Polygamy and Polyamory

On one influential view, having a right to x means that we cannot prevent people from x-ing for certain types of illegitimate reasons. Once these reasons are excluded, we may still have legitimate reasons for preventing people from x-ing. This is an attractive view, because it allows us both to rule out certain forms of overbearing, unfair or discriminatory treatment and to engage in regulation based on utilitarian or interest-balancing considerations. In the case of ssm and polygamy, we might say that ssm is unacceptable because it can only be justified using unacceptable reasons (anti-gay animus, controversial theological reasons, etc.). As you note, however, there do seem to be legitimate reasons to limit polygamy. Whether these reasons are sufficient we can and no doubt will debate.

I wish “polygamy” weren’t the go-to catch-all term for this, for obvious reasons.

From Wikipedia: In common law legal systems, a contract (or informally known as an agreement in some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them.

(emphasis mine)

From a practical point of view, there must be a lot of laws on the books about the rights of spouses, that would have to be changed if there could be more than one spouse.

Do SSM supporters really have to agree that there is a right to marriage? For a lot of us, SSM wasn’t about freedom, it was about equality, and the right we were defending wasn’t a right to marriage, but a right to equal protection of the law.

DeBoer’s argument that “consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty” leads to strange places. Should we permit traditionalists to enter into marriages in which divorce is not allowed, or only allowed with the husband’s consent? Or why should this argument stop at marriage–why shouldn’t it apply just as strongly against laws prohibiting labor contracts below minimum wage? DeBoer is building his case for polygamy on libertarian principles, so why shouldn’t those principles force him to accept libertarianism more broadly?

(Also, it’s a little bit ambiguous what “legalize polygamy” means. If he’s just saying that we should stop prosecuting consensual polygamy as bigamy then I would have to agree, but I’m guessing he’s advocating full legal recognition of poly marriages.)

Poly relationships already are, and have been for awhile now, pretty normal among gay and queer communities. It’s an accomplished fact at this point, not a speculative or imaginary matter.

So in summary, it seems to me the alternatives are not polygamy extending marriage, but polygamy ending marriage as a special sort of contract (and making it a normal contract).

A complicating factor:

(A) I think there are probably relatively few people (maybe a couple percent – likely fewer than the number who are gay – but of course that’s just a guess) who truly feel that they can only be happy in a polyamorous relationship of some sort – any sort – so long as they can have more than one person to love.

(B) I think there are a very, very large number of men who think it would be pretty awesome to be able to have 2, 3, 4 or more women available to get them laid any time they felt like it – particularly if they could have the social sanction of ‘marriage’ to define them as mainstream people rather than deviants.

It feels to me like deBoer is talking about (A) and Rauch is talking about (B).

Is it possible one group might have such rights and the other not? (Does motivation matter if we’re talking about “rights”? Obviously not. And yet….)

I honestly don’t know how to think through all this.

Being married entitles one to certain benefits and legal advantages, most if not all of which were designed with a duo in mind.

3-way polyamorous relationships may or may not fit well into that, but another question is, why stop at 3? If me and my 12 good blokes want to enter into a polyamorous baker’s-dozen union, why can’t we?

And once we’ve agreed that, yeah, 13-way polyamorous relationships don’t have to be allowed, then it becomes a matter of legislative line-drawing … much like the statutory-rape age line … that will pass rational-basis review.

… I have no objections to polyamory myself. I keep thinking I’d love to go to L.A. and write a magazine article about the D&D-playing porn stars I follow on Twitter who live in a 3-way polyamorous relationship.

@kent Rauch is describing the main problem of polygamy (“the problem” in his words) as the fact that “lower-status men” (nice choice of words here) do not “get” (ditto) women because they have been “take[n]” (ditto) by “higher-status men” (ditto), devotes 8 lines to “the problem” then notes in two lines that polygamy is not good for women “either”, and even there he first mentions “competition” between women before (at long last) acknowledging the elephant in the room: assuming sexism as he does (so historically), the problem of polygamy is that it has treated women as chattel. That really rubbed me the wrong way.

But you are totally right that it was an unnecessary distraction on my part to harp on this, and I guess there is a generous reading in which this was an exposé of the mind-set of (traditional) polygamous people, not a reflection of Rauch’s opinion. Anyway, I apologize for it.

I’m just so surprised that John H. is taking so seriously the most moronic form of the rights-based argument that since same-sex marriage is now the law, multiple marriage must be also. (I haven’t read Rauch’s piece yet, but he’s usually sensible, and I’m wondering why he took that seriously too.)

It was said that marriage was a human right because the culture believed pairing off for life was psychologically necessary for mental health. Kids are raised to believe they’ll fall in love and get married, and then some kids fall in love with people of the same sex and they miss out. (There were also arguments about the consequences of pairing off without legal marriage benefits.) There aren’t, to my knowledge, many people who believe that others’ well-being can depend on their being in a marriage with three or five people in it. No one is told by their family that they’ll only be really grown up when they take a third spouse into their marriage (except for small groups of Mormons and maybe some Muslims).

If it’s about rights of association, like, on the other hand, then it’s about saying people should be able to form their own little communities and have them considered marriages: they pool their incomes and so on, and get special tax benefits. Sure, if you think it’s about “rights” in a certain sort of way, this is eminently logical–but a version of the actual argument that is deformed and abstract to the point that it shows the person arguing doesn’t really care about the people who are affected by it, and doesn’t really understand what’s at stake. It’s like, “hey, what are people talking about? oh, it’s about rights, I know what those are!”

In between, somewhere, there’s an idea about sexual freedom. But I don’t know of any laws (maybe they do exist somewhere) against polyamory itself. It’s just as legal for multiple people to live together if they’re having sex as if they’re not.

Personally, I really really wish marriage weren’t about sex. If people want to form random domestic partnerships to promote healthy economy, enhance tranquility, and (optionally) see to the raising of children, tax advantages could be allowed, whyever not. On the other hand, in some (currently outlaw) libertarian circles the Bull Moose gets to marry all the nubile youth, and that is something society has a valid interest in preventing.

bianca @ 22 makes some very good points, but the last bit “It’s just as legal for multiple people to live together if they’re having sex as if they’re not” misses the mark a bit.

There are documented cases of polyamorous groups facing discrimination and being barred from certain living situations that would have been open to a 2 person union. Just as with homosexual unions, there is a significant amount of space between ‘X is legally permissible’ and ‘X behavior is legally protected from discriminatory action’.

Gianni,

Then those laws ought to be fixed. But within living memory, for example, a mixed race couple was legally barred from cohabiting (not simply discriminated against), when it was perfectly legal for them to simply share rent.

Yes there’s a reason, which I’d rather not name (though you do, and AFAICT reiterate). I know there has long been a faction in the pro SSM camp that thought, for example, “Big Love”, would make people more accepting of SSM–though really it was deeply critical of heteronormativity, IMO, and in the end couldn’t persuade itself that Bill Paxton was a better man than Harry Dean Stanton (the backwoods cultist). But that doesn’t mean name checking a faction makes a nonmoronic argument.

bianca
For sure. At least in the US, there are a fair number of really odd rules still on the books regarding cohabitation and gender, number of persons, etc. I recall that my university could not offer housing for sororities that did not have a male wing on at least one floor because of one of these rules. Some real antiquated stuff.

And as for “within living memory” and “a mixed race couple” … I don’t even….
these things are fraught enough in the here and now that I prefer not to think about how things were in recent history.

@bianca steele 27
No tedious commute with shopping on the way home! No getting kicked to the curb some Tuesday before lunch! An equity share! … works for me, I think, best of a world that does have rich and poor in it.

