Major New Yorker article: "How Polyamorists and Polygamists Are Challenging Family Norms" ...and family law.

"For years, Andy, Roo, Cal, and Aida envisioned creating a utopian place where people like them—queer, trans, polyamorous—could feel completely safe and welcome." Fire and music at the Rêve, their home.

An important article just came out: a 10,000-word piece in The New Yorker, How Polyamorists and Polygamists Are Challenging Family Norms (online March 15; in the March 22nd print issue with the title "The Shape of Love"). It's especially timely right now after the new multi-domestic-partnership law was enacted in Cambridge, Mass.

Author Andrew Solomon switches back and forth between profiles of patriarchal Mormon polygamist families and egalitarian, genderfluid modern polyamorous families, such as in the group above. Connecting these two very dissimilar groupings are their estrangement from conventional marriage law and what they are trying to do about it. Solomon presents deep profiles of activist families in each camp, some of them well known, interspersed with many legal developments in recent years — all with typical New Yorker thoroughness.

Go read it. It's registration-walled, but registration is free.

Some excerpts to get you started:

...As many as sixty thousand people in the United States practice polygamy, including Hmong Americans, Muslims of various ethnicities, and members of the Pan-African Ausar Auset Society. But polygamists face innumerable legal obstacles, affecting such matters as inheritance, hospital visits, and parentage rights. If wives apply for benefits as single parents, they are lying, and may be committing welfare fraud; but if they file joint tax returns they are breaking the law. ...

Polygamists have become more vocal about achieving legal rights since the legalization of same-sex marriage nationwide, in 2015. So has another group: polyamorists, whose lobbying runs in parallel but with scant overlap. ... In the years I’ve spent talking to members of both communities, I have found that it is usually the polygamists who are more cognizant of common cause.

...In an anti-poly paper in the University of Pennsylvania Journal of Constitutional Law, John O. Hayward wrote, “Now that the U.S. Supreme Court has legalized same-sex marriage nationwide, the only remaining marital frontier—at least for the Judeo-Christian nations of the West—is polygamy.” Another law professor, Jack B. Harrison, wrote that state bans against plural marriage were sure to be challenged, and that anyone who wanted to maintain them would have to “develop a rationale for them, albeit post hoc, that is not rooted in majoritarian morality and animus.”

This is no longer merely a theoretical matter. ...

In February, 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June, Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who “consider themselves to be a family” to be recognized as domestic partners. Last week, the neighboring [city] of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. 

The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents. In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents.

American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?

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...Andy Izenson, Roo Khan, Cal T., and Aida Manduley envisaged creating a utopian place where queer, trans, and polyamorous people could feel safe and welcome. For years, they had told one another stories about the property they would build. At the end of 2017, when Andy and Roo lost their lease, in Brooklyn, the time had come; Cal, who had been living in New Hampshire, was ready to move in, and Aida, a psychotherapist in Boston, planned to relocate as soon as possible. They found a house with fourteen acres and some outbuildings in Ulster Park, on the Hudson. They called their ménage the Rêve.

Living the dream: Andy Izenson, Cal T., Aida Manduley, and Roo Khan.

When I visited, last year, everything seemed to be a work in progress. Unfinished projects around the house gave a feeling of relaxed chaos. Andy, wearing a loose white dress, offered me drinks and snacks. Andy is Jewish; Aida is Puerto Rican; Roo is mixed race and Muslim; Cal is Black and mixed race. Their ethnic and religious backgrounds have prepared them for the marginalization they have experienced as polyamorists. Like the others, Andy goes by the pronoun “they” and described themself as “gender ambivalent.” A lawyer in their early thirties, they spoke in long, hyperactive paragraphs, their eyes wide with passionate focus. ...

‘Polyamorous’ is a close enough description of my practices in the same way as ‘trans-masculine’ is a close enough description of my gender.” Roo said, “I like the word ‘caucus.’ We caucus with polyamorists, you caucus with trans-masculine folk, I caucus with trans-feminine folk.” ... There are various romantic configurations among the four partners, but only Andy is in a romantic relationship with all three of the others. In addition, they all have “comets”—lovers from outside the group who blaze through and then are gone. “It’s a more stable structure with more people,” Andy said.

