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Friday, June 26, 2015

Obergefell and the Future of Polyamorous Marriage

In The Future of Polyamorous Marriage, Gwyn Leachman and I examined the complicated relationship between the same sex marriage struggle and the future struggles of underserved sexual communities. As we argue there, the "spillover" effect of rights on subsequent movements can be ambiguous: on one hand, it opens the door for future arguments as an incremental step on the path to change, and on the other hand, it may generate difficulties based on how movements situate themselves. 

The oral arguments in U.S. v. Windsor were a case in point: Ted Olson argued there that gay and poly marriage differ in that the first one targets status and the second, behavior. The distinction struck us as very unconvincing, but when we looked at the legal doctrines, we were able to point out possible paths and obstacles for poly activists.

Today's decision in Obergefell v. Hodges adds an interesting data point--not so much in the opinion of the court, but rather in the Chief Justice's dissent. As he argues, "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".

To which many advocates of legal recognition for poly families might answer, "you say it like it's a bad thing". But is Roberts right to point out that the entire decision applies to poly families with equal force? I suspect that antagonists of poly marriage will argue that the fundamental right to marry differs from the arguably non-fundamental right to marry more than one person at a time. And given Olson's argument in Windsor, I expect some of these antagonists to be gay marriage proponents (though in the aftermath of their total victory, they may be less afraid of what they might perceive as an unsavory association). For reasons that Gwyn and I point in our article, there may be snags in the legal arguments about equal protection, too--whether it's made on the basis of sex or sexual identity. I don't think I'll see poly marriage in my lifetime, but I wonder if I'll at least witness some forms of legal recognition extended to poly partners. Thoughts?

Posted by Hadar Aviram on June 26, 2015 at 03:33 PM | Permalink

Comments

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Posted by: kayla | Apr 29, 2017 8:40:44 AM

Pranav - I get your data point on crime, I just don't care. Why should women be responsible for correcting or controlling the bad acts or tendencies of some men?

I hadn't thought about the coercion issue, but again, in my view preventing coerced marriage is a smaller problem than heavy-handed regulation of the state in family affairs. And if you're worried about coercion, make both parties show up to register. I would think a short set of questions asked at registration would serve the same function as the questions asked at the marriage ceremony.

On the other hand, the post-Obergefell effort by the Alabama Supreme Court, the Texas AG, etc. to deny marriage licenses to SS couples just seems spiteful.

Posted by: Jamie | Jun 29, 2015 7:09:15 PM

Jamie - I am not really sure about the Alabama bill. I always thought the rationale behind marriage licenses was that it prevents people from being married off against their will. If you are being coerced into marriage you can use that chance to tell the probate judge / registrar and he/she will (hopefully) put a stop to it.

Posted by: Pranav | Jun 29, 2015 2:54:25 PM

Hadar, Jamie - This study http://scholar.harvard.edu/files/sampson/files/2006_criminology_laubwimer_1.pdf seems to make a pretty robust argument for the reduced crime rates claim.

Jimbino - I don't think there is a single person in this world - apart from Lord Norman Tebbit: http://www.theguardian.com/society/2013/may/21/tebbit-gay-marriage-lesbian-queen - who would marry their grandmother because tax issues.

Posted by: Pranav | Jun 29, 2015 2:48:34 PM

It seems that a more compelling case could be made for marriage between a grandmother and grandson or two brothers, who might well benefit greately from the bundle of tax, inheritance, visitation, insurance, immigration, welfare and other benefits the state reserves for a married couple.

Posted by: Jimbino | Jun 29, 2015 12:03:16 PM

Hadar - Yes, I find pretty much all arguments about the marriage and women to be offensive. Somehow we always need to be protected by and from the patriarchy and/or available for breeding and/or some type of stabilizing influence. No thanks. Which is why Posner's arguments are quite easily dismissed, in my mind.

Also, to the point of the state getting out of regulating marriage, maybe it's not as far off as we think:

http://truthinmedia.com/alabama-senate-approves-bill-to-abolish-marriage-licensing/

Posted by: Jamie | Jun 29, 2015 8:42:51 AM

Which is my point exactly: Posner's imagination is so limited that he can't imagine multi-partner relationships that are divorced from patriarchal traditions and based on equality and mutual respect, let alone equal opportunity to seek romantic relationships. And that's before even beginning to tackle the incredibly offensive (and completely unfounded) assertion that women are responsible for sexually appeasing potentially criminal men.

As to the evolutionary psychology on nonmonogamies, this might be of interest: http://www.sciencemag.org/content/348/6236/796

Posted by: Hadar Aviram | Jun 28, 2015 10:47:19 PM

Jame - I agree that policy solutions would be the far better alternative. I just wanted to point out that Posner's argument is not quite so easily dismissed.

As for the source, it's this affidavit http://www.vancouversun.com/pdf/affidavit.pdf Submitted by a Dr Henrich on behalf of the State in the Canadian Case. It's also discussed extensively in the judgement. In brief, it says that as women can have only one pregnancy at a time, bonding with multiple males does not give them any additional advantage. While men can with very little effort father lots of children so it's more advantageous for them to seek multiple mates.

