Dr. Jillian T. Weiss

After Marriage Equality, What's Next, Polygamy? Yes.

Filed By Dr. Jillian T. Weiss | July 12, 2011 12:00 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: Kody Brown, polygamy, Sister Wives, Utah

sister-wives-192x108.jpgAccording to a New York Times article today, Kody Brown, star of the reality TV show "Sister Wives," is heading to court to challenge the Utah law against polygamy. He has four wives and 16 children and stepchildren.

According to the Times, "[l]aw enforcement officials in the Browns' home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy." The Browns are expected to file suit tomorrow.

To be clear, the Times noted that "Mr. Brown has a civil marriage with only one of his wives; the rest are 'sister wives,' not formally wedded."

I think Mr. Brown has as much of a right to his relationships, as do his wives, as same-sex couples, or people who have multiple sex partners. Since when is it a crime to live together with your sex partners? Well, it is in Utah.

The Times also revealed that the lawsuit builds on the 2003 United States Supreme Court decision, Lawrence v. Texas. In that case, the Court struck down state sodomy laws as unconstitutional, saying that such laws are unconstitutional intrusions on the intimate conduct of consenting adults. "It will ask the federal courts to tell states that they cannot punish polygamists for their own 'intimate conduct' so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses."

Of course, marriage equality advocates were quick to denounce the connection.

The Times article quotes Jennifer Pizer, a UCLA law professor and director of the Williams Institute. "Such arguments, often referred to as the "parade of horribles," are logically flawed," she said. This is because same-sex couples are seeking merely to participate in the existing system of family law for married couples, but "you'd have to restructure the family law system in a pretty fundamental way" to recognize polygamy.

But wait, what is the difference between "polygamy," and Mr. Brown having a girlfriend or four? He's not married to them. Men have girlfriends galore, fathering children all over the place, and they're not put in jail.

When one looks at the nitty-gritty of the Lawrence decision, one must acknowledge that it specifically ruled that a law regulating intimate sexual conduct between consenting adults is not justified by an appeal to generalized "morality."

As I argued in a 2009 law review article in the Touro Journal of Race, Gender and Ethnicity, the Lawrence opinion negated the relationship between the Texas statute and the state interest in moral protection asserted in the specific case of homosexuality. The Court used a historical argument to show that homosexual conduct is not widely considered immoral, demonstrating that there no relationship between anti-sodomy laws and the asserted state interests in morality. Thus, the Court concluded that there was no rational basis for the contention that anti-sodomy laws promote morality.

Is there more of a rational basis for showing that banning Mr. Brown's girlfriends -- "sister wives" as he calls them -- promotes morality?

I understand that marriage equality advocates want to distance themselves as much as possible from the argument that marriage equality leads to broadening rights for other forms of sex and relationships that may be unpalatable politically to many Americans.

But I'm no marriage equality advocate. I'm happy that marriage equality is here in many places in the U.S., and I hope that we have more of that. We need less of the government in our bedrooms and in our pants. But I honestly don't get the argument that Mr. Brown's arrangements can be criminalized by the state based on some vague assertions of "morality," while at the same time holding up Lawrence v. Texas as a shining beacon of fundamental freedoms. Frankly, as I argued in my law review article, Lawrence v. Texas must also necessarily free transgender and transsexual people from the laws that discriminate based on gender identity, denying the fundamental freedom of gender autonomy.

Freedom is freedom, no?


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Multiparty marriage will not be as easy a lift as gender-neutral marriage.

Gender neutral marriage was not really a possibility when the law created one bundle of rights and responsibilities for husbands, and another bundle for wives. But the advances made by the womebn's movement in equalizing the rights and responsibilities made the idea of completing the process of making the marriage laws gender neutral practically a "no brainer." The only required change was to make the parties gender neutral.

Multiparty marriage would require a lot more tweaking than the mere addition of "number neutral" to "gender neutral."

Making the party (and all the other) requirements gender neutral *is* a step toward multiparty marriage, though, just as making the rest of the rights and responsibilities of parties in a marriage gender neutral made it possible toopen the door to SSM.