...The members of the Rêve have thought deeply about what many people characterize as divided love. ... Andy said that the idea was... a conscious rejection of two things: first, “dividing relationships into two categories—one category being people with whom you have sex and the other category being people with whom you don’t have sex,” and, second, “saying that those categories are defined by some deeply operative distinction that changes the fundamental nature of a relationship.”

...The four of them saw the Rêve as a home to a core of residents and as a sanctuary for a wider group. The house has room for nine—“more if people are willing to cuddle,” Andy added. At present, some fifteen occupants can arrive at the house at any time and stay as long as they like. “As we build more structures, as we have more beds, we can have more people living here full time,” they went on. “We want to be able to say, This is what we’re doing for the rest of our lives, so, if you aren’t so stressed about bathroom proximity but you want to fuck a little further off into the woods, this is where you can do it.” ...

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No family in America has done more for the image and legal standing of polygamists than the Dargers: Joe, his three wives—Alina, Vicki, and Valerie—and their twenty-five children, who live in and around Herriman, Utah. In 2011, they published a book, “Love Times Three,” about their polygamous life, even though their marriage was a felony at the time, and they tirelessly worked to persuade other polygamous families to come out. Utah’s [2020] decision to decriminalize polygamy was in large measure the result of a lobbying campaign that the Dargers had pursued for two decades. Their house is in a relatively new subdivision, with wide views of nearby mountains. Joe, who works in construction, has built additional houses on the property for two of his adult children. “Anybody else, they’d say it’s a nice estate,” he said, when he showed me around, in June. “If you’re polygamous, it’s a compound. We’ve taken lessons from the L.G.B.T.Q. community, being very deliberate about language, because how you let people define you has an impact.” 

...Many Mormon polygamists were more than happy to make common cause with the gay-marriage activists. “A lot of our first allies were L.G.B.T.Q., and that was brave of them,” Alina Darger told me. “I’ve come to an appreciation for their struggle, and I am a very firm champion that rights are for every person.” 

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Tamara Pincus is a psychotherapist in Washington, D.C., who works with clients who are exploring alternative sexualities, including polyamory, kink, and L.G.B.T.Q. relationships. She defines herself as a bisexual woman who has sometimes dated genderqueer people. Her husband, Eric, is cheerful and geeky and talks about his apostasy from conventional marriage with a nearly religious fervor. ...   

...Within a few years, Eric had established a relationship with a woman who had two children and was separating from her husband, who is himself polyamorous. Four years later, she and her children moved in. “I love her and wanted her to be part of us,” Eric said. “And Tamara was very happy with her.” Tamara has a boyfriend of nine years. Eric said, “When I was supportive of her doing things, it came back much stronger, because she was, like, ‘Thank you, you made that possible.’ I’m not a very jealous person.” “The sexual relationship is just easier with newer partners,” Tamara said. “A lot of children of the eighties and nineties saw our parents split because of affairs. We are finding more sustainable ways of doing family. Often, monogamous married people feel like ‘This is what I have to do,’ not ‘This is what I choose to do.’ Every day, Eric and I make a choice to keep this relationship together.” 

Another partner of Eric’s, whom he has known for three years, stays over occasionally, with her child. Tamara’s boyfriend stays over at least once a week and has a child who regularly stays over with him. The children in the house all regard one another as siblings. Every Friday, Tamara and Eric host a big dinner for everyone, including ex-partners and close friends. 

...So far, the children have encountered only tolerance [in the larger community], but they have an awareness that tolerance does not necessarily run deep. After the shooting at the Pulse night club, in Orlando, in 2016, one of them asked, “Do people hate us like they hate gay people?” Tamara and Eric are out as polyamorous in most contexts, but Tamara’s long-term boyfriend is not. “If he came out at work, he would likely be fired,” Tamara said. ...