This is true but it seems to me relatively weak as an ethical argument,

Did I even suggest I was making an ethical argument? If so, it was not my intention. All I’m saying is that SSM was an extension of something that exists, whereas legal recognition of polyamory requires the invention of something new. For the record, I don’t believe there are good, compelling ethical arguments against this invention (though I also don’t believe that a society is necessarily ethically compelled to create new legal frameworks to legally sanction individual choices).

Everyone would need to see a lawyer before they got married, maybe. And plausibly this would be a good point for the state to get out of the marriage business – make it entirely a matter of private contract – rather than involving itself more deeply in the kinds of complications that aren’t really its competency, probably.

Somehow, I think the reverse course is much more probable in the near future. That is, because the vast majority of people are apparently satisfied with the actually existing state-sanctioned lump called marriage (or with nothing at all), states will stick to it and leave to the small minority of person who wants something else to figure what they want for themselves and get it through ad hoc legal means. I guess you can call the outcome of this arrangement a marriage, if you insist upon it. Now I may have watched too much HBO, but I had the impression that wealthy Americans could get there already (legally settle in advance many species of financial and familial concerns, for instance).

Also, while we are on the topic, it would greatly please me if Americans realized that viewing marriage as a species of contract is not a legal universal, so that unless all this discussion is meant for the US context only (which is fine), the comparison between marriage and (other) contracts is not obviously relevant (it is, of course, also not obviously irrelevant).

John Paul Stevens, note the spelling.

John@41: There’s an active conversation in science circles right now about the implications of the new overtime rules for postdoc pay in academic labs, and whether this will be an additional burden on already strained budgets. No one has brought up the Polgamy Option yet. I’ll float the idea at one of the science blogs and report back.

Marriage is legally a kind of contract in a lot of places outside the US.

But it is also legally something else in a lot of places (Germany, France, Japan as well as China and Russia if I understand correctly the latter’s family law). That’s all I’m saying.

Or perhaps I’m saying slightly more. Maybe I’m saying that distinguishing between legal relationships (being a child almost universally, being a spouse in some places), human relationships not in the former category (being a friend almost universally, being a sibling in some places) and legal contracts (being an employee almost universally, being a spouse in some places) is sometimes a better perspective-ethically, legally, analytically- than conflating 2 or 3 of these categories.

And sure, my version of a substantive argument has some input from social science and other cultural entities that the traditional point of view might prefer not be permitted in an argument at this level of abstraction.

“All I’m saying is that SSM was an extension of something that exists, whereas legal recognition of polyamory requires the invention of something new.”

That’s very specific to the US, which really is unique in not recognising polygamy because of the way anti-Mormon sentiment has historically motivated enormous hostility to and criminalisation of these unions.

In the rest of the world SSM is new, but polygamy is long established. Most countries have had to recognise polygamy in some form, just based on practical considerations and the needs of trade and running Empires. Courts will generally recognise polygamous marriage contracted overseas by overseas residents as legitimate, and will admit their validity for the purposes of child custody, inheritance, contract disputes, and so on. They haven’t gone the way of the US and decided to pretend those marriage just don’t exist, and there is centuries of legal background in place. SSM on the other hand dates to 2001 and is genuinely new (it’s also not as simple an extension as people like to admit, there has been finnessing of aspects like consummation and the presumption of legitimacy).

@54
Yes, that’s exactly the one I was thinking of. I clearly didn’t recall exactly the slant that you took (which is clearly internally consistent with today’s post), but if memory serves the commentariat was more than happy to bash the right-winger for suggesting that one thing could lead to the other.

If I’m reading today’s post correctly, you seem to suggest that Justice Kennedy’s affirmation of a “right” to marriage and the particular way he went about it actually leaves a quite wide open door for the poly-crowd to rush through if they just get their arguments together. Is that correctly read?

Seems like the basis of a counter-argument is going to lay somewhere in the confluence of protections of children, protections for a ‘weaker’ spouse (in a three way relationship more potential for ganging up), complications in dissolution and allocation of spousal benefits among the parties. Not sure I’m ardent enough on any of these to make the argument myself, or at least make them well.

What are you thinking a French marriage is, if it doesn’t hinge on a sort of contract? Googling “French marriage contract” I am getting hits; they don’t seem to say the thing in question is as nonexistent as you think.

Are you suggesting that I wouldn’t know my own legal status because of… one Google search?

A French marriage is explicitly not a contract in French law, it is the recognition that two people are now married, that is to say have entered a specific legal state accompanied with certain rights and obligations (much as the state of being alive, in that way). The google hits you are getting are (probably) because a “contrat de mariage” in French is something like a prenup in the US (though my understanding is that prenup are much more unrestricted), so of course they exist (I have one, though many married couples don’t; most in fact, I believe). But they are not contracts marrying two persons and the marriage doesn’t hinge on them at all.

Same kind of thing in the other countries I mentioned, but the fine points are less relevant than the general opinion of my 48.

Well I thought deBoer has very little to hang his hat on. His entire argument effectively rests on the contention that, “this is not how rights work”. Well, I’m sorry, but rights are very much contingent on social facts. This is how you get from a thin concept of libertarian liberty to a thick concept of a liberal’s liberty. A lot of ‘rights’ are based on the concept of finding rules and principles that make people better off. So, for example, it is usually okay to form a contract with another party to exchange your labor for money. We generally talk about people having the right to make these kinds of choices freely. But there are all sorts of times when this is not okay. Oh my! This is not how right works! Sorry, maybe this makes it clear that a simple interpretation of the term ‘rights’ is not a useful mechanism for evaluating all questions of justice.

Fundamentally, SSM is much better described as a matter of equal protection of the law. And, yeah, you can argue that poly folks deserve more than a rational basis test. But do they really? Is it really that important to their identity? The fact that gay people are generally, actually gay and can’t just decide to do something else is pretty damn important here. At the same time, I think the argument against legal recognition of polygamy, especially given the current state of society on the relevant issues, probably passes more than just rational basis muster. In some idyllic future, perhaps not.

John H.:

Re. “social science”: I had in mind the kind of argument kent@3 quotes: “If science told you to go jump off a bridge, I suppose you would jump off a bridge!?”

I really do think the best way of reading your post is as pointing to other people’s arguments, with your own writing just a kind of extra that isn’t important. But okay, you make an argument near the beginning, for one: Rauch counters an argument that an obstacle to SSM has been taken away, therefore all arguments to marriage in all cases have been taken away, therefore the right to marriage exists in all cases. Rauch ignores the possibility–as far as I know, only for the purpose of that article, not existentially or anything–that there are positive arguments in favor of two-person, same-sex marriage. He’s just addressing the negative arguments. You accept HWSNBN’s statement that the negative arguments are all that matters (which I disagree with). You kind of accept Rauch’s argument that the negative arguments against multiple marriage are stronger than HWSNBN thinks they are (which I agree with).

Then you go on to say that HWSNBN is actually right, when you think about it in a certain way, that Rauch is wrong. You more or less dismiss the social-science arguments (in much the way kent@3 quotes), and admit that once those have been dismissed, and once you’ve dismissed the possibility of positive arguments in favor of two-person, same-sex marriages, suddenly it’s arbitrary that any kind of marriage shouldn’t be permitted. Well, of course it’s arbitrary, if you’ve dismissed the possibility of the arguments that are possible.

I can only assume that “it’s arbitrary” is the outcome you wanted before you started. That may be unfair. But from what I can tell, HWSNBN really does think “it’s arbitrary” really is the only argument that exists. And from that point of view, your post looks like Serious Academic Support for the idea that “it’s arbitrary” is the only argument that exists.