The classic straight "one husband-many wives" polygyny and "one wife-many husbands polyandry forms may be easier to deal with, though even these relationships, in a fully gender-neutral setting, can't exclude forms of polyamory within the marriage.

Issues with regard to partial dissolution and children will have to be addressed. Ideally, the law should provide several model forms, including the various Heinleinian forms - troikas, polyandries, polygynies, groups, line marriages and cluster marriages. As with the limited liability law in New York, the law should allow for the contractual aspects of multiparty family formation to provide written variations from the statutory defaults.

Divorce and partial dissolution issues could become tremendously difficult - and a legislative framework would be crucial.

It may well be that in a partial dissolution, the default could be that the one leaving or being removed only gets visitation with children, who would be fully supported by the remaining spouses.

I'm not the one to do it, but perhaps someone should start working on a "Model multiparty marriage act" so that the legislatures have something to start with.

I would not assume that the standard mormon-style polygamy would be the only thing available.

The bedrock principles will require adults who are fully competent and undertand the nature of what they are getting into. I would even require that, because of the complicated nature of such marriages, that separate and independent legal representation be required for each party to a multiparty marriage, even those that are "open" (i.e., some will be closed to new members, while others will be open to added members, and will provide for the mechanism of adding new members, which may require unanimity or a supermajority among the existing spouses.)

As you can see, there are a lot more issues to multiparty marriages than just extending connubium on a number-neutral basis.

I'm all for poly relationships and immensely frustrated by the mainstream marriage-equality-focused gay movement's unwillingness to look even slightly beyond its own needs. But I'm also more in the get-rid-of-marriage-altogether boat -- the way I see it, the state shouldn't be privileging certain types of relationships over others, period.

I'd think the vast majority of rights under marriage could be extended rather easily. Hospital visitation is easy. For issues like inheritance, social security, and so forth there are already ways of dealing with multiple beneficiaries and that can be applied in cases with multiple spouses.

As for divorce, it's worth keeping in mind that multi-party marriages are currently being formed and dissolved (sometimes in the courtroom) without legal recognition. Certainly it's easier for one party to leave and maintain their rights when they have legal recognition with the rest. It's the same situation as when unrecognized same-sex partners split up and the biological parent calls all the shots and the non-biological parent is considered a legal stranger. Divorce is going to happy either way, but without legal recognition it just gets messier.

I'm not saying it's not possible, but it's not the sort of thing that is going to evolve very well on the basis of evolutionary caselaw. Getting a MPM version of Lawrence v. Texas, perhaps combined with something like what the MA Supreme Court did on SSM, telling the legislature to do something, is about all I would expect from the courts.

The groundwork is done in terms of the equalization of the bundles of rights - but applying that over a variety of very different MPMs is likely to be a daunting task.

Checklists will be a necessary tool in order that the various options can be addressed in a MPM marriage contract - an MPM is likely to bear a legal resemblance to a business entity, most likely a member-driven limited liability company.

Will the MPM be open or closed to admitting new spouses?
If open, will there be a limitation on numbers (adding a spouse only on the death or partial dissolution eliminating a spouse?) or not?
Particulars on limitations on additions: will there be a requirement that the sex of each added spouse slternate? (In SS-O-MPMs, there should be a clause limiting the sex of newly-admitted spouses - and I can imagine a group marriage of radfems where TS women are excluded by contract)
Rules for admitting new members (where permittd) - unanimous consent? supermajority vote? where less than unanimous consent - options to partially dissolve by objecting spouses?
Rules for different kinds of partial dissolutions - some MPMs might split with the result being two or more resultant MPMs, or even some situations in which some or even all of the splits involve more traditional OS or SS 2PMs.
Dissolutions (fullor partial) by contractual provision without the supervision of a court - permitted?
Spousal asset ownership shares - equal? unequal? provision for separate non-marital property?
Buyout provisions for dissolutions? Appraisals?
Children - care, nurturing and disposition on terminations.
Rights of genetic and non-genetic parents defined?
Contributions of capital, labor, etc.
Will the marriage involve defined roles?
(we can take lots of questions from typical 2PM pre-nup checklists, too)
By One party?
By a committee?
By all spouses?
powers vested in an individual or executive committee when a meeting of the whole cannot take place?
day-to-day operations?
major decisions?
elected? appointed? by whom? terms? term limits . . .