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Diana Adams, a family lawyer in New York, has become the leading figure in the conversation surrounding the application of existing laws to polyamorous and other unorthodox arrangements. In 2017, Adams, who uses the pronoun “they,” founded the Chosen Family Law Center, which undertakes many such cases pro bono. They work with polyamorous clients who would marry if they could, helping them craft a legal dynamic for their shared life.

Adams believes that the establishment of gay marriage produced a backlash against expanded relationship rights, and they encourage their clients to consider other options. “An L.L.C. model is not related to romance, but it’s related to how they can share finances,” they said. “It’s an option I have realized with polyamorous triads and quads. ... You don’t need to get married to become a social-welfare state of two or three or four.” 

...[Adams] went on, “We’re seeing a movement away from parenting being defined by DNA and toward its being defined by intention. Getting out of the model of a two-person monogamous marriage as the basis of family is the next frontier.”

They note that in earlier eras monogamy was expected of women but not of men. “When we were deciding to make this more equitable, it could have gone in a different direction,” Adams said, adding that they wished society, instead of pushing men toward monogamy, had allowed women nonmonogamy. They went on, “Divorce specialists will tell you we have an epidemic of people saying they’re monogamous, then breaking up families with lies and infidelity. What is harmful is that that infidelity breaks a covenant. What if we think about what [covenant] we would actually like to create?” 

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...Polyamorous behavior exists across social groups, but the terminology is of the chattering classes. Elisabeth Sheff, the author of “The Polyamorists Next Door,” speaks of people who are “safe and privileged enough to come out as polyamorous.” Texts on polyamory have tended to focus on the concerns of white, middle-class, college-educated readers, and skate over historical and cultural boundaries that constrain individual choice. Sheff, noting that Black people are already burdened by stereotypes that depict them as sexually voracious and unable to form stable family relationships, describes “perversity” as “a luxury more readily available to those who are already members of dominant groups.” ...

Again, go read the whole thing.

Update: Here's a 50-minute interview with author Andrew Solomon on the RadioWest show ("wildly curious") on KUER, Salt Lake City's NPR radio station: Polygamy, Polyamory And The Changing American Family (online April 1, 2021).

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"Polyamorous people worry Bountiful polygamy case will impact them." And Canadian poly study results

"Winston Blackmore, left, is alleged to have married 24 women in the practise of “celestial” marriage, while James Oler is believed to have five wives." (Jeff McIntosh / Canadian Press)

After more than a decade of legal wrangle, two leaders of a fundamentalist Mormon community in Canada have been found guilty of polygamy and face jail. In 2011 British Columbia's supreme court decided that Canada's law against polygamy is allowable, while carving out an exemption for people in polyamorous relationships that do not involve formalized multiple marriages.

However, the polyamory exemption is less than complete. "Polygamy," the court ruled, includes not just multiple marriages formalized by the state (which would require committing fraud to get an invalid marriage license), but also marriage-like ceremonies that have some other kind of binding power, such by Blackmore and Oler among the fundamentalist Mormons in Bountiful, British Columbia.

The Toronto Star, and its chain of papers Canada-wide, is reporting on the extent of the polyamory carve-out:

Polyamorous people worry precedent on Bountiful polygamy case will impact them

By Tessa Vikanders | StarMetro Vancouver

Polyamory and polygamy both include non-monogamous relationships, but lawyers and members of the polyamorous community say the buck stops there.

Although the two practices are vastly different, some polyamorous people worry the laws against polygamy could impact them.

On Tuesday, a Crown prosecutor recommended that Winston Blackmore and James Oler of Bountiful, B.C., be given jail time after they were convicted of practising polygamy, for having married 24 and five wives respectively.

The judge has yet to sentence the men, who are the first two people to be convicted of polygamy under Canada’s criminal code in more than 100 years.

Family lawyers say the case won’t have any direct impact on the polyamorous community, because the polygamy law is in place to prevent multiple marriages, and it doesn’t prohibit multiple romantic relationships.

John-Paul Boyd, director of the Canadian Research Institute for Law and the Family, said polygamy is a patriarchal practice and includes forced marriages that are said to be mandated by god.

