After a dramatic shift in public opinion, the Supreme Court (by a narrow majority) made gay marriage a national reality. In Obergefell v. Hodges (2015), the Supreme Court invalidated on constitutional grounds all remaining bans on celebration or recognition of marriages by same-sex couples. This was, in a way, the climax of what has been called the sexual revolution. Whether behavior was revolutionized, or just attitudes, is hard to say. But both law and society became markedly more permissive. The law has gradually come to accept behavior that was once criminalized and long taboo—cohabitation, fornication, nonmarital childbearing, and same-sex sexual behavior (and marriage).
The decision in Obergefell has had a certain amount of legal fallout. It led polygamists to wonder if their time had come. Did anything any longer stand in the way of legitimizing polygamists and their “sister wives”? Men can have a harem of mistresses, without violating any law: why not actual wives? The wish list is still pending. No court has yet held the constitutional right of privacy broad enough to encompass a right to plural marriage. Yet Utah, a key state, has essentially decriminalized genuine religious polygamists, as we noted in a prior column, by repealing a law that treated cohabitation with another man or woman, while married to someone else as a form of bigamy. Under the new Utah law, many currently practicing “polygamists,” who enter only one legal marriage followed by one or more additional “spiritual” marriages with no license or solemnization, are not guilty of bigamy. And those who attempt to enter into a second or subsequent legal marriage—still defined as bigamy—are only guilty of a minor infraction.
Now the focus has shifted to “polyamory” and the “polyamorous,” a group looking for legitimacy and legal recognition. Like polygamy (with which it has otherwise very little in common), the gay marriage case has been a real catalyst: it has given polyamorists (like polygamists) hope that legal acceptance may be around the corner. As we shall see, they have had at least a small dose of success.
Same-Sex Marriage and the Polygamy Question
The issue of polygamy lurked in the shadows of the same-sex marriage controversy. In the oral argument in Obergefell, Justice Alito raised the issue with the plaintiff’s lawyers: “Suppose we rule in your favor in this case, and then after that a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?” This question set the tone for the Justices who would ultimately dissent and who would use the polygamy issue as an argument against the majority position. The legalization of same-sex marriage, they argued in dissent, will inevitably lead to the legalization of polygamy because there is no way to meaningfully distinguish one from the other.
Nathan Collier, a married man, took the hint quickly and applied for a marriage license for a second, simultaneous marriage. He made exactly the argument the dissent warned against. He lost; a federal district court rejected his argument in 2018. Nor have other polygamists had better luck. Bans on polygamy remain in existence in all fifty states. Kody Brown, the star of the reality show Sister Wives has filed a lawsuit to challenge threatened prosecution under Utah’s bigamy law. Although the law has been narrowed considerably, it still does not legitimate plural marriages. (Kody’s legal trials and tribulations are explained here and here.)
If polygamists want to gain, at least, that legitimacy—the legitimacy now extended to gay marriages—they have to convince a court that the justification for allowing same-sex couples to marry applies with equal force to them. In Obergefell, Justice Kennedy offered four main reasons for recognizing the right of same-sex couples to marry, basing these on the Equal Protection and the Due Process Clauses. First, the right to marry protects individual autonomy, and the right to make personal decisions. Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Third, marriage safeguards children and families and thus draws meaning from “related rights of childrearing, procreation, and education.” Fourth, because marriage “is a keystone of our social order,” marriage is supported not only by a couple’s vows, but by society’s “pledge to support the couple,” offering “symbolic recognition and material benefits to protect and nourish the union.”
Do these principles apply to polygamists? It’s not out of the question for a court to think so, but that moment has not come yet.
