that got used. Poly marriage is what the media are obsessing about right now.

In my opinion, multi-marriage would be a poor paradigm for poly rights even if it were legally available. But that's another story (to come). Right now we have no choice but to ride the tiger, and try to steer it.

Polyamorous Rights Advocates See Marriage Equality Coming for Them

Justice John Roberts was spot-on about polygamy, advocates say.

Robyn Brown, Meri Brown, Kody Brown, Christine Brown and Janelle Brown from reality TV program "Sister Wives" [sued] to decriminalize polyamorous living arrangements in Utah [and have won so far –Ed.]. Other polyamorous advocates expect lawsuits seeking marriage rights.

By Steven Nelson

Like others across the country last week, a Washington, D.C., couple and their housewarming guests buzzed about the Supreme Court's ruling that legalized gay marriage in all 50 states. But they were far more interested in Chief Justice John Roberts' dissent than the majority opinion that made same-sex marriage the law of the land.

The couple – a husband and his wife – are polyamorous, and had just moved in with their girlfriend. And in Roberts' dissent, they saw a path that could make three-way relationships like theirs legal, too.

“Did you see we were mentioned by Roberts?” the husband beamed as he welcomed guests the day after the ruling. The chief justice wrote that polygamy has deeper roots in history and that the decision allowing gays to marry "would apply with equal force to the claim of a fundamental right to plural marriage.”

“If the majority is willing to take the big leap," [Roberts] added, "it is hard to see how it can say no to the shorter one.”

An attorney at the housewarming who works at a prominent Washington law firm tittered at the thought of repurposing gay rights arguments to sue for government recognition of plural marriages. It would be a lot of fun, he told his host, if he wasn’t saddled with corporate law work.

Roberts' analysis wasn't unique. The suggestion previously was made by judges on the U.S. Court of Appeals for the 6th Circuit, who in November wrote, “there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.”

Some gay marriage supporters see the analogy as far-fetched. But for polyamorous advocates it’s welcomed as a potential boost for future legal efforts.

Some advocates believe Roberts' dissent will prove as useful to the polyamorous movement as dissents written by Justice Antonin Scalia in gay rights cases were to the same-sex marriage movement. In Lawrence v. Texas, a 2003 case, and in 2013's U.S. v. Windsor, Scalia warned his peers were laying the groundwork for universal recognition of same-sex marriage, which other federal judges pointed to in their decisions knocking down state bans on gay marriage.

"I do think the dissent by Roberts provides a legal foothold for people seeking polyamorous marriage rights," says Diana Adams, a New York attorney who specializes in nontraditional family law. "As Roberts points out, if there's going to be a rejection of some of the traditional man-woman elements of marriage... those same arguments could easily be applied to three or four-person unions."

Adams says she's heard chatter of looming lawsuits now that the same-sex marriage issue has been resolved. She personally is interested in helping extend co-parenting arrangements for three or more people to benefit same-sex couples who cannot reproduce with each other, and she says such cases could ultimately break ground for polyamorous families.

Robyn Trask, the Colorado-based executive director of Loving More, a polyamory support organization, says she believes Roberts’ dissent will prove prophetic.

“I don’t think it’s going to be as far in the future as people think,” she says.

Trask says the marriage issue currently is “debated within our own community, similar to the gay community – there are people who don’t believe we should go after plural marriage, and there are those who do.”

A significant majority within the community appears open to the idea of marriage with multiple partners should it become legally possible. In a 2012 survey, Loving More asked more than 4,000 polyamorous people and found 66 percent were open to plural marriage, with 20 percent unsure.

There are many practical reasons to marry, Trask says, including immigration and medical decision-making rights. She has personal experience with both, marrying a Japanese partner in the late 1980s so he could remain in the U.S. and struggling for the right to speak for a female partner while she underwent surgery.

She says she once knew a married American couple who divorced so one could remarry a Canadian partner who wanted to live in the U.S. Another three-person relationship featured an American, a Canadian and a Mexican who wished to live together.

Despite the real-world benefits of legal marriage, Trask says many people living in polyamorous relationships “are in the closet and being very careful,” with a large number feeling it’s more important to protect their employment, housing and children than to lead the charge for marital rights.

But she says polyamorous partners, particularly younger ones, are increasingly “out” about their lifestyle, and believes change will come with greater swiftness than for gay people. "They blazed the trail, if you will,” she says.

Read the original: Polyamorous Rights Advocates See Marriage Equality Coming for Them (June 29, 2015).