“Those two things are the key distinctions between what’s happening in Bountiful and the experience of people who identify as polyamorous,” he said.

“Polygamy involves one dude and a harem of women, but for polyamorists the potential range of relationships are endless ... and people place a very high value on equality, regardless of gender.”

Jenny Yuen, [with a] forthcoming book Polyamorous: Living and Loving More, has two romantic partners. Polyamory, she said, is about respect, and both of her partners can be with other people.

“It’s open, it’s fluid, everyone knows what’s going on and consents to it,” she said. ...

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Things can get sticky though, when polyamorous people want to get married and have a ceremony.

barbara findlay, a lawyer who specializes in gender and family law, said the law stipulates that three people living together for two years, in a polyamorous “triad” relationship, are given common law status, but they can’t have a legal marriage with a ceremony.

Zoe Duff, co-ordinator and spokesperson of CPAA [the Canadian Polyamory Advocacy Association], said people contact her “all of the time” with questions about whether the laws against polygamy could affect their polyamorous relationships.

“Recently I’ve been getting people who want to do some type of ceremony for their triad, and they’re concerned about the legality of it ... but when you get into ceremonies there can be problems,” she said.

Based on her consultations with lawyers, Duff said she usually tells people to avoid having a ceremony if possible, especially for those who are looking to sponsor a spouse for immigration purposes. But for those who feel strongly about it, there are ways around it.

“If it’s not a religious ceremony, incorporated in an organized way, it will skirt the law,” she said.

findlay said the government needs to update family laws to reflect the polyamorous relationships and families that already exist. But immediate protections for polyamorous people are not required.

“People in polyamorous relationships are not at legal risk of being arrested or prosecuted for being in a polyamorous relationship,” she said. ...

The whole article (May 16, 2018).


● This comes after a Canada-wide study on poly households and their legal needs made the news. An article in Canada's The Lawyer's Daily sums up some of its findings:

Mapping the demographics of polyamory

By John-Paul Boyd

John-Paul Boyd

The Canadian Research Institute for Law and the Family began a national study of polyamorous individuals and polyamorous relationships in 2016. The institute’s first research paper on the subject was summarized in a previous article in The Lawyer’s Daily [Polyamorous relationships might be the next frontier for family lawyers, Sept. 17, 2017] discusses how polyamorous relationships are and are not accommodated by the domestic relations legislation of Canada's common law provinces, and it provides an overview of the initial results of its national survey on polyamory.

The institute’s second research paper was released in December 2017 and presents a detailed analysis of the data collected from the survey. It examines the sociodemographic attributes and attitudes of people identifying as polyamorous, the composition of polyamorous relationships and perceptions of polyamory in Canada, with the goal of better understanding the prevalence and nature of polyamory to inform the development of family justice policy and legislation.

The survey, which ran over a course of seven weeks in the summer of 2016, yielded 480 valid responses. The majority of respondents (91.6 per cent) lived in British Columbia, Ontario, Alberta and Quebec. Most respondents were aged 25 to 34 (42.3 per cent), identified as female (59.4 per cent) and described their sexual orientation as heterosexual (37.3 per cent) or bisexual (31.7 per cent).

Respondents to the institute’s survey tended to be younger, better educated and wealthier than the general Canadian population. ...

The whole article (March 14, 2018. Registration wall.)

Boyd notes there that 55 percent of the survey's respondents had taken no legal steps to formalize the rights and responsibilities of the members of their relationships. The steps most often taken were "the execution of emergency authorizations, cohabitation agreements, school authorizations, medical powers of attorney and legal powers of attorney." Three-quarters of the respondents felt that the Canadian public increasingly accepts poly relationships.

Boyd also points out that "The legal needs of those involved in cohabiting polyamorous relationships can be complicated, and determining how those needs can be addressed through the current law on domestic relationships, wholly predicated on the assumption that all family relationships involve only pairs of adults, can be still more so. Lawyers assisting the polyamorous must be highly creative and prepared to reassess their understanding of the law. However, given what we know about the demographics of the polyamorous community, serving the needs of this community has the strong potential to develop into a stimulating and lucrative practice niche."