So, further on, you write as if we aren’t going to know what any multiple marriage is going to look like. Well, that’s not true. It might look like Mormon polygamy (if the LDS Church reverses its position on polygamy). It might look like acceptance of Muslim polygamy. IIRC Judaism even permits polygamy when the state does. So those are the traditional sorts. There will be little groups of people who want to form a family, like there are now, and want some kind of custody, or benefits, or tax relief, but those will be few as they are now. There will be little groups of people who currently have families consisting of more than one adult, and who might use multiple marriage to keep it in the family: people who are divorced and remarried but want to keep their families together. There will be religious cultists like David Koresh. Most of the people who want to be married in groups of more than two will fall into patterns that already exist–just as people who want to be married to someone of the same sex fall into a pattern that already exists. But in the latter case, the pattern that exists is already called “marriage.” Which simplifies things a whole lot. And makes the rest of the post, where you speculate about what plural marriage might look like, on the assumption that we have no idea, seem more or less moot. Again, if we dismiss what we already know, everything magically looks arbitrary!

Okay, this is possibly how it looks from an academic philosophy standpoint. But I assume Rauch knows how limited this kind of argument is w/r/t actual law. AFAICT HWSNBN does not. He thinks this kind of thing is a knock-down argument that can be wielded by anyone with a tall enough soapbox and a loud enough voice.

And look at the first comment on the Volokh article:

“Very good article. In French law marriage is clearly defined as a contract (which requires consent, subject, cause and capacity) although it is a specific contract because of its particular subject. By the way this debate also exists in France where some lawyers say marriage is more an “institution” than a contract.

On this topic see art. 144 of French Civil Code : ‘A male and a female may not contract marriage before they have completed their eighteenth year’ and art. 180 ‘A marriage contracted without the free consent…;”

eh, that second paragraph should be italicized too.

My goodness, are there lawyers in the CT commentariat? The whole scuffle over multi-way contracts seems to have died down, but crikey, surely you’ve heard of, um, a partnership? Each partner owes duties to the others collectively, and the partnership agreement is a contract. A general partner may act as the agent of the others. There are law firms with 1,000+ partners. Conceptually this is far from exotic. And debating whether marriage “is” a contract is of course fruitless, like all definitional debates in law. It is what we make it. The hard question is whether we should or must open the marriage partnership to more than two people.

OTOH some family relations are decidedly not contractual, so I can vaguely understand the French position represented above. Parenthood and guardianship are not contractual and are not negotiable on terms other than those set by the state, although I believe this is because at least one party enters the relationship as a minor. If the French want to call a voluntary legal relationship between adults that imposes reciprocal rights and responsibilities “not a contract,” d’accord, have at eet, but that doesn’t change anything that matters.

Haven’t read most of the OP or comments b.c I don’t want to spend time on these particular issues right now, but the first comment in the thread

Man, I just wasted a lot of time thinking “this is bizarrely coherent and intelligent for a John Quiggin post.” Not unclear at all!

is a bit absurd (not to mention gratuitously insulting). Holbo’s posts are often thoughtful, but the notion that they are models of coherence compared to JQ’s doesn’t hold water, imo. Both posters are usu. coherent enough, in their different ways (which is not to say, of course, that I always agree w them). Why the first commenter in the thread felt impelled to engage in this little bit of cattiness, I don’t know.

My problem with the polygamy debate, which I have greeted with a week-long eyeroll, is who are the beneficiaries? Who has been forced to live a double life because they can’t join in a polygamous marriage? Whose oppression are we ending? I mean in the case of fundamentalist/cultist polygamy I can well think of who we’d be hurting by legalizing it – young women – but who are we helping, that offsets this? The whole debate just seems like straight up rules lawyering.

#74, #78 – which is the whole point. There was a time when business and law partnerships were associations of a small number of people who knew each other well, and being a person’s partner was a relationship that required a strong bond of trust and reliance. Being a partner meant you profited from your partner’s work and you had legal liability for your partner’s mistakes. You didn’t enter a partnership lightly, and it was difficult to get out of one.

Today, with changes in the law that permit partnerships with thousands of partners, partnership is merely one a number of types of business organization. The relationships are firmly governed by law and explicit written contracts, not by trust. Maybe that’s better, but the concept is entirely different.

So with marriage. Marriage used to mean sexual exclusivity; it doesn’t mean that now. Anyone can sleep with whoever they want. It used to be the only socially acceptable way for unrelated adults of different sexes to live under one roof. Not so any more. It used to be for life unless there was a serious breakdown in the relationship; not now. It used to have serious implications for the legal rights of children; it doesn’t anymore. It used to deprive women of their property rights; not today.

What it means now, mostly, is the right to certain government and employment benefits, a limited sharing of legal responsibility to others, and a public declaration of a binding relationship to one other person that affects how others deal with you. You are expected to share a home. You both get invited to things. When one is sick, you both go to the hospital. You are viewed, more or less, as a unit.

Now imagine multi-party marriages with five or ten members. How would they function? Would you have to invite all ten to your barbecue? Would a hospital have to take a vote of nine on end-0f-life care for one? Would the employer of one extend health insurance to all ten and all their children? Would the government provide social security survivor benefits to nine? Could you marry nine people in Honduras and bring them all into the US as your spouses? No, that’s not going to work, is it?

Unlike modern business partnerships, which are nothing like old-fashioned partnerships but still make sense for some businesses,large polygamous marriage makes no sense. They would have no social or legal function, because socially most people would not recognize them as marriages and extending existing legal rules to them would break down almost immediately.

I have to ask, do advocates of polygamy think that it should be legal everywhere, or just in the West? When women’s groups abroad campaign to end patriarchal polygyny in their own countries, do you think that is misguided on their part?

This is so bizarre. It’s as if the obsession with marriage has finally been taking past its breaking point and turned into a reductio. (I don’t just mean you, JH—just this whole debate.) I mean, look: it is presumably within our ken to grant complicated groupings of people complicated sets of legal rights. I take both Kyle C @74 and Bloix @82 (first para) to be evidence of this. So if we want to devise a way to give grant a certain bundle of legal rights and entitlements to certain groupings of individuals, let’s just do that—whether the parties in such groupings are fucking each other is surely irrelevant. (I expect the parties in partnerships aren’t, for the most part). If the worry is that Mormons, Muslims, or whoever would be able to take advantage of such rights-offerings to set up unjust or oppressive arrangements, surely we could prevent that by other legal means.

And anyway, the idea that marriage grants one some special sort of dignity is so incredibly idiotic, it deserves to be scrubbed from history, not made the basis of “extending” marriage. I mean, maybe I should marry myself? Can I?

OK, it seems everyone’s avoiding the elephant in the room. Basically, Rauch is assuming that there are innate differences in median male and female sexual preference, while the advocates of polygamy legalization do not. Rauch assumes that if polygamy was legal:

1. Wealthy, high status and otherwise ultra-attractive men would seek multiple spouses and would find women willing to join in polygynous marriages.

2. Wealth, high status and otherwise ultra-attractive women would NOT want to seek out (and financially support) a stable of young, handsome studs, at least not to the same extent as men.

3. Therefore legalized polygamy would play out like historical polygamy – a handful of men at the top taking multiple wives without compensating behavior from women. If we start with a roughly equal number of men and women, this will inevitably result in some men losing a game of marital musical chairs and not being able to marry. Note that it is irrelevant how attractive the men at the bottom are in absolute terms – simple arithmetic says some of them are bound to lose. Blaming them is like blaming the unemployed in a depression.

4. Again, based on historical polygamy this is likely to lead to a generally unpleasant society for anyone not a high status man. Rauch isn’t making any moral comment on whether the male behavior is appropriate – he is simply saying that if we have 15-20% of the male population unable to ever marry or otherwise have relationships, they’re likely to react poorly.

What Rauch doesn’t note is the gender selection technology could fix this in the long run. If people come to realize low status men are unlikely to marry, low status families may choose to mostly have girls, thus eliminating the surplus male population over time. Whether this is a good outcome is a judgement call.