This isn't intended to be a complete list of issues, by any means - just to give a flavor to the many different kinds of structures we can expect as MPM laws unfold.

Unlike a 2PM, MPMs will do better where governance is well defined up front. I can imagine some families operating under a modified Benedictine Rule (shades of my Catholic background . . . )

One other thought - while I'm happily married, I've always wondered what it might like to have lots of sister wives, with no husband. I tend to think of a convent, but without the celibacy . . .

... ah, Joann, just as I have fantasized about living in a "monastery" off in the scenic Alps somewhere, without the celibacy ...

I think we already have a form of legalized polygamy, all you need is enough money ...

Consider some mogul (P.Diddy comes to mind, although I might not have my facts straight) with mega-millions, builds a "family" by fathering a child each with about four different women, then ends up paying $45K/month in child support to each of the mamas ... and in this generous deal, all the various baby mamas have to do is not cause troubles over joint custody issues ... and if they want to keep banging with their baby daddy, that's between the two of them ... it would force the average wage-earner into bankruptcy, but if you head an entire multi-industrial entertainment empire that brings in millions per month, paying child support is like paying the cable TV bill ... and this is all by-the-book legal ... hey, looks like legalized polygamy to me!

And furthermore, P.Diddy (or whomever) ... as long as your children each are getting a healthy and happy upbringing ... I don't criticize you for it a bit!

P.S. Even if you are a mogul, it's not for everyone. Consider Donald Trump, who has similar cheddar, but still opts for the more standard marry-divorce-marry-divorce form of serial monogamy.

P.P.S. Bottom line, though, Dr. Jillian, I agree with your point completely: freedom is freedom.

Don Sherfick Don Sherfick | July 12, 2011 6:37 PM

First, this reminded me of an item I saw recently with a picture of a hamster in the middle. At the top it said in bold red letters: "Same Sex Marriage Will Lead to Bestiality". At the bottom in blue: "Just like women voting led to hamsters voting".

Second: Marriage equality supports indeed do get a bit nervous over your thought because they expect to see it headlined in their relentless campaigns as evidence that "we" ourselves admit that all kinds of multiple marriage arrangements are just the next peg down the slippery slope.

Thanks......I guess.


It's actually not a slippery slope, or if it is, it's a very short one.

I con't conceive of a situation in which marriage cannot be reasonably limited to legal relationships that involve adult human beings who are legally and mentally competent, and capable of understanding the nature of the relationship they are entering.

That leaves out dogs, cats, gorillas, dolphns, horses, trees, bowling balls, sex toys and other animal, vegetable and mineral possibilities.

The issues we have before us on the "slope" are

gender. The women's movement paved the way for making marriage gender neutral, by working to equalize the bundles of rights and responsibilities for husbands so they are the same as those for wives. All marriage equality does beyond this is extend "connubium" (the right to marry") so that it is gender neutral as well.

number. This is the next stop, or maybe not. once each party has the same rights in a marriage, and it does not matter what gender they are, the question of number (beyond two) becomes possible to contemplate - for true multiparrty marriages (MPMs) and not just classic str8 polygyny and polyandry. Many permutations, combinations and possibilities make this a potential headache without havign both statutory models and the right to contract customized marriage arrangements.

duration. Yes, duration. We already know that in at least 50% of str8 marriages, "until death do us part" is merely a polite fiction. Why not pre-arranged duration marriages? Trial marriages, ,arriage "until graduation" or marriage "for the rest of the school year" might make sense in some contexts. Marriage "for a vacation" or "while I'm assigned to the Paris branch" might be an attractive thought,., too.

One form of this already exists in Iran.

So - the limit of the slope - gender, number, duration.

No hamsters! no children!