Boyd is the executive director of the Canadian Research Institute for Law and the Family in Calgary.

Vanier Institute / BigStock photo

He summarized the first of the survey's two reports on the Vanier Institute of the Family's site here: Polyamory in Canada: Research on an Emerging Family Structure (April 11, 2017).

Here are the survey's two original reports, as published on the University of Calgary's Faculty of Law site:

– Polyamorous Families in Canada: Early Results of New Research from CRILF (Aug. 24, 2016)

– Second CRILF Report on Polyamory Studies Sociodemographic Attributes and Attitudes (Mar. 27, 2018).

CBC

● As discussed in 2016 on CBC Radio's popular national news-and-opinion show "The Current": Polyamorous families want Canadian law to catch up with their relationships (text article and audio link, Sept. 16, 2016).

● Regarding the Canadian situation, in Law Times: Consider research when it comes to polyamory, by Rebecca Bromwich (Sept. 18, 2017).

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● Also: in the US last month, the Brown Law Offices in Champlin, Minnesota, published Exploring the Legal Complications of Polyamory for Americans (April 18, 2018).

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End of the line for 'Sister Wives' polygamy decriminalization case

The Brown family

The U.S. Supreme Court has declined to hear the Kody Brown family's case that they be allowed to challenge Utah's anti-bigamy law. The court did not address the merits of the case; it decided that an appeals court was correct in ruling that the family did not have standing to bring its case because it had not actually been charged with the supposed crime, merely threatened with possible charges.

In 2013, the federal court in Utah that originally heard their case ruled in their favor that the law was unconstitutional.

From the AP in USA Today:

Sister Wives' polygamous family turned away at Supreme Court

...The justices left in place a lower court ruling that said Kody Brown and his four wives can't sue over the law because they weren't charged under it.

A federal judge sided with the Browns and overturned key parts of Utah's bigamy law in 2013, but an appeals court overturned that decision last year.

The Browns sought to argue before the high court that the law infringes on their right to freedom of speech and religion. The family said they should be able to challenge the law because the threat of prosecution forced them to flee to Nevada and still looms over them when they return to Utah.

Utah's law forbids married people from living with a second purported "spouse," making it stricter than anti-bigamy laws in other states and creating a threat of arrest for plural families. But state officials have followed a long tradition of not prosecuting polygamists unless they commit some other crime, such as child or spousal abuse, domestic violence or fraud.

Police investigated the family after their show premiered in 2010, but closed the case without filing any charges. The family argued in legal briefs that the state should not be able to thwart a constitutional challenge to the law "by changing its enforcement policy during the pendency of litigation."...

The whole article (January 23, 2017).

More news coverage, including another AP story:

'Sister Wives' family says it won't end fight

An attorney for a TV's "Sister Wives" family says the U.S. Supreme Court decision not to hear an appeal of Utah's law banning polygamy won't end the larger fight by plural and unconventional families for equal status.

Lawyer Jonathan Turley said Monday in a statement posted on his blog that he and the Brown family are disappointed but not surprised by the decision that was issued by the high court without comment....

From Turley's statement:

...The Browns remained steadfast in their commitment to equal rights and have become the voice for not just plural families but many families which do not meet the strict definition of monogamy practiced by the majority of citizens.

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Polygamous living, cohabitation recriminalized in Utah with federal court ruling

The polygamy and polyamory rights movement lost a round yesterday, when a three-judge panel of the 10th Circuit Court of Appeals overturned a Utah judge's 2013 ruling against the state's ban on a married person living with another in marriage-like cohabitation or claiming to be married to more than one person, even informally.

The court did not rule on the merits of the case, but instead declared the case moot (i.e. not an issue) because the Kody Brown "Sister Wives" family, who brought suit against Utah, are not in danger of being prosecuted. State prosecutors have said they will only move against polygamists when there's evidence of additional crimes, such as abuse or financial fraud.