The report is even more interesting as it seems to come into direct conflict with some of Dr Sheff's findings. I guess that's because Dr Sheff focuses more on sex-positive non-religious polyamory while Dr Henrich takes an all-encompassing view.

Posted by: Pranav | Jun 28, 2015 10:32:17 PM

Actually [and I'm sure you're all sick of my saying "as we discuss in the article" :D ], the evolutionary psychology literature we have [to the extent you're into this discipline] supports the hypothesis that sexual non-exclusivity was common for *both women and men* and filled an important role in creating harmony and social variety and diffusing conflicts in hunter-gatherer societies.

Posted by: Hadar Aviram | Jun 28, 2015 7:11:09 PM

Jonathan - yes, very, very far away.

Pranav - I think we would be better off working on more direct policy solutions to crime than managing the number of "marriageable women." Also, can you cite to a source that says "evolutionary psychology seems to favor polygyny over polyandry"? I know it's more common historically, but I don't know if I've seen the type of evidence to which you refer.

Posted by: Jamie | Jun 28, 2015 5:36:02 PM

Okay, I finally got SSRN working. Rather an interesting article. I had not thought about the logistical difficulties aspect at all, but is it really a valid counter-argument? I can't think of a case where a right was narrowed because it would be difficult to administer otherwise.

Re: Posner. His "marriageable women" argument has legs in my opinion (at least in the context of traditional religious polygamy). Unmarried men, after all, tend to commit more crimes than married men and the State unarguably has a compelling interest in keeping crime rates down. Also, evolutionary psychology seems to favour polygyny over polyandry. So, while already married women would in fact be marriageable, there may not be many men wanting to marry them.

Posted by: Pranav | Jun 28, 2015 5:09:50 PM

It also seems not to have occurred to Posner that a system of polyamorous marriage would vastly increase the number of "marriageable women," since already married women would still be "marriageable"! (And, more seriously, Posner's argument sounds like the facile argument the prohibiting same sex marriage is likely to increase the number of people available to enter into straight marriages.)

I also long for the state to get away from regulating marriage, but the political rhetoric surrounding the Obergefell decision in the past few days makes such a possibility seem very, very far away.

Posted by: Jonathan | Jun 28, 2015 1:48:54 PM

Yes, but I like it better when Posner sticks to slamming bad lawyering.

And that was exactly my thought when I read the "marriageable women" line, as your description is the makeup of my family. It's just so tricky to get away from the historical and cultural constructs of marriage. I find myself longing for the state to get away from regulating marriage altogether.

Are you aware of any lawyers or lobbyists who are gearing up for a poly marriage strategy or campaign?

Posted by: Jamie | Jun 28, 2015 10:29:08 AM

Well, that's a classic Posnerian thing to say, no? :)

Interestingly, Posner himself hasn't given a lot of thought to the idea of multi-partner families. At the oral arguments in the Indiana case (where he was clearly pro-SSM), when the attorney for the government argued the slippery-slope argument, Posner was thrown into a fit of giggles and said, "what, that a kid would have three parents? five parents? that's what worries you?" He clearly hasn't thought this out, nor has it occurred to him that the number of marriageable women won't go down if the multipartner family consists of, say, one woman and two men. :)

Posted by: Hadar Aviram | Jun 28, 2015 9:30:38 AM

Yes, and unfortunately folks often can't seem to differentiate between the two. And it's also true that poly folks often don't have good allies on the left. There's just not a good level of cultural understanding around poly - even potential allies are sometimes mystified. In the days after Obergefell I find myself somewhat heartened that now we're free to move onto other issues - such as employment and other discrimination against gays - and this opens the door to better educating society about poly. But it's been a bit disturbing to see how monogamy-focused a lot of the post-Obergefell rhetoric has been. For example, Judge Posner wrote an otherwise great article on Slate entitled "The Chief Justice's Dissent is Heartless" which contains this awful line: "But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women." Really? It's a valid public purpose to maintain the number of "marriageable women"?! That's some medieval thinking about marriage right there. So I just think the picture is mixed. Certainly while my gay friends are celebrating publicly, I'm reduced to commenting on a law prof blog. (I mean, since I'm a lawyer and former law prof myself I enjoy the learned conversation, but it would be nice to be able to be more open about my own relationship status and what this decision might mean for my family long term).

Posted by: Jamie | Jun 28, 2015 8:56:31 AM

Pranav, you'll find a primer in our article, but in short, the term "polygamy" is commonly associated with religious, patriarchal polygyny, whereas polyamory comes from a feminist and queer-positive perspective. Which is not to say that the interests of the two groups would never converge (and we write some about that, too) but some of the disturbing trends commonly associated with traditional polygamy are not part of polyamorous relationships. The multi-party relationship itself doesn't necessarily carry with it the associations of exploitation, oppression, child abuse, and other factors.

Posted by: Hadar Aviram | Jun 27, 2015 6:24:56 PM

Wait, according to my understanding:

Polyamory = Multiple relationships

Polygamy = Multiple marriages

Am I missing something here?

