Wednesday, June 04, 2014
The Future of Polyamorous Marriage
Last summer, as the LGBT community rejoiced over the Windsor and Perry decisions, polyamorous activists spoke out to remind us that true marriage equality has not been achieved yet (here and here are some articulate posts about this.) The Bay Area polyamorous community has held a couple of political summits since the decisions, and in both of them several activists expressed their bitterness about how the LGBT community, who they vocally and actively supported in their struggle for marriage, "threw them under the bus" and distanced itself from them as part of its legal strategy.
Indeed, you may remember that this actually came up in the oral argument in Perry. Justice Sotomayor asked Ted Olson:
If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
Mr. Olson responded:
Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.
It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different --
Olson’s response is problematic on various levels.First, it assumes that multiple marriages generate “exploitation, abuse, patriarchy” but presents no data to support this assumption. And second, its distinction between “conduct” and “the exercise of a right based upon status” is murky at best. After all, marriage, between partners of any number or gender, is a “conduct”, and whether or not prohibiting it is based on status would depend upon whether sexual orientation, and monogamy orientation, are a status—with at least some commentators, like Ann Tweedy, arguing that polyamory could be perceived as a sexual orientation. But what is more interesting about Olson’s response is the reaffirmation of the general tendency among same-sex marriage supporters to draw a boundary between the struggle for same-sex marriage and a possible struggle for multiple marriage—a rhetorical move addressing the sort of “slippery slope” argument that one often hears from conservative opponents like Rick Santorum.
As Ann Tweedy pointed out in The Faculty Lounge that summer, the success of the same-sex marriage struggle seems to have encouraged poly people to consider marriage much more seriously than they did when I did field work on the community in 2005. This made me and Gwendolyn Leachman, a fellow JSP graduate recently hired by University of Wisconsin and a terrific social movements scholar, think about the question of poly marriage a bit differently. If poly activists are considering mobilizing for legal recognition of their relationships, what can they learn from the struggle for same-sex marriage? How can they overcome the effects of the LGBT community's efforts to distance itself from the poly community in litigation, political action, and public opinion appeals? and, how can it sort out practical issues like taxation, health care, and immigration? This was particularly interesting to us in light of the history of the LGBT marriage struggle itself, which, as Michael Boucai proves in his meticulous and inspiring historical work, was in the 1970s a radical, unthinkable, conceptually difficult task, very very different from its mainstream image today. We just presented our paper on this at the Law and Society Association annual meeting and got great feedback, and are continuing to think about this.
What do you think? How can a social movement that hopes to build on incremental change overcome the "distancing" techniques of its predecessor?
There is evidence of the problems with polygamy and such details would not be best applied in answer to an oral argument question but in briefs, including amicus briefs, and other sources. They are readily available.
I also don't think it THAT 'murky' to note that polygamy is not a "status" like race, sex, sexual orientation and so forth. It "can" be seen as a status, maybe, at some level, but taking a general view of how the term is understood, sexual orientation or race is separate from that.
The reference to Santorum is a bit too cute as well. Noting that there is not a constitutionally rational ground to classify by sex or sexual orientation here, or noting sexual orientation warrants heightened scrutiny, does not require an "anything goes" rule as to marriage. There are going to be some line drawn such as by age.
The discussion here is to show the proper lines in place. It's lovely to raise broad libertarian ideals here (legalize marijuana? well there is no logical reason not to legalize all drugs) but there are levels of right and wrong here. And, marriage is at stake here specifically. Not polygamous relationships or even cohabitation. Gay rights supporters repeatedly support sexual freedom that allows that sort of thing. Many would also support flexible health care and other rules to some extent.
The lines at some point can become complicated, surely, but same sex monogamous marriage like interracial marriage is an easy call.
Posted by: Joe | Jun 4, 2014 10:44:30 AM
Joe, thank you for your comments. A few questions and responses:
(1) What do you mean by "levels of right and wrong"?
(2) Why does it matter that "marriage is at stake here specifically"?
(3) The statement that LGBT rights supporters "repeatedly support sexual freedom that allows that sort of thing", without getting into what you mean by "that sort of thing", is inaccurate. Like every social movement, LGBT rights activists have always been engaged in a conversation about the place of sexual freedom and sex positivity in the struggle for rights, and about the price of being digested into the mainstream, but in polls in LGBT publications they are consistently against any form of legal recognition for multi-party relationships.