Now Rauch could be wrong. Women might flat out reject any idea of becoming a second/third/etc wife to a large enough extent that polygamy has little social impact. Alternately, we could see wealthy women embracing polyandry and paying for their own personal stables of lovers, thus balancing out the Newt Gingrichs of the world. I think there’s a reality show for Kim Kardashian here. But I think it’s important to make the underlying assumptions clear.

Personally I’m inclined to side with Rauch if only out of precaution. Unlike gay marriage, there’s a plausible scenario for polygamy harming society and no compelling argument to allow it other than “I want it.” Laissez-faire works poorly in economics for anyone not on top of society – I’m inclined to think the same for sexual mores.

Actually, the specific problem with polygamy and surplus men arose because of a conflation of “high-status” and “male”: there were high-status men to absorb the surplus low-status women, but no high-status women to absorb the surplus low-status men. In today’s less-sexist world this shouldn’t be as much of a problem.

[which I wouldn’t have thought needed pointing out…]

brandon @80: All through the legal evolution of SSM I’ve thought of a um triplet I’m friends of friends with consisting of two cisgendered women and a transgendered woman who have been living together for at least 15 years. I don’t know if they actually want to be married, but I’ve always wondered if they were greeting the whole business with eyerolls themselves.

“maybe this was unclear – for me this isn’t some exercise in pure abstract principle for principles sake, ergo I’m on the hook for any absurdity that might seem to follow from pure logic.”

I was a bit confused on that score, if only because your original post echoed some of deBoer’s language, and deBoer really is committed to the abstract principles, marriage-as-a-fundamental-right-consequences-be-damned, which would seem to apply as strongly to a thousand consenting adults as strongly as it does to three.

It seems like the pragmatic thing to do would be to let poly people form appropriate contracts, enforced by the government when reasonable and perhaps even with civil union-like benefits but not recognized by the government as “marriage”, wait a generation to see how those turn out, and if it seems to work out give them full marriages.

a lot depends on whether there turn out to be, really ‘poly people’

Well, there already are poly people, obviously. (I’m not sure what the “really” is doing there.) And if polyamorous relationships/hookings up/whatever become more socially acceptable, it stands to reason to that a lot more people would “turn out to be poly”. (Hell, it wouldn’t surprise me if most people turned out to be, well, non-mono in one sense or another.) And if we assume that under conditions of social acceptance, various other social assumptions held fast, then yeah, it’s not all that unlikely that you’d have poly people fighting for marriage rights. It’s just that the moral I draw from this is somewhat different from the one you draw.

He doesn’t, that I can see, actually say that he would accept a thousand people getting married. But it’s logically implied by what he does say–that marriage among any set of consenting adults is a right, and rights must be respected no matter the consequences.

One of the arguments against the analogy with SSM is that being a gay guy who has to marry only a woman is a way bigger hardship than being a straight guy who’d like two chicks on the line – y’know what I mean: nudge nudge, wink wink – but has to settle for only one.

Yes, but it’s not the argument that I’m making. (I can’t tell if you think it’s the argument I’m making.) I think it’s altogether possible, plausible even, that lots and lots of people (and not just men) are forced into monogamous relations because that’s the only thing that’s really socially acceptable, outside of fringe niches. And this leads to cheating, breakups, divorces, unhappiness, etc. (I’m thinking). A lot of such people (among whom I don’t count myself) would presumably be a lot happier if polyamory were more socially acceptable, and would perhaps choose what look like some kind or other of polyamorous relationships. (Though I’m not sure what’s supposed to count as enough of a “personal hardship.”)

But of course, given the social assumptions we as a society take for granted, the only kind of solution that seems possible to this is an extension of marriage—i.e. a new kind of legally sanctioned social conformity. It’s this that I find utterly backwards.

Why is it always assumed that slippery slopes go downwards? More often than not they slope upwards, making them difficult to traverse; that’s most likely the case here.

Serial monogamy is scarcely unknown, and the legal situations thus engendered seem to be manageable. I know one set of families in which serial monogamy was kept in a small circle, with lots of half-siblings and alternative homes in which to seek refuge in the event of an upset. It seemed to work reasonably well for them. Perhaps a corporate or co-operative model would have been more equitable, but why go to the trouble of crafting an optimal structure when jury-rigging gets the job done?

I think one of the real complexities would be non-circular graphs. If you think of marriage as a collection of people and links there’s no reason why the linkage has to be bounded, let alone isolated. It’s quite possible (in the sense that I’ve seen it often) for A to be in a relationship with B. Let’s symbolise that with an = sign, meaning “two way relationship” rather than the traditional “A is now the same person as B”.

A “perfect triad” where everyone is married to everyone is thus “A = B = C = A”, because I can’t draw circular links in ASCII. A perfect quad is harder to draw because we need diagonals. But hopefully you get the idea.

Those are both bounded and isolated – there are a finite number of parties and they’re linked only to each other, there are no outgoing links.

More commonly polypeople are in V or W shaped relationships. A = B = C but A is not in a sexual relationship with C. And so on… A=B=C=D=E=F… and everyone has exactly two relationships. But you can bring your whole graph theory goodness into this, so A is married to B,C,D,E but C is also married to Q who is also married to X and Y, and Y is also married to Z, who recently divorced A.

“Basically, I’m against frustrating people’s preferences about something that matters a lot to them, unless there’s a very strong reason why we have to sacrifice their desires, to save society from disaster.”

Libertarian.

;)

JH @91
“Per the post, I fully admit that plausible social harm arguments can be made here that are just lacking in the SSM marriage case. Legally, there is going to be a stopper. The question is: do I think it would be a good idea, morally, to use that stopper? Or would I instead think the best thing to do would be to try to craft legislation that allowed somewhat weird, previously impossible plural marriages – without saying anything flagrantly stupid. Just because, other things equal, if people are going to be happier that way, you should let them. ”

My problem with this all is that, it seems to me what is not being asked is “why is marriage something that the state ought to be involved in”. As somebody pointed out before, the arguments FOR formal polygamous relationships were of a libertarian type. But I thought libertarians questioned the need for the state to be involved in marriage in the first place. In a liberal society where the state does not declare sex outside of marriage to be a crime, nothing is stopping people becoming involved in these sort of relationships, or entering into contracts regarding property rights.

The legal recognition of marriage as an EXCLUSIVE relationship, has everything to do with giving people special rights and special responsibilities exclusively (towards specific individuals and dependents). Sure that could be extended to multi-person relationships, but the expense of enormous increases in complexity (and an increase in the already problematic danger of exploitation). Why should the state get involved? Surely that is key question – not whether the institution could be extendable. SSM in my view is not a slippery slope taking the state completely out of marriage. Polygamy is.

I still don’t get what the difference is supposed to be between the two terms. Just that polyamory is a less traditional way of labeling the concept?

JanieM, I believe the polygamy refers specifically to marriage relationships, so people in polygamous relationship by definition have more than one spouse. Individuals in polyamorous relationships are not necessarily married.

JanieM: “I still don’t get what the difference is supposed to be between the two terms. Just that polyamory is a less traditional way of labeling the concept?”

The Greek root -gamy is used not only for marriage, but also other kinds of reproductionn-related words in biology, so it’s icky. Polyamory is about who you love rather than who you are reproducing with, so it’s obviously a lot more classy and acceptable in a U.S. context.

Like Moz and Bad Jim, I’m worried about the algebraic aspects.

One thing is pretty clear: legally, divorce will have to work as an all-or-nothing deal (i.e. when any member of an n-tuple divorces any other member, then all members are simultaneously divorced from all members), or you’ll have to give up on common-property laws.

If you allow A to divorce from C but remain married to B, and C to divorce from A, but remain married to B, and if they live under a common-property regime, then it may be unclear whether A & C share a piece of property or not. Qua divorced, no; qua sharing it with B, yes. Divorce is not necessarily transitive, but “common” is.