From Polygamy to Polyamory
Debates about polygamy in the United States date to the mid-nineteenth century, after Joseph Smith, the founder of the Church of the Latter-day Saints, claimed to have a revelation in 1843 on “Celestial Marriage,” and the duty of church leaders to marry multiple women at the same time. Although the practice was initially kept secret, it came out of the closet after Smith was murdered, and his successors openly espoused and practiced polygamy. One of the leaders, George Reynolds, convicted under a federal anti-bigamy law, the Morrill Act, challenged his convictions on the grounds of religious freedom. The Supreme Court rejected his argument and upheld the ban in Reynolds v. United States (1878). The government has the right to ban polygamy, the Court wrote, regardless of its effect on religious practice. Polygamy, said the Court “has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Indeed, the American system of government and the American economic system, required monogamy. Polygamy led to the “patriarchal principle,” which “fetters” the people in “stationary despotism.”
The Supreme Court has never overruled Reynolds and almost certainly would not do so, but clearly some aspects of the opinion seem quite obsolete. No court today, for example, would dare condemn a practice simply because it was a “feature of the life of Asiatic and of African people.” But if polygamy bans are successfully challenged today, it will be probably be under the banner of the right to privacy—the constitutional protection that allows adults to decide whether to bear or beget a child and whether or whom to marry or have intimacy relations with. Modern-day polygamists want their plural marriages to be legalized—and respected. So far, as we said, without success.
What do polyamorists want? The words “polyamory” and “polyamorous” were coined only a few decades ago; and “polyamory” as an organized movement is not much older. To be sure, there were scattered examples of “free love” communities in the nineteenth century (a quick primer on Victoria Woodhull and her free love political platform can be found here), but none of these lasted. Today’s movement looks like it may have more staying power.
But what exactly is polyamory? Some people may call themselves polyamorous, meaning only that they have more than one partner at a time; usually, too, that their partners have partners; that everybody is aware of this sexual round-dance; and (apparently) nobody seems to mind. No doubt this happens often enough; but it is not core polyamory, as the term has come to be defined. A real polyamorist is a person who has intimate (and consensual) sexual relationships with two or more partners. Note that the relationships have to be intimate—and also must involve a certain amount of commitment. Polyamory in this more rigorous sense has been getting more attention in the media, including a long article in the New Yorker. There have been “polyamory pride days” in some cities; in our friendly northern neighbor, the Canadian Polyamory Advocacy Association celebrates Polyamory Day on November 23. And, as we will see, two cities have gone further and granted polyamorists legal recognition and a bundle of legal rights.
Polyamory, in short, has come out of the closet (to a degree). The New Yorker article described a number of polyamorous households, and various permutations and combinations. For example, a woman in Washington, D.C., who practices psychotherapy, had an “open marriage” with her husband; then the husband’s girlfriend moved in with them. Then more people moved in, including a woman with two children; others come and go, but there is a steady, fairly permanent core.
It is this sort of household that is now looking for legitimacy and legal rights. But what would legal acceptance mean? Assume a polyamorist household of three, or four, or however many inhabitants. In this permissive age, we no longer care what they do in bed, any more than what they do in the kitchen—so long as everybody is agreeable. The issue is whether rights of any sort flow from polyamory. So far, the answer has been, no. Is that likely to change?
Rights accrue, in law, to combinations that constitute a family. That used to mean husband and wife and children, primarily. Members of a traditional family were joined together by blood or marriage. This has become a fairly obsolete definition. Today, many couples live together for years on end, and raise their children, without bothering to go through a wedding ceremony. The law has evolved to recognize legal parent-child relationships, regardless of the marital status of the child’s parents. Moreover, gay couples, and their children, are also family. Can a polyamorous household qualify as a family? For the permanent residents, that is. For those who are in some way committed. Those who drift in and out will not be included. But what of those who actually think of themselves as a family?
Where Can Polyamorists Live?