Posted by: Pranav | Jun 27, 2015 1:44:04 PM

Thanks for the interesting commentary! Yes, Gwyn and I address many of those issues in the article. Including the Canadian decision, which we mention in passing as a bastion of the conservative confusion between multi-party relationships and patriarchy (the other side tried to bring me in as an expert witness at some point, but nothing came of it.) I agree that the polygamy thing, or at least the conventional way of viewing polygamy, is at the crux of the response from the right; I also think it's at the crux of the classic response from the left, which is to distance itself from what it perceives as non-palatable. Hence the complicated relationship between the two social movements that we discuss in the article.

Posted by: Hadar Aviram | Jun 27, 2015 10:48:33 AM

But the polygamy thing seems to be the crux of the response from the right - that and the possibility of marrying goats:

http://www.nationalreview.com/article/420420/same-sex-marriage-obergefell-supreme-court

Posted by: Jamie | Jun 27, 2015 10:24:23 AM

Polygamy not the same thing as polyamory.

I am heartened by this language in Kennedy's opinion in Obergefell:

“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

Posted by: Jamie | Jun 27, 2015 10:01:07 AM

Oops, sorry for the broken link. This should work http://canlii.ca/t/fnzqf

Posted by: Pranav | Jun 27, 2015 6:58:33 AM

SSRN is not allowing me to download your paper, so forgive me if you have already seen this judgement by the Supreme Court of British Columbia: http://canlii.ca/t/fnzqf. It rejects polygamy because of a risk of serious harm to (primarily) women, children and society at large. (Be warned it is quite long, about 335 pages.)

Posted by: Pranav | Jun 27, 2015 6:54:54 AM

I think I'm less sanguine about Kennedy's pointed distinction about "two person marriage" that is "a keystone of our social order." That's a nod to both the poly slippery slop arguments made during oral argument and the history of marriage arguments made by conservative justices from the bench. Given the fringe nature of poly in our culture, I too feel it's unlikely that we'll see poly marriage in our lifetime.

Posted by: Jamie | Jun 26, 2015 9:47:48 PM

"it's not the Constitution but a political movement built up over decades that made Obergefell possible"

A political movement rallying around constitutional principles, like various types of equality movements including racial in nature.

I think the majority could have expanded the "two person" factor in their four part test & the briefs did differentiate as did Ted Olson in the Perry case. Basically they only cited precedent involving monogamy. Precedent also protects same sex couples here (Lawrence etc.) But, a key aspect here is that there isn't a similar popular movement. This is a major way constitutional rights develop. Courts often follow, if doing a bit of pushing.

There is right now some right to polygamous relationships. The right to intimate association in Lawrence v. Texas, e.g., furthers unmarried (civil marriage) polygamous relationships. The next issue to me might be some state who penalizes adultery involving a married couple having a relationship with a third party. The "purport" to marry case that seems to be taking a long time is also intriguing.

Posted by: Joe | Jun 26, 2015 8:18:03 PM

Much of this territory is already covered by your and Gwyn's excellent article, but a few thoughts:

It seems to me that the reasoning in the Court's opinion today is legally and politically helpful for poly partners. Kennedy offers four reasons for treating marriage as a fundamental right: (1) personal choice about marriage is "inherent in the concept of individual autonomy"; (2) marriage "supports a two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and promotes the stability of families; and (4) marriage is "a keystone of our social order."

These rationales seem to apply just as well to polyamorous partnerships as to monogamous marriages. Decisions about how to arrange poly and families are "among the most intimate that an individual can make," and many people in polyamorous partnerships may "wish to define themselves by their commitment to each other." If "[m]arriage responds to the universal fear that a lonely person might call out only to find no one there," how much better do two marriages (or more!) provide an assurance of companionship and understanding! As for children, the present legal treatment of polyamory provides very limited and problematic protection of the stability of poly families and also makes it difficult, e.g., to plan for the death of a parent or for the termination of a relationship. Finally, the difficulty that many polyamorous partners have in accessing the rights, benefits, and responsibilities attached to marriage injure them directly (e.g., making it difficult to visit partners in the hospital) and stigmatize them less directly by demeaning poly relationships.

As Roberts points out, Kennedy often talks about the significance of two person unions, but "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." Even if the sort of unions that marriage supports are essentially two person unions, why might a person not be part of more than one such union at a time? And the rationales of personal autonomy, enabling people to define themselves through their intimate relationships, and providing stability for children and families would seem to apply to non-monogamous partnerships just as well as to exclusive two-person marriages.

However, it also seems to me that Roberts is right when he says that same sex marriage proponents should not celebrate the Constitution--it's not the Constitution but a political movement built up over decades that made Obergefell possible. The poly community has not developed a political movement that approaches the breadth or sophistication of the LGBT movement, and unless and until this happens, it is hard for me to imagine much in the way of legal recognition of poly partners much less legal recognition of poly marriage.

Posted by: Jonathan Gingerich | Jun 26, 2015 5:57:34 PM

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