Could the partnership model help out here? Surely the 1000-member law firms mentioned above are able to dissolve partially and selectively (i.e. not by the “all or nothing rule”) without the property-relations going to hell. They draft special agreements and contracts for who gets what in the event of dissolution.

Yup, that will work. But it’s a nightmare (or a lawyer’s wet-dream, which is another way of saying “nightmare”) and exactly what common-property regimes are designed to avoid.

Different point:

JH: “But Rauch seems a bit too quick to think he knows just how it would go to hell. A bit more agnosticism, maybe. ”

There is reason to be more open-minded about how SSM may work out, and to be less agnostic about how polygamy will work out. SSM has never been tried in anything like the form or scope that it is now being tried. Polygamy has been tried, over and over again, in all lands and periods that we know about. It has always and everywhere worked out badly, esp. for women. Agnosticism about that fact would simply be turning a blind eye to the historical record.

Marshall @119
You have got to bit kidding, surely. Co-religionists? I don’t see how committed antagonistic groups of entitled extremists reduces acrimony. Use Syria and Iraq as an illustration in your answer.

Well those are eighteenth century passions, like hunger. And I’m not sure why I assumed that being a utilitarian meant you weren’t supporting the Blackstone pursuit of happiness part of the argument. Though I’m also not sure why you think Rauch’s utilitarianism can’t be consistent, but that would be off topic.

John,
I think though you (and perhaps everybody else) is missing a key point. Historical polygamy was always a very unequal relationship (basically an ownership thing). One notable difference with marriage (as it is in most modern legal systems) from most contractual relationships is that it is exclusive. This is both powerful and dangerous. That danger, implies careful regulation. (You can see that easily with for instance employment relationships – that the combination of exclusivity and differences in power is potentially problematic.) It is easy to understand what exclusivity means in a monogamous marriage – but I see it is as very difficult to define in the case of polygamy. In fact, I think legal polygamy must be a different sort of thing (maybe a partnership is the way to see it). I’m not sure you are not making a class mistake here.

“But ‘it’s never worked before’ is not, for me, a totally decisive argument. (After all, SSM has never worked before either.)”

[Disappointed sigh.]

Do you really want to equate the non-success of things that have never been tried before, with the non-success of things that have been tried before, many times?

“The lack of past success with X, which has never been tried before, does not dissuade us from trying X for a first time. Therefore, the lack of past success with Y, which has been tried ten thousand times and never worked, should not dissuade us from trying it a ten-thousand and first time!”

That’s what you’ve got? You’re going to equate untried experiments in innovation, with the paradigmatic folly of doing the same thing repeatedly and expecting a different result?

P.P.S.
To try an even different tack, maybe the legalisation of SSM was dependent on an evolutionary change in HSM (towards a partnership of equals), rather than an extension of the old fashioned notion of marriage.

Yes, okay, in a way it was a dumb question (polygamy vs polyamory). In another way, in my pre-caffeine morning brain, what I was trying to get at was: both terms refer to relationships among more than two people; and neither term constrains what the genders of the people are (unlike polygyny or polyandry).

*****

Perhaps a response to one of the utilitarian arguments against polygamy would be to only legalize plural marriages where the number of female partners was equal to or greater than the number of male partners.

What would be the point of that? It seems like just a way to reproduce the inequities of e.g. Mormon-style polygamy, it precludes, for a woman, the option of having several male partners if she wants to, and it also precludes partnerships among groups of gay men.

So, huh?

“Marriage is exclusive. Polygamy isn’t exclusive. So polygamy shouldn’t be allowed.”

That is not what I’m saying at all. What I am saying is that they not obviously the same sort of thing. And the history doesn’t help – hence my P.S. & P.P.S. because I don’t think marriage is the same as it was in the past. In the past “a man took a wife”, and maybe “he took another”. Nobody thinks about things that way anymore. (Hence there is no question about who plays what role in the SSM).

JanieM, now it’s my brain that’s misfunctioning, and I’ve had my caffein. I mean to say marriages where the number of male partners was equal or greater than the number of female partners were the ones that would be permitted, to avoid Rauch’s nightmare scenario of privileged men scooping up more than their share of available women.

But your point about group marriages of gay men suggests another possibility, like carbon trading; a man can marry two women as long as he gets a sign off from a gay man who is marrying another man so that the gender balance of available partners is preserved.

People want to do this thing….

If there is something a lot of people really want…

People have touched on this, explicitly and by implication, but separate from all the deep philosophical questions, the practical side of this issue hinges on the mushing together of the deities only know what variety of constellations and arrangements under the misleading label “this thing” — as if it was just one thing, and we knew what it was. In reality, at this point it’s nothing more specific or carefully defined than “more than two.”

If you want to start a political campaign to try to get polygamy legalized (unlike, say, just flaming about it), sooner and later you’re going to run into the question of what thing it is, exactly, that you’re asking for. And then there’s going to be a big problem, because I’d bet that if you found a thousand people who said they wanted polygamy to be legal because it would make their lives happier, you’d find several hundred different definitions of what they thought they were talking about. Several hundred of the thousand would probaby want Mormon- or Muslim-style arrangements, and the rest would be all over the map.

During the years when SSM was being fought for in the U.S., people often gave “over a thousand” (counting state and federal) as the number of rights and responsibilities encoded in the law that gay couples were being denied because they couldn’t get married. As other people have written or implied in this thread (most vividly Bloix @82), every one of those provisions is currently framed on the assumption that the number of partners in the marriage is two. Every one of those provisions would have to be examined and perhaps revised to specify how things would work in a more-than-two partnership. This isn’t impossible, but it’s not a minor task either, and tackling it would surely require at least a rough consensus among the people lobbying for the right to more-than-two marriages.

Trying to think through how it would work leads me in two directions:

First, some of the complication of more than two (social security survivor benefits, for instance) could be eliminated if we had a decent, universal, birthright social safety net. Fat chance, at least in the U.S.

Second, maybe instead of an automatic, predefined bundle of a thousand rights and responsibilities, any pair or group who wanted to get married could check off which of the rights and resonsibilities they were signing up for. Some configurations would be forbidden as being exploitive, others would require more than a simple checkbox to define.

But at that point, why even keep calling it marriage?

*****

Personally I tried it for a very long time (obviously not in a legalized arrangement), and you couldn’t get me to do it again for any consideration. But if people want it, and they can form a coherent program for working toward it, at the very least it will generate a lot of interesting ferment in terms of people having to think through what marriage actually is and should be.

Lee A. Arnold:

“People are already polyamorous in monogamy, whereas they cannot be homoamorous in heterogamy. That is pretty much the practical point of SSM.”

Uh, what? Married men have sex with women they are not married to, and that counts as being “in” monogamy? Married men have sex with men they are not married to, and that does not count as “in” heterogamy?

I just don’t understand what your claim is here. Has not traditional, monogamous and heterogamous marriage been considered a barrier to “polyamory” (sc. adultery with the opposite sex) just as much as it has been considered a barrier to “homoamory” (sc. adultery with the same sex)?

Am I the only one who thinks that patriarchy and misogyny were never valid reasons to ban polygamy in the first place, because adults who want to screw up their lives by degrading themselves for religious reasons should not be prevented from doing so, and can deal with the consequences of their bad choices on their own?

I don’t have a “yuck” response to polyamory.

I have a “how’s that tax return gonna look?” response to polyamorous marriage.