A group known as the “Scarborough 11” consisted of eight adults and three children—two couples with children, one couple with no children, and two single adults. They were tied together by ties of lifelong friendship and desired to live together as a single family unit. This group was not polyamorous, but they ran into the same trouble that a polyamorous family might under the zoning law. The city of Hartford, Connecticut, served them with a cease-and-desist order because they did not meet the definition of “family” spelled out in the residential zoning ordinance. The chair of the zoning board said they “seemed like nice people” but worried about the “Pandora’s box” that might be opened if they were permitted to stay in the residential zone. Eventually, the city withdrew its suit and amended its zoning ordinance. As rewritten, the ordinance permitted “household units” to live in residential neighborhoods. A “household unit” was defined as a “collection of individuals occupying the entire dwelling unit, sharing a household budget and expenses, preparing food and eating together regularly, sharing in the work to maintain the premises, and legally sharing in the ownership or possession of the premises.” Is there any reason to exclude a group such as this from a residential neighborhood?
Many laws, like conventional zoning laws, can be based on family status, and thus exert pressure on people to live within recognized families. Non-traditional families have faced trouble from zoning laws, public housing laws, child custody and child welfare laws, employment laws, and so on. Thousands of laws provide rights and obligations based on family status, and each uses its own definition. Thus, a polyamorous group might be treated differently within a single jurisdiction depending on the legal issue.
The zoning issue is particularly salient. Zoning ordinances often distinguish residential from commercial districts by defining who can live in a single household. Traditional zoning laws use either a formal definition of family—one that requires formal legal ties such as marriage, blood, or adoption among all members of a household. Others use a looser, functional definition that requires all members of a household to be part of a “single housekeeping unit.” Neither polygamists nor polyamorists would qualify under the former type of statute, as only one adult intimate relationship can be recognized legally as a marriage. They might qualify under the latter type, although the wording of these ordinances varies from one to the next—and “families” differ in their organization, makeup, and degree of interdependence.
The City Council of Somerville, Massachusetts, a suburb of Boston with about 80,000 inhabitants, enacted an ordinance in June 2020 (Ordinance No. 2020-16) which is directly relevant to this issue. The ordinance is at once both bold and conservative. The bold part is its frank recognition that the laws on “family relationships” seem outmoded. Many laws, says the preamble, “were enacted in a time when not all families were properly recognized.” Somerville intended to remedy this situation. The ordinance allows “persons in committed relationships” to register as “domestic partnerships.” Who qualifies? Those who are in a “relationship of mutual support, caring and commitment and intend to remain in such a relationship,” and who also “reside together,” and “consider themselves to be a family.” Importantly, the “domestic partnership” can have more than two members. Members of this family can “file a domestic partnership registration form with the city clerk.” From that point on, the city affords them “all the same rights and privileges afforded to those who are married.”
Clearly, some of the polyamorous families described in the New Yorker article would qualify, if they were lucky enough to live in Somerville. The family could consist of three, or four, or five, or any number of whatever gender and orientation, provided they live together, are “committed,” and think of themselves as a family. The ordinance would also cover polygamous families, of the Utah type, though probably no such families live in Somerville. The ordinance says nothing whatsoever about sexual relations; and it could very well apply to (say) a clutch of old people who move in together and make the kind of “commitment” the ordinance calls for. They are hardly “amorous,” perhaps, whether “poly” or otherwise; but they would seem to qualify under the ordinance.
The ordinance, path-breaking though it is, is conservative in one regard: it requires qualifying families to take formal steps, in order to be recognized as legitimate. A polyamorous household (or, for that matter, a small commune of elderly people) can get rights under the ordinance only if they comply with the ordinance: they must file a domestic partnership registration form with the city clerk; the members have to list all the “partners,” with their dates of birth, the “address of their common household;” all of the partners have to appear and sign, either in person, or before a notary. If all this is not done, presumably nothing in the status of the “partners” has changed. Cambridge, its neighboring suburb, adopted its own ordinance, legalizing polyamory, again, by expanding the concept of a domestic partnership. The partnership still has to be registered. But in Cambridge, the partners do not have to have a common address. Cambridge’s idea of a family does not require the members to live together in a single home.