(4) The question of constitutional classification is actually an interesting one. We can see some constitutional paths for arguing sex discrimination, or sexual orientation discrimination, but we do think that a due process argument has more promise in this context. We actually find plenty of murkiness here.
(5) The "easy call" of interracial marriage, or same-sex marriage, is only so from an ahistorical perspective. These were NOT easy calls when public opinion did not support them, and actually merited a great deal of legal debate when they first appeared on the scene. Of course, now we know that, beyond the justifications for them, the logistics involved in permitting them were hardly radical. But they did not seem nearly as clean and easy in the 1960s and in the 1980s, respectively. Which is another valuable lesson in how legal arguments become easy to make, and legal adjustments easy to implement, once public opinion shifts to see the change as necessary.
Posted by: Hadar Aviram | Jun 4, 2014 11:35:19 AM
I think there are, speaking broadly, two sets of obstacles faced by a social movement seeking to change relationship recognition norms. One set is varieties of social and institutional inertia: people say "It's always been this way," courts are reflexively dismissive of claims, there is generally a lack of critical reflection on the rules that restrict access. Another set, once you have gotten people to take the idea seriously, is issue-specific worries about the particular policy change being proposed: so, when it comes to same-sex marriage, people worry about distancing marriage from procreation and children.
It seems to me that the same-sex marriage example helps somewhat with the inertia problem, because it encourages public discussion and critical reflection about relationship recognition rules, and helps very little if at all when it comes to issue-specific worries. It's helpful to think about the somewhat analogous case of the relationship between interracial marriage and same-sex marriage. You can cite Loving v. Virginia in favor of the idea that a marriage status quo can be oppressive and that simply going with tradition isn't always the right approach. But nobody with specific reasons to think same-sex marriage is immoral or weakens marriage as an institution is likely to be persuaded otherwise by an appeal to Loving; there's no inherent logical connection between the two, such that supporting one implies supporting the other. (I take something like the second part of this to be the point made by people who dismiss the slippery slope argument.)
Maybe the first key hurdle poly activists face when it comes to polyamorous marriage is a dearth of work on how specifically polyamorous marriages would or should work. It is easy to write a same-sex marriage bill; you make clear that licenses cannot be declined and legal rights and responsibilities cannot be varied based on the gender composition of a couple. It is harder to do this when you are altering the dyadic structure of marriage. It's straightforward to see how you could make a strong substantive due process argument for polyamorous marriage, but it is less clear exactly what relief would be the right choice to request.
Posted by: JHW | Jun 4, 2014 1:40:28 PM
Hadar and Gwendolyn, My thoughts on poly marriage are still developing, so I don't have any detailed feedback yet. I thought your presentation at LSA was great, and I'm really looking forward to reading your draft.
Posted by: Ann Tweedy | Jun 4, 2014 4:17:04 PM
 Vegans might think, e.g., you shouldn't eat honey. Many still would say it is "more wrong" to eat veal. It is an easier case to make, partially because as a whole there is more of a reason to be concerned about it. I don't think I'm using the terms in some special way. There are levels of right and wrong in law and everyday practice. For instance, let's say people agree torture is wrong. Some will then make a big deal about line-drawing. I still think torture is "more wrong" than some other things.
 Ted Olson was not answering a question about relationships generally. He was arguing a specific case. Also, when you talk about "relationships" later on, that isn't the same thing as marriage. As noted, many support sexual freedom in polygamous "relationships" without thinking state benefits set up as "marriages" should including polygamy. To personalize, I think it shouldn't be illegal -- see a recent case in Utah -- for people to be in polygamous relationships. I can see supporting various benefit and other arrangements to address such relationships. It's a value thing to thing about. Still, the subject heading was "polygamous marriages." That is a specific thing. It includes a range of benefits and obligations. "Relationships" can have limited numbers. They are different things.
 I provided a taste of what I meant -- "polygamous relationships or even cohabitation" and with respect, the LGBT community has shown repeated support for such things. They have supported, e.g., three individuals having interlocking sexual relationships or living in the same residence. It has also been the subject of various fictional works that are LGBT friendly. Gay males particularly are open to polygamous relationships in some fashion. (I wish not to speak as an expert, but from my general reading, that is my understanding). I don't know what the polls say as to "legal recognition" but that just goes to show the need to determine what we are talking about here.