Another small practical snag with true polygamy in many countries: one of the key benefits of marriage in many countries is automatic assignment of children in a marriage to the husband. In ancient one-husband polygamy this was also fine (in fact, the way it enabled one man to have many recognised children was almost the point of the institution). Modern polygamy would clearly have to allow multiple husbands for one woman, which means that presumably either one of the husbands would have to actually claim paternity, or you have to register more than 2 parents, which would break a lot of other legal structures. I think the mix of these kind of practical legal issues, and the ‘algebraic’ issue strongly suggest that true polygamy would have to be built up as a completely new construct, which just wouldn’t look very much like traditional marriage.

@147
“I have a “how’s that tax return gonna look?” response to polyamorous marriage.”

Anderson, buddy, please take the afternoon off – hit whatever your local version of the Gold Club is, and come back to the discussion when you have the right frame of mind to think about the full range of implications, positive and negative, of polyamorous marriage.

I can’t believe nobody has stated the obvious yet: Polygamy is sanctioned in the Bible so what could be wrong with it? After all, 30% of Americans claim to be Biblical Literalists.

Patrick @145
“Am I the only one who thinks that patriarchy and misogyny were never valid reasons …”

a. Were they in fact historically the reasons?
b. Yes you probably are the only one thinking like that.

“I’d like to have an argument, please.”

reason @156

You agree that people wanting to practice polygamy and enter into some sort of property trust are not stopped from doing so.

That seems like a strange thing to agree to, since it’s not actually true.

As I said before, the legal system is conflicted about this and it only seems to work if everyone agrees before they deal with the legal system… so it doesn’t work. The legal system is there specifically for when people don’t agree. What will happen, do you think, when two women can both prove to the required standard that they were in de facto relationships with the same man? I predict even less justice than usual.

There are huge social issues as well. “not prevented from…” Hmm. Some examples.

I ring my local school and say “we want to enrol our child”. They say “name the parents”… but there are only two slots in their system and we have four parents. In a sensible school they might, possibly, have a “step-parent” position or two. But since a child can only have two legal parent-or-guardian’s, most don’t bother. And I’m not a step-parent, I’m a parent, 1/4 of the parents my child has.

We go on holiday, just us adults. We check into a hotel, asking for a room with two double beds as we’re a married quad. Might work in the northern continental US, in the better hotels. Unlikely to work in Arkansas.

My wife goes into hospital. My husband is with her at check-in, so is recorded as THE spouse. I go to visit her, taking one of our kids. Probably ok during visiting hours, unlikely to work at other times if she’s not awake and demanding they let us in. Too bad if her phone isn’t on, or she’s asleep or something.

I’m told that in the USA it’s common for rental agreements, and sometimes housing association rules for homeowners, to restrict the number of unrelated adults living in the same house. I’m not married to my siblings, so in those situations I’d have to break the rules or pick which of my spice I wanted to live with.

I am not sure I entirely follow the OP or the following arguments, but when did that ever stop an internet commenter? So I will put some remarks, and hope they provide illumination.

Personally, while I am glad to see gays included in civil marriage, I am dubious of the process by which it was achieved, because it leads exactly to the difficulties we are discussing here. Stretching the law at need is a poor substitute for public debate and legislative process, yet there was no hope of rational public debate and legislative process in this matter. As with anti-lynching laws, a small minority of reactionaries were blocking the whole thing and would have done so for the indefinite future, so there was no recourse but to drag the matter to the courts.

As to the subject at hand, perhaps my views might be utilitarian. I have seen successful triples and open marriages and here, perhaps, civil law could be of some use. Rauch discusses some ways in which patriarchal polygyny fails. But modern egalitarian models also fail, drastically, heart-breakingly, painfully. A major problem is that group marriages seem to attract sexual and financial predators. One popular author who told excellent stories about group marriage turned out to be a creeper. Another turned out to be an outright abuser.

There may be spectacular success stories that I don’t know about; failure is drama, and material for stories, while success is essentially undramatic. Still, it is hard enough to resolve the disputes between two married people; it seems to me it would be exponentially harder, the more people involved.

I don’t think this is a problem that admits of a general solution based on universal moral or legal principles. Instead, it seems to be one of those problems that proliferate into endless special cases, and so far I do not see a way to simply those.

It’s really very simple. Heterosexuality is a gender attraction identity. Homosexuality is a gender attraction identity. There is also bisexuality which is some manner in between. Everyone on the planet is essentially one of these. Therefore, as Justice Kennedy so eloquently explained, all are entitled to marry the gender that matches their orientation, within common sense limits of not marring someone too young or an immediate family member because of the widely agreed upon harm that that causes.

Marriage is a lifestyle. Monogamy is a lifestyle. Being single is a lifestyle. Polygamy is a lifestyle. Lifestyles can be good, bad or indifferent, and it can be a matter of proper debate. We can decide which lifestyles to legally sanction and we have done so. It is highly unlikely we will go further than marriage (gay or straight), and in any case it does not logically follow from gay marriage – it’s apples and oranges.

Any one is free to make the case for polygamous marriage, but I doubt it will ever happen. One can certainly love more than one person, (I do), but at some point you have to make a choice, if you possess maturity and presence of mind. In my opinion, the problems with legal polygamy are huge.

Now I know a lot of liberals will call polygamy an identity, and a lot of conservatives call homosexuality a lifestyle. They are both wrong.

deBoer, whatever the faults of his positive arguments for support of polygamous marriage, was essentially right about how liberals would argue about it.

For the rest, addictions are hard to shake and undignified to watch. The spectacle of people saying “SSM is here — that’s great, but what will I do without the fix of analyzing yet another conservative’s opinion on what Real True Marriage is?” and then turning and shooting up polygamy arguments right away is a little bit sad.

@Will Wilkinson

I think it’s pretty widely accepted that the move from polygamy to monogamy is part of the move toward equal status for women and egalitarian marriages. The argument that polyamorous people like Moz should be able to visit their loved ones in the hospital and make custody arrangements that suit them (I actually don’t know what the legal status is of step-parents I know of who are doing half or more of child-rearing for kids their spouse has joint custody of) is very different from the argument that people who feel traditional polygamous marriage suits them should be able to do what they like, or that it should be allowed for one spouse in a two-person marriage to take their lover into the household. Should all the things men used to be able to do, like take control of their wife’s property, be turned back into a valid form of marriage? I feel like people should be able to live in communes if they like, and raise their kids communally if they like, but I’m not convinced it would be a good idea if they all had joint custody of each kid and were treated as a family for tax purposes and so on.

Re. the Black Knight, I can’t believe no one’s mentioned that before.

“Getting the state out of marriage” would require abandoning the de jure fatherhood’s and children’s granted by marriage. I don’t think that’s going to fly. Modern technology and law has provided some de facto rights in this area, but that is not yet developed law, and I have doubts: it seems to me that those rights defined in this way would require the development of a body of common law which made those rights dependent on a long-term relationship between biological parents, which sounds remarkably like civil marriage.

Note that a chunk of the technical issues aren’t present in other countries where the government isn’t subsidising married couples. In Australia, for example, ticking “have spouse” and supplying a tax number doesn’t change my tax return.

The only place it might have some effect for us is where the government is propping up private health insurers by giving people back 1/3 of the premiums as well as taxing people who don’t have it, and we could have some combination of “family” memberships if we chose to support that wrong. Then we’d have to decide who claimed the premiums as deductions and who was covered. We can’t, BTW, buy family health insurance as a family, we need to have at least two separate policies (and split the kids between them). There’s no legal reason for that, it’s purely a social/ commercial decision by the insurers.

Right now blended families make marriage law so complex that I suspect it wouldn’t be much harder to add polygamy. I have seen one “monogamous” relationship breakdown that involved children and property split between five adults. She broke up with her de facto while they were living in a house owned by him, his ex-wife and her ex-husband, and there were kids by I think three combinations of those adults. AFAIK all the adults had contributed financially to the property, but they managed to sit down all in the same room and come up with a settlement that none of them was willing to challenge in court. Which is what counts. At least in that case society and most judges have accepted no-fault divorce and remarriage, and some are even starting to accept that men can be parents.