The Legal Complexity of Plural Families
But exactly what are the “rights and privileges” that the ordinances in Somerville and Cambridge give to the partners who sign on? The state controls inheritance rights, not Somerville and not Cambridge, and if a member of one of these households dies without a will, the state intestacy law would still govern. If zoning ordinances restrict an area to “single family residences,” presumably these ordinances would protect the household. The Cambridge ordinance does spell out some rights: all members would enjoy visitation rights in the “Cambridge City Hospital and all other health care facilities in the City;” they would also have visitation rights in the local jail, if some member ended up there. The city would provide “the same health and other employment fringe benefits to employees with domestic partners as to employees with spouses.” A parent could also give domestic partners access to a child’s school records, and other school matters relating to the child, by filling out a form.
Whether polyamory is a “movement” or not, it is a social fact. Polyamory ordinances do not seem likely to spread to cities in Utah or Mississippi, or even California, in the near future. Still, stranger things have happened. Polyamorous families will probably not gain much in the way of state or federal rights. But litigants might choose to test such rights in court. There are organizations willing and able to advance the cause. The Polyamory Legal Advocacy Coalition is one such organization. Another, The Chosen Family Advocacy Coalition, provides, among other things, support for “polyamorous partners of three or more,” in financial matters, and in estate planning; it will also help in drafting “Co-Parenting Agreements.” The Coalition also engages in “legislative advocacy.”
Inheritance rights are indeed one of the sticking points. A person in a polyamorous family may own real estate, stocks and bonds, or other assets. Then he or she dies, without a will (a bad idea; but a common situation). Who gets the assets? Under the local statutes, the spouse, if there is one, will inherit some or all; children will have rights; if there are none of these, then the assets will go to the closest blood relation. A cousin in Australia, a person the deceased barely knew, will be preferred over a dear friend who spent all of her days with the deceased. Will members of a polyamorous family have any inheritance rights? As of now, the answer clearly seems no. The Australian cousin will get all the money; dear friends, and members of an unrecognized family will get nothing.
Blood relationship is often determinative, too, in issues of custody. A couple lives together; she has a child (from some earlier relationship); they raise the child, and then the mother dies. The mother’s boyfriend never formally adopted the children. Strictly speaking, he has no right whatsoever to custody; never mind the fact that he raised the child, who may have called him “daddy” and for whom he was a genuine father figure. Under parentage law in most jurisdictions, the functional parent-child relationship between the “widowed” boyfriend and the child would not be enough to give him parental rights.
These examples only scratch the surface of the complexity raised by modern variations of the family, including the polyamorous family. The problems are not insurmountable. But it will take some doing to adopt, for these families, new rules, in a legal system which developed its jurisprudence on the basis of monogamy. And any changes would surely meet with a great deal of resistance from the traditional-minded.
Not many people, we would guess, are likely to choose to join a polyamorous family. Other “poly” types of family might become popular—old people sharing a home, for example. Before one decides what flows from family status, there is the question, which the polyamory movement and others pose, exactly what is a family? We can all agree that the traditional definitions no longer works. The new key seems to be commitment. But, unfortunately, “commitment” is a subjective concept. Polygamists do seem to be committed, for religious reasons. Polyamorists: not so obviously, unless (as in Somerville) they take some sort of formal step. And what about our old people sharing a home? Under what circumstances do they constitute a family?
Commitment may be evolving as the key to family formation. Adoption, for example, recognizes formal commitment as a binding element in family relations. It replaces blood relationships with this formal, court-recognized commitment. But blood and marriage and genetics still count for a lot, legally speaking. A man who fathered a child after a one-night stand is still responsible for child support; his feelings of “commitment,” if any, do not matter. Here genetics trumps commitment. Yet for sperm donors, surrogate mothers, and others, genetics may or may not matter, depending on circumstances. Family law is a complicated subject; and balancing the claims of blood, genetics, marriage, commitment, and “social parenting” is part of the modern mix, as the law (and social norms) wrestle with a clutch of issues posed by modern family and quasi-family life. “Commitment,” however, does seem to be on the march. To the extent that this is true, then the claims of polyamorous families, and other variations of family life, are likely to get more and more attention.