Kody Brown, center, poses with his wives, from left, Janelle, Christine, Meri, and Robyn in a promotional photo for ”Sister Wives.” (TLC)

The Browns' lawyer, constitutional expert Jonathan Turley, says they will appeal. The case may reach the Supreme Court.

US News gives a succinct report. Notice that they begin the story with the polyamory angle, not polygamy. Times have changed:

Polygamous Living Recriminalized in Utah With Federal Court Ruling

Cohabitators are outlaws again, but Utah says it won't go fishing.

A three-judge federal appeals court panel on Monday handed a setback to the burgeoning polyamorous rights movement, reversing a lower court ruling that decriminalized polygamous cohabitation in Utah.

The case was brought by the five-spouse Brown family of "Sister Wives" reality-TV fame after local authorities openly investigated them for violating a state law against multispouse living arrangements. The family intends to appeal the latest ruling, their attorney Jonathan Turley said in a statement.

The Browns are fundamentalist Mormons who argue the U.S. Constitution allows them to live according to the teachings of their faith. They fled Lehi, Utah, in January 2011 after a deputy Utah County attorney quipped the family "made it easier for us by admitting to felonies on national TV."

In 2013, the family won a first-of-its-kind ruling from U.S. District Judge Clark Waddoups, who ruled the First Amendment protected the Browns from such a ban and that – in light of the 2003 Supreme Court decision shielding consensual same-sex sodomy from state laws – such a prohibition also violates the Constitution's Due Process Clause.

The law challenged by the Browns says "a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." Waddoups ordered "or cohabits with another person" be deleted and narrowed the meaning of "purports to marry" but allowed a ban on multiple marriage licenses.

Like most other polygamists, Kody Brown only is legally married to his first wife, Meri, though he has children and lives with each of the four women. The family currently lives in Nevada.

On appeal, state officials argued the Browns had no right to sue, as the Utah County Attorney's Office had adopted a policy mooting the case in 2012, after the lawsuit was filed but before Waddoup's ruling. The prosecutor's office policy allows for prosecution of bigamy only under two conditions: when someone remarries without dissolving their first marriage or when bigamous couples or unwedded cohabitators are "also engaged in some type of abuse, violence or fraud."

Though Waddoups dismissed the policy as an attempt to avoid a ruling on the Browns' claims, the appeals court judges found the policy did moot the case and overturned Waddoups' ruling without consideration of the consitutional issues.

"Of course a future county attorney could change the UCAO Policy, but that possibility does not breathe life into an otherwise moot case," the 10th Circuit appeals panel ruled.

Utah federal solicitor Parker Douglas, who defended the state law. says the Utah County policy is, to the best of his knowledge, maintained by every county in the state as well as by the state attorney general's office. He doubts a sudden boom in prosecutions.

The Monday ruling, he says, "means that the law is what the law was before the lawsuit was ever filed. It is a crime under the Utah bigamy statute for someone who is legally married to one person to cohabitate with others who are not their legal spouse, or purport to be married to them."...

Douglas says it's important that the law remain on the books because there's often an evidentiary problem against polygamy-practicing groups that engage in secretive practices such as child marriage and rape.

"To think it's just a matter of consenting adults is ignorant and naive as to how polygamy is sometimes practiced in Utah," he says....

And then the story quotes our own Robyn Trask, director of the Loving More nonprofit, representing the much broader modern, secular polyamory movement:

"We really have to separate the issues of polygamy form the issues of abuse," counters Robyn Trask, executive director of the Colorado-based polyamorist advocacy group Loving More.

"It's actually the abuse that's the problem," says Trask, who lives with her husband but has two other long-term partners. "Abuses don't just happen in polygamy, they happen in monogamy as well."

Polyamory practitioners motivated by religion, like the Browns, or by secular reasons, like Trask, generally don't mix, though they have a clear overlapping interest in decriminalizing cohabitation, which Trask notes also is banned by towns around the country through laws intended to keep homes from being packed to the brim with immigrants or rowdy college students.