Incidentally, the USA recently saw a black man accepted as a parent in South Carolina after the birth mother tried to adopt the baby out. So there’s also an argument that we should focus on more important things that affect more people first. OTOH, ending racism and sexism in the USA is a very long-term project, and I suspect that the people who run the country will be more likely to accept “rich white people polygamy” than “stop cops shooting black men”, just going by the number of people who don’t regard the latter as a vote-changing issue. Ahem.

I thought it was a pun on “shooting up” (like an addict) and “shooting up” as in shooting up the place (with a gun), which I suppose could be the same idea as shooting down. It doesn’t make a lot of sense to me regardless, because I don’t think people’s attitudes toward polygamy match up very well with liberal/conservative. When people in recent years inserted the topic of polygamy into discussions I was involved in about SSM, they could be conservatives going on about the slippery slope, proponents of polygamy wanting to catch onto the coattails of the SSM movement, or proponents of “getting the state out of marriage entirely.”

Anyhow, poor Rich, we can never live up to his standards, I don’t know why he puts up with us.

A paragraph that said additions are hard to watch, then talked about people “shooting up”? You really think it has nothing to do with that juxtaposition?

Lee A. Arnold @177

confused what is “natural” in your dictionary with what is “born” in mine … please come up with evidence that people are born to be either monogamous or polygamous.

I don’t understand your distinction between “natural” and “born”. Can you explain that, perhaps using an example like homosexuality. How is homosexuality something people are born to be in a way that monogamy or polygamy aren’t? That’s why I look at where marriage came from, and in the USA that’s very much a religious tradition that doesn’t involve pure monogamy (traditional or modern forms). In the USA polygamy has been both legal and illegal at different times, and the definition of who can marry has changed so often I’m surprised people can keep up. The ages, genders, races and numbers have all changed.

To me, anything that requires significant social pressure to partially overcome is something that’s natural, that people are born to do. Whether that’s violence, speech or heterosexuality. But I welcome anything you can do to clarify that apparently crucial distinction.

Lee A. Arnold @177: calls to “please come up with evidence” from someone who hasn’t produced any themselves are a bit rich. I’m using my lived experience, so claims of “natural” and “born” … yeah, nah. You want to start introducing evidence for claims, lead by example.

It’s also funny when you transition from “there are 25 countries that…” to “we’re only talking about one court decision in the USA”.

If you just want civil unions or reforms to property and family law, then there’s no reason for you to care what other people think Marriageâ„¢ really is. But if you’re asking for the government and community to actually recognize your relationship an official marriage, then, well, aren’t other people’s opinions kind of the whole point? SSM activists didn’t merely want gay relationships to be legalized, they wanted them to be normalized. And that means engaging with what other people think.

It was a drug joke, as I (wrongly) thought would be obvious from “fix” and “addiction” etc. It was intended to mean that as soon as we finally reached a political condition in which no one had to care about what marriage “really was” for a while, some people just couldn’t give up the sweet, sweet thrill of the next new iteration of the same old thing.

Lee A. Arnold @187

Homosexuality cannot be overcome, even partially, by social pressure. … So gays had to hide … But marriage is an institution, a choice of the society

I agree completely with you on that. But I observe that polyamory is equally resistant to social pressure and therefore should have the same legal status as homosexuality. You seem to conclude that because it can be hidden, it doesn’t need legal protection. But only for polyamory, hidden homosexuals are apparently different in some way.

I am very tempted to argue that anyone who has ever loved more than one person is polyamorous rather than monogamous, because monogamy is loving one person. But that would be tedious wordplay. The underlying point, though, is that many people currently practice polyamory in the broadest sense, they just call it “being unfaithful”, “an open relationship” or “we’re still friends (who have sex sometimes)”. You see those people as an argument for denying polyamory and refusing polygamy, I see them as an argument for making their choices open and explicit.

1. SSM does not entail the acceptance of polygamy, and 2. the individual right to polygamy would not outweigh any moral gain (which is negligible, because there is already a right to polyamory and open marriage)

I wasn’t arguing that SSM was necessarily polygamous. We agree on point 1. I haven’t mentioned moral rights at all. Can you link to the legislation or case law that defends the “right to polyamory” and “right to open marriage” that you claim exists in US law? To me that would be an excellent starting point to extend the right to polyamory to the right to polygamy. But the mere non-existence of bans or lack of legal penalties is not the same as an affirmative right. Hopefully we can agree on that much?

and it certainly does not outweigh the burden of additional legal complexity

I’ve already spoken to the “additional complexity”, which is an argument against divorce, remarriage, joint custody and so on as much as it’s an argument against polygamy. Probably more so, at least initially, since there are currently more openly divorced people than polygamous ones.

In many ways we’re in the “no gays in Russia” stage of the poly debate, because as I have repeatedly mentioned there are very real legal and social consequences to people being out as poly. Until I can stand up in court and say I’m poly without that negatively affecting my chances of getting custody of my child, any wittering from the sidelines about “it’s not illegal” is pure denial.

Moz of Yaramulla
You seem to be confusing social issues with legal ones.

Rosey,
all children have biologically exactly one father and one mother. Care giver/guardian and parent are different categories.

P.S. Moz in Oz
I’m not particularly interested in the sexual proclivity argument, which I regard as somewhat irrelevant. Marriage as a legally recognised institution is mainly there for reasons of property rules and default primary responsibility for people (which is why it was less common when society was less prosperous – there was less property to worry about). There is an old joke that the penalty for bigamy is two mothers-in-law, which contains a serious point – marriage joins two families. That causes enough problems, multiply the numbers and things get worse. None of this may apply to you of course, but we don’t just make rules to suit you. We have to see whether the rules scale or not.

Thrasymachus
What exactly is the right you think we should extend to polygamists? I contend it cannot be the same thing as what we give to monogamists. As I see it, it is a different thing – and we can solve the problem either by removing (or changing) the rights we have extended to monogamists or by creating a completely new and different sort of right. So what exactly would you want to propose here?

“These are not necessarily the rules that a modern liberal democracy would adopt, but there is no reason to suppose that it would be impossible to devise more acceptable alternatives. ”
Until you actually do make such a proposal, are you sure? I think that polygamy could be devised without great problem in those previous societies because all property was held by men, and wives were just seen as another property. These were very hierarchical structures. Structures with equality are much harder to regulate.

P.P.S.
I seem to be the only one emphasizing this, but I think it is really important. Marriage as is, is not simply accessing a right. It includes the “forsaking all others” bit – i.e. it involves accepting a unique and EXCLUSIVE responsibility. Words really get in the way sometimes, we think we know what marriage is – but maybe we don’t.

Maybe I should try a different hypothetical – does Bastian Schweinsteiger have a right to form a contract with Bayern München to be paid to play football for them? Sure does. Does Bastian Schweinsteiger have a right to form a contract with both Bayern München and Manchester United to play football for them? Well no – because those rights are exclusive (at least if there some competition where both clubs are involved – and even if not – there are practical issues). So what do we mean by right here?

#206: The analogy does not work, because you are assuming what you are trying to prove. If Bayern Munich and Manchester United AGREE to share the services of a particular player, should FIFA or UEFA prevent them from doing so? Either club is free to insist upon exclusivity (if they can get it), and there may well be good practical reasons why a sharing arrangement is impossible. We do know, however, that in the real world polygamous marriages exist. The issue is whether such marriages should be recognized, tolerated or prohibited by law.

In other words, I think the word marriage is causing confusion here.