 I think there are various constitutional questions at issue here & am open to various routes. But, currently, the courts seem to see an issue of equal protection at issue -- repeatedly, discrimination by sexual orientation is a major focus of the opinion. Substantive due process is often involved, be it the equal protection component of the 5th Administration, or the requirement fundamental rights (like marriage) should not be denied by illegitimate classifications, but equal protection remains a major tool. It's probably best seen as interlocking like Lawrence v. Texas noted in its reliance on due process but noting equal protection was involved too.
 The word "easy" is a relative term. Few major constitutional debates would be "easy" in that respect on some level -- racism still is a major problem and dealing with it is not "easy." Relatively speaking, however, and yes I'm not talking 1960s here, invidious race discrimination is much more of an "easy call" as a wrong than let's say discrimination by handicap -- so race is applied using strict scrutiny w/o much debate while the latter is still rational basis. If you want to say "much easier call" or whatever, okay. It still holds that it is much easier now to point to the wrongs of racism and discrimination by sexual orientation than opposing legalized polygamy. This doesn't mean -- like it might very well be right to legalize more than marijuana -- that bigger game is not justified & possible.
Posted by: Joe | Jun 4, 2014 6:29:23 PM
I appreciate your first response and apologize for a few typos.
Posted by: Joe | Jun 4, 2014 6:32:49 PM
Joe, one of the lessons of the same-sex marriage debate is that what you, or I, or the public at referendum, thinks is wrong (no matter how wrong) is not relevant, because each person can define marriage as they wish, in accordance with their sexual orientation, provided that there is no harm.
As to the claim about harm, we are specifically referring to polyamory, which of course can include a woman with multiple male spouses, three or more spouses of the same sex, etc., in addition to a man with multiple women. How much of this "harm" you fear is real, or intrinsic to polyamory? Some relationships can be abusive, but that is true in all relationships and is not somehow necessary to the practice of polygamy. Until evidence of this harm is produced, it sounds rather like the harm people used to assume existed in letting gay couples raise children, and that will not do.
Olson was attempting to draw a distinction between "status" and "conduct" in order to explain why polyamorous marriage can still be forbidden under our new marriage laws. He was unable to draw this distinction coherently, just as the California Supreme Court was unable to do so in 2008 (most courts have not tried to do so, but they will probably have to do so soon). As the lead dissent in Connecticut's marriage case pointed out, the binary nature of marriage is based on the fact that there are (or were always thought to be) two sexes, each of which is required for procreation. If there had been three sexes, each of which was required for procreation, marriage would have involved three people. The monogamy condition is impossible to explain apart from the sex condition.
As to the notion of sexual orientation, who is to say polyamory is not a sexual orientation? The entire notion is based on one's account of oneself, apart from anyone else. Even if we concede that polyamory is not sexual orientation, however, we are still unable to explain bisexuality, which is acknowledged as a sexual orientation within academic literature and among gay-rights activists. Many people in polyamorous relationships consider themselves bisexuals; the polyamorous relationship (and marriage, if it were legal) is simply the form that their orientation takes, just as same-sex marriage is the form a homosexual orientation takes.
The point about public opinion is very interesting. Gallup's 2013 survey on mores found moral approval of polyamory doubling in the past decade; a recent sociological study found that young adults' support for polyamorous marriage was significantly correlated with their attitudes toward same-sex marriage (see Charles Negy et al., "Young Adults Attitudes Toward Polygamous Marriage as a Function of Gender, Attitudes Toward Same-Sex Marriage, and Other Sociopersonality Constructs," Marriage and Family Review 49:1, 51-82).
As to why there is not (at present) a big push for polyamorous marriage, I think Steve Sailer has provided the answer: among academics, journalists, entertainment executives, lawyers, etc., gays are popular and fundamentalist Mormons are not. Logic is not part of the equation. Of course, we live in a country where slick marketing is the highest virtue, so once polyamorous people figure out how to run such a campaign -and they have the template before them- they will probably triumph.