Here are Ricci Levy's remarks as posted on the Polyamory Leadership Network (quoted by permission):

Steven Nelson is a generally fair reporter and I spent quite a bit of time on the phone with him. I gave him a great deal of information about our human right to family, citing the Universal Declaration of Human Rights in 1948 and various international treaties since, as well as the refusal of the United Nations Human Rights Commission/Committee to limit the definition of family, stating that we must recognize the diversity of family today.

For the first time in the history of our country there are fewer than 50% of married households (per the census). I answered every push for a statement about whether the next battle should be for poly marriage by stressing that we should shift the conversation to our right to family, and that rights should accrue to the individual rather than be based on a relationship structure that, historically, favors marriage above all other relationships. I also stressed that I believe anyone who wishes to celebrate their relationship, no matter how many are involved, by get married should be able to do so.

As you'll see in the article, there is no mention of this conversation at all. My feelings aren't hurt. :) I suspect the frame will be poly marriage in the media for some time to come. And we will end up, I fear, if we don't push back to shift the conversation to the right to family, fighting for one "marriage" configuration after another.

Steven asked me, by the way, how we separate out the rights from the relationship. My suggestion is that rights accrue to the individual rather than being based on a relationship.

The quotes in the article are good and favorable, by the way.

And I would encourage all of you to check out a document that was drafted in April 2006 by a wonderful group that came together in response to the movement for (what was then) Same Sex Marriage: www.beyondmarriage.org.

-----------------------------------------

Some other items:

● Many right-wing voices agree with how we see Roberts' dissent. For instance, blogger Amy Hall substitutes "polygamous and polyamorous groups" for "same-sex couples" into swing-justice Anthony Kennedy's landmark ruling. Sounds good to me: Justice Kennedy’s Arguments for Polygamy and Polyamory (June 27, 2015).

● Keith Pullman reposts his Why Polyamory Will Gain Acceptance Faster than gay rights (April 20, 2015).

● An enthusiastic article in South Africa's Independent Online:
Let’s legalise polyamory next? (June 29, 2015). It's been republished several other places.

More coming.

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After Supreme Court decision, "It’s Time to Legalize Polygamy"

Politico

Just hours after yesterday's Supreme Court ruling that institutes gay marriage nationwide — and Chief Justice Roberts' dissent spelling out how the way is now wide open to multi-marriages (see my previous post) — Politico published a ringing opening shot from the left arguing that that would be just fine.

Legal recognition for polygamy is a goal not just for breakaway Mormon patriarchs and their wives, but for some fraction of modern, secular, gender-equal polyfamilies.

It’s Time to Legalize Polygamy

Why group marriage is the next horizon of social liberalism.

Getty

By Fredrik deBoer

Welcome to the exciting new world of the slippery slope. With the Supreme Court’s landmark ruling this Friday legalizing same sex marriage in all 50 states, social liberalism has achieved one of its central goals. A right seemingly unthinkable two decades ago has now been broadly applied to a whole new class of citizens. Following on the rejection of interracial marriage bans in the 20th Century, the Supreme Court decision clearly shows that marriage should be a broadly applicable right — one that forces the government to recognize, as Friday’s decision said, a private couple’s “love, fidelity, devotion, sacrifice and family.”

The question presents itself: Where does the next advance come? The answer is going to make nearly everyone uncomfortable: Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy — yet many of the same people who pressed for marriage equality for gay couples oppose it.

This is not an abstract issue. In Chief Justice John Roberts’ dissenting opinion, he remarks, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” As is often the case with critics of polygamy, he neglects to mention why this is a fate to be feared....

The moral reasoning behind society’s rejection of polygamy remains just as uncomfortable and legally weak as same-sex marriage opposition was until recently.

That’s one reason why progressives who reject the case for legal polygamy often don’t really appear to have their hearts in it. They seem uncomfortable voicing their objections, clearly unused to being in the position of rejecting the appeals of those who would codify non-traditional relationships in law. They are, without exception, accepting of the right of consenting adults to engage in whatever sexual and romantic relationships they choose, but oppose the formal, legal recognition of those relationships....

...Polyamory is a fact. People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right.

Why the opposition, from those who have no interest in preserving “traditional marriage” or forbidding polyamorous relationships? I think the answer has to do with political momentum, with a kind of ad hoc-rejection of polygamy as necessary political concession. And in time, I think it will change....

But the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need. Many conservative opponents of marriage equality have made the slippery slope argument, insisting that same-sex marriages would lead inevitably to further redefinition of what marriage is and means. See, for example, Rick Santorum’s infamous “man on dog” comments, in which he equated the desire of two adult men or women to be married with bestiality. Polygamy has frequently been a part of these slippery slope arguments. Typical of such arguments, the reasons why marriage between more than two partners would be destructive were taken as a given. Many proponents of marriage equality, I’m sorry to say, went along with this evidence-free indictment of polygamous matrimony. They choose to side-step the issue by insisting that gay marriage wouldn’t lead to polygamy. That legally sanctioned polygamy was a fate worth fearing went without saying.