Britney Austin | July 13, 2011 3:02 AM

I am opposed to all kinds of victimless crimes. While there are many things I find personally objectionable, if they are not harming me or anyone else, it really is not my business. I believe the government should act in a similar manner. Marriage and relationships should not be the government's business until the parties involved make it the government's business such as wishing to enter contracts on behalf of their partner(s), breaking those contracts, or if the government is made aware of someone being victimized in the relationship. If nobody is being harmed or would be harmed by such relationships or marriages then there is no reason they should be illegal.

What's interesting in the way the debate has evolved in Canada (we have a court case that should result in a ruling this fall), is that faith-based polygamists at the centre of the legal issue are getting as much or more backing through legal guarantees of religious freedom as any benefit from the previous ruling on same-sex marriage.

We still and always have to remember, that different from discrimination based on sexual orientation, the arrangement in THIS case, is a LIFESTYLE choice. It's also based on the assumption of one male and many wives. Do the wives get to take on additional husbands?
And in a good many of these situations, the man CANNOT financially support the family, therefore, welfare dependency is an issue.
There is also the factor of other males having no option for a wife. The gender imbalance would be acute and with negative consequences.
In fact, such precedence of negative impact and social consequences has facts and evidence to back it up.

Let's compare this to serial divorce and remarriage. The expanse of family alone stretches a family's resources, both physical and emotional as well as material. Especially if first spouses are abandoned and never remarry.
Let's just say, the concurrent spouse factor becomes extremely complicated and for the state to ALSO expand it's scope as to protecting the interests of the individuals, is demanding a lot.
The single spouse arrangement is far more streamlined and workable.

The state here, isn't required to allow redundancy and excess. Which essentially is what this arrangement is.
So they can't use gay people as a DEFENSE of this, any more than using gay people to discriminate against for the same reason.

Ah, you're playing into the far-right meme on human rights. Choice is not the issue.

The premise of human rights is that people should be treated according to their own individual merits or faults, and not by real or perceived membership in any group. Being poly falls into the latter.

What falls under the former category are the individual behaviours we often associate when we think about polygamy: exploitation of children, manipulation or reduced status of women... poly families can exist without any of these things actually present.

And if coercion, manipulation and abuse are really what's at issue, then that is what we need law and society to address -- not instead seeking where we can make exceptions to the principles of equality.

Regan, the same thing has been said of several minority groups and immigrants. I don't think financial stability should be a requirement of getting married. But more importantly, you're focusing on one particular family to base your advocacy around all non-monogamous marriages. The reality is that Mormon polygamists make up a very small percentage of all non-monogamous individuals. How relationships are structured varies greatly from family to family, but there are many many poly families where each party is allowed other partners, not to mention many poly families that are queer.

Don't think just about the family on Sister Wives when thinking about this, but think about my family. Think about how my work offers me and a partner medical benefits, but I can't use them because my legally recognized partner already has medical benefits and my partner who needs medical benefits is not legally recognized as anything but a housemate. Think about how I'm wanting to have a child with my partner who's not legally recognized and the child will likely have to grow up with the same legally ambiguous relationship to their family members as I had to with lesbian parents.

As for the factor of males not having the option of taking one of us for a wife, well, uh, hypothetically I'm still available but the chances of me being some guys wife are pretty low. It's not a poly thing, but a dyke thing. And I hate the idea that I shouldn't be allowed to marry who I want to because that's one less woman available to be some man's wife. Marriage should be about who I choose to structure my life with, not about who I can be a commodity for.

Even under strict scrutiny, I think there's a basis for restricting, (though not preventing), polygamy.

Polygamy as an institution very often (though not invariably) is used as a means to oppress women. Cases like this appear to be the norm, rather than the exception: it's ones that don't involve such abuse, Heinleinesque relationships of various kinds if you like, that are the exception.

I have no idea what such restrictions should look like, in order to reduce the incidence of abuse to tolerable levels - no worse than monogamy. An outright ban though is unacceptable.

Om Kalthoum | July 14, 2011 10:30 AM

That's exactly my opinion on the subject. And allocation of various benefits would be a nightmare.

Here's an interesting editorial from the Salt Lake Tribune, in favor of the Browns.