Posted by: Mike P. | Jun 5, 2014 1:33:02 AM
Polygamy has long been touted as abusive and an exploitation of women. The continued focus of polygamy being the problem obscures the real problem that is found in some polygamous arrangements. First it is not polygamy (a person with multiple spouses) but the polygyny arrangements, men with multiple wives. The real issue is not polygamy or even polygyny but the misogynist religious cults under which polygamy is often practiced. People blame polygamy as "the problem" when in fact abuse can go on in any relationship or marriage arrangement.
In the deeply religious based polyagamous marriage is often based in male dominated religion. Polygamous cults are not the only place you find these abuses. Exploitation of women and abuse happen in many male dominated religions and cultures regardless of monogamy or polygamy. I believe many people are afraid of looking at the real issues behind abuses found in polyagamy, that is misogynist religion. This is a can of worms that is a world wide humanitarian issue though it is rarely seen as a humanitarian issue but rather as a woman's issue and there for less important. If we focus on the abuse in polygamous cults it is a distorted mirror of the issues of our dominator culture overall and most people do not want to look at that. It is this world-ride culture that has created a rape culture and a tolerance of abuse toward women and children.
Most polyamorous people challenge the dominator culture over-all. The movement has been led in large part by women. Many polyamorous relationships are very cooperative. I find it interesting that when they have "studied polygamy" they are usually studying polygyny and don't look at polyandry (a woman with multiple husbands) or polyamory. What would be learned if there was a study that looked at all these different partnering styles, including swinging, and see where the abuse and exploitation is coming from.
As a long term polyamorous woman my experience has been one of freedom, love, connection and empowerment, certainly not exploitive in any way.
Whether polyamory marriage is something we as a movement should pursue, I personally feel it should be an option for those who want it. Being on the forefront of the polyamory movement I have listened as a triad struggling with immigration issues since they were of three different nationalities. Is their love and desire to share a life together any less valid than a couple? The challenges of poly people can be similar to the issues faced by the GLBT whether hospital visitation, medical proxy, child custody or housing and we need to address these issues as a community.
Posted by: Robyn | Jun 5, 2014 7:59:43 PM
Mike P., I understand ultimately that a certain general public morality -- not personal belief in right and wrong -- specifically a certain type of public harm -- is what is controlling in our constitutional system.
There has been evidence provided -- harm not simply of the sort in "all relationships" -- regarding polyamory. The point remains though that only a tiny number of practices here involve a women with multiple spouses. But, I did not say that polyamory should not be protected anyway though the hows might be complicated. I said that same sex marriage etc. was a much easier case to make.
I don't think it is shown that Olson did not "coherently" make his point. I think more analysis is required there. I don't agree that "we are still unable to explain bisexuality" - anyway, the "orientation" here is not merely "some account of oneself" to my understanding. That's a pretty broad definition.
I'll grant, to save time, it's possible. Either way, attraction to men, women and both would be "explained" using Olson's rule, even if he's wrong. Finally, whatever some court said, bilateral unions, especially marriages with the state privileges and obligations that is the subject of the title of the post (not, e.g., any number of "relationships" among three or more people), need not be based solely on there being two sexes. The idea of "a" soul mate, e.g., is not based merely on matching up genders. This does not mean the bilateral rule is correct.
Finally, I don't think it is about "Mormons." From ancient times, bilateral sexual unions were "popular" in western culture, long before "Mormons" exist, and some of these were same sex unions. I can't adequately summarize the whys of that here. "Slick marketing" doesn't really help me much there though.
Posted by: Joe | Jun 6, 2014 10:26:32 AM
My wife and I have been married for 5 years and poly for life. When we started polyamory we had difficulty with jealousy and insecurities. After we decided to change our rules into something more along the lines of only having open communication and complete honesty things became much easier. We now each are able to date without issue and love the lifestyle! We both enjoy reading about the poly lifestyle and following blogs online. Thanks for the good posting, we love it!
Posted by: PolyCouple | Sep 8, 2014 12:54:19 AM
Thank you for the kind comments! The full paper has been accepted for publication by the Harvard Journal of Gender and Law and can be downloaded here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485853. I'll be giving a talk about this later this month at the Harvard Lambda conference on New Frontiers in Sexuality and will be glad to meet Prawfs and readers there.
Posted by: Hadar Aviram | Sep 8, 2014 12:59:04 AM