...In 2005, a denial of the right to group marriage stemming from political pragmatism made at least some sense. In 2015, after this ruling, it no longer does.

...Conventional arguments against polygamy fall apart with even a little examination. Appeals to traditional marriage, and the notion that child rearing is the only legitimate justification of legal marriage, have now, I hope, been exposed and discarded by all progressive people. What’s left is a series of jerry-rigged arguments that reflect no coherent moral vision of what marriage is for, and which frequently function as criticisms of traditional marriage as well.

...Another common argument, and another unsatisfying one, is logistical. In this telling, polygamous marriages would strain the infrastructure of our legal systems of marriage, as they are not designed to handle marriage between more than two people. In particular, the claim is frequently made that the division of property upon divorce or death would be too complicated for polygamous marriages. I find this argument eerily reminiscent of similar efforts to dismiss same-sex marriage on practical grounds. (The forms say husband and wife! What do you want us to do, print new forms?)....

If current legal structures and precedents aren’t conducive to group marriage, then they will be built in time. The comparison to traditional marriage is again instructive....

...I suspect that many progressives would recognize, when pushed in this way, that the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice. What we’re left with is an unsatisfying patchwork of unconvincing arguments and bad ideas, ones embraced for short-term convenience at long-term cost. We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism. The course then, is clear: to look beyond political convenience and conservative intransigence, and begin to make the case for extending legal marriage rights to more loving and committed adults. It’s time.

Fredrik deBoer is a writer and academic. He lives in Indiana.

Read the whole article (June 26, 2015).

● Earlier this year, in the Emory Law Journal, Ronald C. Den Otter published a lengthy analysis Three May Not Be a Crowd: The case for a constitutional right to plural marriage. From the abstract:

This Article takes seriously the substantive due process and equal protection arguments that support plural marriage (being able to marry more than one person at the same time). While numerous scholars have written about same-sex marriage, few of them have had much to say about marriages among three or more individuals. As progressive, successful, and important as the Marriage Equality Movement has been, it focuses on same-sex marriage at the expense of other possible kinds of marriages that may be equally worthwhile. The vast majority of Americans still do not discuss plural marriage openly and fairly, as if the topic were taboo. One of the goals of this Article is to convince readers that marriage in the future could be a much more diverse institution that does a better job of meeting individual needs. After all, one size may not fit all. Unfortunately, too often, scholars reduce plural marriage to the exploitation of women and the abuse of children. This approach makes it too easy to dismiss the possibility that a plural marriage might work better than the alternatives for at least some individuals in some circumstances.

Because the expansion of marriage to include same-sex couples is bound to cover a broader range of marital relationships, lawmakers, judges, and the rest of us eventually will have to decide which kinds of intimate relationships will be accorded legal status and which kinds will be left out....

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In Chief Justice Roberts' dissent: Route now wide open to multi-marriage.

And how the language in his dissent may help bring it about.

A new era for relationship rights began yesterday at the Supreme Court, and for better or for worse, we're next.

In his dissent to the Obergefell decision establishing gay marriage nationwide, Chief Justice John Roberts fired the opening shot from the right, calling out plural marriage and polyamorous relationships specifically.

From his dissent:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J.
1977 (2015).

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

Analyst James McDonald has written,

On record, a Chief Justice has stated that:

-- Restricting marriage to couples is an arbitrary choice.
-- Plural marriages can be the product of consenting, autonomous adults, and their choice to marry is a "profound" one.
-- Children of plural marriages are subject to harmful stigma under our current legal paradigm.
-- Individuals can find fulfillment in polyamorous relationships. (Again, he didn't say polygamous relationships.)
-- Not being given the same opportunities as individuals in other relationships disrespects and subordinates individuals in polyamorous relationships.

All of these points can be used in arguments for equality beyond marriage equality — any debate over whether poly people can be denied housing, employment, or custody of children can reference Roberts' statement.

Indeed, this looks like a parallel to Justice Antonin Scalia's dissents to the court's Windsor (2013) and Lawrence (2003) decisions, in which Scalia darkly spelled out the ways in which those rulings would logically lead to requiring gay marriage nationwide. Much to Scalia's dismay, one would think, lower courts cited his language when justifying their extending gay marriage to more states. Lower courts take seriously statements from a Supreme Court justice as to what a law logically requires.

Watch for the same thing to happen with Roberts' dissent.

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