Trask is hosting a conference with dozens of polyamorous people later this month [That's Rocky Mountain Poly Living in Denver this weekend, April 15–17, where I'm giving the keynote talk. It's been drawing 100 to 150 people. –Ed.] but says she's not sure anyone from next-door Utah is coming.

The socially ascendant secular polyamorous movement generally has more liberal views of the role of women in relationships, a more open stance toward same-sex relations, and an embrace of more fluid relationship statuses.

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Douglas says he disagrees that the legal trajectory for polyamory will mirror with a decade or so lag the gay rights cases that decriminalized sexual relations in 2003 and allowed for same-sex marriage last year.

"We're not talking about private sexual conduct," he says about comparisons of the Brown case to the 2003 sodomy ruling.

Brushing off a potential analogy to the push for same-sex marriage, he adds: "There just aren't allegations and actual cases where you can say abuse happens at a higher rate in same-sex marriage situations as you can in polygamist and bigamist settings. We have a historical record that's completely different. The issue isn't one of the social institution of marriage, it's one of safe living conditions."

Turley, the Browns' lawyer and a George Washington University law professor, said in a post on his blog the family is considering its next step.

"This has been a long struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case," he said. "The decision today only deepens their resolve to fight for those same rights."

If the Brown family ultimately prevails, "marriage equality" for polyamorous couples likely will remain a distant objective that some practitioners don't even embrace as an end goal. Parental rights and other complicated matters makes a fight for legal marriage less than straightforward.

The whole article, with more pix (April 11, 2016).

● Turley's statement (with links to the court ruling and the previous one). Excerpt:

...We respectfully disagree with the decision, which in our view departs from prior rulings on standing and mootness. We have the option of seeking the review of the entire Tenth Circuit or filing directly with the Supreme Court. We also have the ability to seek a rehearing from the panel. We will be exploring those options in the coming days. However, it is our intention to appeal the decision of the panel....

This case will now go forward as both sides anticipated. The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case....

● This morning's Washington Post provides some more background and analysis: Utah’s polygamy ban restored in big defeat for ‘Sister Wives’ (April 12, 2016).

● Loving More has just issued a press release with its statement on the ruling. If you want to direct media anywhere, Robyn there is always an excellent spokesperson for us.

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In Montana, the Collier trio files to overturn bigamy laws, legalize their multi-marriage

Christine, Nathan, and Vicki Daugherty Collier

And in other poly-marriage legal news, the Collier trio in Montana have gone ahead and filed a challenge to the state's bigamy laws and their denial of a second simultaneous marriage license. Nathan Collier posts on Facebook:

We just filed our federal lawsuit seeking TRUE marriage equality in U.S. District Court in Billings, Montana. The U.S. Marshal's Service should be serving the defendants [county officials and the governor] in the very near future after which we will prepare to have our lives changed forever in many ways, both good and bad. No matter how this turns out I know that we will be on the right side of history and I cannot imagine anyone I would rather face this with than my wives who have loved me through everything and stood beside me even when some would say that they shouldn't have. We are fighting for the right for our family to simply exist without fear of prosecution for nothing more than being a family; I cannot imagine a greater cause worth fighting for.

They will almost certainly be turned down; the question is how high can they take an appeal.

● From an Associated Press story:

Polygamists Ask Judge to Strike Down Montana’s Bigamy Laws

Nathan Collier said he was inspired the U.S. Supreme Court's ruling allowing gay marriage to legally wed his second wife

HELENA — A Billings man, his wife and his common-law wife filed a federal lawsuit Thursday that seeks to strike down Montana’s bigamy laws and argues the state is unconstitutionally preventing them from legitimizing their polygamous relationship.

Nathan, Victoria and Christine Collier turned to the courts after Yellowstone County officials denied Nathan and Christine’s request for a marriage license in June. Nathan Collier said he was inspired the U.S. Supreme Court’s ruling allowing gay marriage to legally wed his second wife.

“I’m fighting for my family’s right to exist as a family,” Collier told The Associated Press. “I can’t imagine a greater cause to fight for.”

Nathan and Victoria Collier married in 2000. Nathan and Christine Collier held a religious ceremony in 2007 but did not sign a marriage license. The three live together in Billings, have eight children from their own and from past relationships and went public by appearing on the reality cable television show “Sister Wives” in January.

In their lawsuit, they argue the Supreme Court’s gay marriage ruling means that limiting marriage to opposite-sex couples is inconsistent with the fundamental right to marry. They also reference biblical figures and historical who had multiple wives as evidence of polygamy’s historical acceptance.

They speak about how they were excommunicated from the Mormon church for polygamy, and how they only want to love, protect, care and financially provide for each other.

The state laws that forbid a man from marrying more than one woman denies them their constitutionally guaranteed rights to equal protection, due process, free speech, freedom of religion and freedom of association, the lawsuit said.

Nathan Collier said he wants a judge to prevent the state from enforcing those laws against consenting men and women in “plural relationships.”

The whole article (August 27, 2015).

● Here's a more detailed story on a local TV station's website: Montana polygamists file federal lawsuit after being denied a marriage license (Aug. 27).

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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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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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Legal group-marriage date: 2040, predicts NYT conservative

New York Times

Ross Douthat, a house cultural conservative at the New York Times, predicts the end date for the slippery slope.

Or what we would call the stairway up.¹

Excerpts from the "Sunday Review" section of today's Sunday NYT:

The Prospects for Polygamy

By Ross Douthat

On every issue save abortion², social liberalism is suddenly ascendant in America. The shift on same-sex marriage has captured the headlines, but the change is much more comprehensive: In just 15 years, we have gone from being a society divided roughly evenly between progressive and traditionalist visions to a country where social conservatism is countercultural and clearly in retreat.

This reality is laid bare in the latest Gallup social issues survey, which shows that it’s not only support for same-sex marriage that’s climbing swiftly: so is approval of unwed parenthood (45 percent in 2001, 61 percent now), divorce (59 percent then, 71 percent today), and premarital sex (53 percent then, 68 percent now). Approval of physician-assisted suicide is up seven points and support for research that destroys human embryos for research is up 12, pushing both practices toward supermajority support.

Oh, and one more thing: The acceptance of polygamy has more than doubled.

Now admittedly, that last one is an outlier: Support for plural matrimony rose to 16 percent from 7 percent, a swift rise but still a very low number. Polygamy is bobbing forward in social liberalism’s wake, but it’s a long way from being part of the new permissive consensus.

Whether it will eventually get there is an interesting question....

...“Polygamy” is just the uncool, biblical-sounding term of art. Call it polyamory or “ethical nonmonogamy” and suddenly you have a less disreputable demographic interested — not only the commune-and-granola set, but the young and fashionable in Silicon Valley, where it’s just another experiment in digital-age social life.... Indeed, greater acceptance is almost guaranteed.

The question is, what then? Can Americans say a permanent “no” to recognizing plural marriage once we’ve rooted for the Browns to get a “My Sisterwife’s Closet” jewelry line off the ground? Can a cultural left that believes in proliferating gender identities and Bruce Jenner’s essential womanhood draw the line, long-term, when a lesbian couple wants to include their baby’s biological father in their legal family, or when the child of polygamists stands up in court to say he wants his dad recognized as his mother’s legal spouse?...

I feel safe predicting that polygamy will not be legally recognized, with fanfare and trumpets, in 2025.

But it might be recognized in 2040, with a shrug.

Read the whole article (May 30, 2015). My guess is he may have the date about right.

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¹ As I've said before: If you accept the framing that civil rights and social acceptance are a slippery slope down, you've lost the debate before you open your mouth. Slipping on a slope is a painful accident that leads downward. Instead, reframe it as a stairway up. Each step is a deliberate, effortful, carefully chosen advance toward a more humane, just, enlightened world.

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

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

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

Whether legal recognition of complex marriages could actually work anytime soon is a different, knottier problem from a purely practical standpoint, as I've described here.

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² Actually, abortion is showing a bit of this trend too.

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