Moz of Yarramulla #192: “You seem to conclude that because it can be hidden, it doesn’t need legal protection. But only for polyamory…because monogamy is loving one person. But that would be tedious wordplay…You see those people as an argument for denying polyamory and refusing polygamy…”

“Denying polyamory?” No. Maybe I am not paying attention to the definition of “right”. I think that there should be no legal discrimination against people who feel polyamorous. I observe that there has been little-to-no such discrimination, no signs in shop windows. I haven’t checked in with friends and neighbors, but I will guess they think that polyamorous people have the “negative right” to live their lives.

But how would you argue that the “negative right” to polyamory practically justifies or entails the “positive right” of instituting polygamy? You would have to get a sufficient number of the rest of the people in the society to believe that one cannot be a fully polyamorous being, without full contractual status and legal recognition of polygamy. What is your argument to convince them, there? Remember, you’ve already ruled-out “tedious wordplay”.

For what it’s worth, I favor the legalization of polygamous marriage. Read what Moz says upthread. All the stories about life-long queer partners being banned from the hospital bedside in favor of relatives who were homophobes; all the women who, SSM not being an option, could be instantly and permanently separated from children they had raised life-long, because the other partner had given birth; all these tragedies that won over ordinary voters to the cause of SSM–all these exact same issues face people in non-legally-sanctioned polygamous/polyamorous relationships. Would divorce be snarled tangles of difficulty? Sure, sometimes. Are existing divorces often snarled tangles of difficulty? Manifestly, but we don’t think that’s a good argument to ban divorce or re-marriage. The best argument against polygamy is that societies/groups which currently practice it tend to be terrifyingly patriarchal and hostile to women’s rights. That’s…not a great argument. The society that practiced heterosexual marriage was terrifyingly patriarchal and hostile to women’s rights in very concrete ways until very recently. Think how recent laws against marital rape are, and how much they are still contested in discussion!

Assholes in Arizona of the Warren Jeffs type are scary, but might legal recognition of the rights of all the partners not empower women to say, “no, I won’t let you send my only son away forever”? Certainly we can’t say it would definitely have the opposite effect, i.e. that of empowering the cult leader/husband. What if the wives were married to one another also? Might they not have more sway rather than less when it came to possibly bringing another woman into the marriage, given that they would have to go down to the courthouse and sign legal papers? And in general should people not be free to do as they please? If the law were changed but accompanied by an extra level of scrutiny (is this girl underage, does this woman consent to marry this other), might it not reduce harms? I believe that prostitution should be legal in part because prostitutes as it stands are unwilling to go to the police when raped and beaten, because they’re much likelier to go to jail on the back of that report than get some John convicted of rape. People are convinced you can’t rape a prostitue for the same reason they used to be convinced a husband shouldn’t rape his wife. Feminism, not legal prohibition, is the solution. I think first cousins should be able to marry also; the ick factor is hight, but actual risks to children are tiny. We don’t prevent Jews born with a recessive gene for Tay-Sachs from marrying. I also favor decriminalization and harm reduction programs when it comes to drugs. I am honestly surprised to see this thread so opposed to allowing people to live as they wish, raise children together, etc.

I am very tempted to argue that anyone who has ever loved more than one person is polyamorous rather than monogamous, because monogamy is loving one person. But that would be tedious wordplay. The underlying point, though, is that many people currently practice polyamory in the broadest sense, they just call it “being unfaithful”, “an open relationship” or “we’re still friends (who have sex sometimes)”.

A key aspect of polyamory is that all the partners know about and consent to the entire relationship. So that wouldn’t include infidelity or serial monogamy. It might not even include most traditional polygyny–existing wives usually not having the right to refuse new wives.

This might give us a way to prevent “new” polygamy from becoming the same bad old thing as “old” polygyny. Our common objection to traditional polygyny is that the wives can be exploited by the husband as property. But perhaps the solution to this is not to ban polygyny, but to allow existing spouses to veto new spouses, continue permitting divorce, and impose restrictions on prenuptial agreements (which should deter billionaires from having vast harems–if every spouse has the power to walk out the door with a huge chunk of your fortune, it might not be wise to have too many spouses.) Even if the state gives up control of who can get married, it still has control of the terms under which everyone gets separated, which ultimately alters the balance of power in a relationship.

Thrasymachus @213
” You are aware, I assume, that there are MANY societies in which polygamy has existed. ”
See @203

I withdraw my objection to “polygamy”. You may all relax now.

Rich 188: “some people just couldn’t give up the sweet, sweet thrill of the next new iteration of the same old thing.”

DeBoer: “Soon, it will be time to turn the attention of social liberalism to the next horizon.”

Out of curiosity, is it really not possible to draw up a legal statement saying that if I ever end up unconscious in hospital, persons X, Y and Z should be allowed to visit me (and A and B shouldn’t)?

Recall, the start of this is a post by Freddie DeBoer. Now, Freddie is a systematic thinker; he doesn’t just intervene in policy debates at random. And Freddie’s system is this: Whoever is trying to solve a problem, they are the real problem. Everything he writes is an exercise in finding a way to that same conclusion. Always with ostentatious more-in-sorror-than-anger sighing, of course.

So here: How can it be that the advocates of same sex marriage are really the ones denying people the right to marriage? Why, because same-sex marriage is just like polygamy, and yet SSM advocates don’t support polygamy. Who’s the bigot now?

Belle,
read JanieM @142
in particular:
“During the years when SSM was being fought for in the U.S., people often gave “over a thousand” (counting state and federal) as the number of rights and responsibilities encoded in the law that gay couples were being denied because they couldn’t get married. As other people have written or implied in this thread (most vividly Bloix @82), every one of those provisions is currently framed on the assumption that the number of partners in the marriage is two. Every one of those provisions would have to be examined and perhaps revised to specify how things would work in a more-than-two partnership. This isn’t impossible, but it’s not a minor task either, and tackling it would surely require at least a rough consensus among the people lobbying for the right to more-than-two marriages.”

In using the word marriage (and thinking just a committed recognised relationship), we are skipping over a lot of what comes with extending a concept that has already been built based on certain assumptions. You don’t get to wave your hands and say everything built based on those assumptions still holds when you relax the assumptions (OK I know Chicago school economists do that, but we should hold ourselves to higher standards).

Belle
and to repeat myself, it seems to me that the likely outcome of trying to push the square peg of however defined polygamy in the round hole of existing marriage rights, is that the round hole gets filled in and the whole thing abandoned. And I’m not sure anybody wants that.

225: marrying several partners is hardly less of a hassle than a living will?

As to the argument for SSM because of the biological basis of homosexuality, this is and always was a pretty contentious argument among some portion of the LGBT community. I think we went along with it because it was effective, but it basically says that the straight community must/ought to accept LGBT people because we can’t help being gay. And by implication, if we could be straight that would be preferable.

I would much prefer to live in a world in which we accept people’s right to form and legitimize same-sex relationships because those relationships are okay on their own terms rather than because we’re poor misbegotten souls who can’t help ourselves.

And by further implication, whether or not polyamorous relations are “innate” or whatever is really beside the point. If people want to form these types of relationship and want the state to recognize them, then we should evaluate that proposition based on whether poly relationships ought to be integrated into the existing legal framework from a utilitarian or rights-based perspective (with the ambiguity between these two approaches surely being highly contested). But we ought not to say to someone “you’re preference for relations are valid because they’re immutable but that couple over there, well, they ought to just go along with existing norms because we’re pretty sure it’s a choice.”

bianca: The hospital thing is one, incredibly stupid, and two, entirely separate from the state.

It is not entirely separate from the state, and I’m not sure it’s so stupid either; it’s more a stand-in for all the things that spouses can do and mere partners and lovers can’t, necessarily. Hospitals automatically allow spouses in to visit, and to make decisions (to some extent) for people who are incapacitated. They do not automatically allow anyone else to do anything, as a gazillion stories from gay partners would make clear.

And even if you could in theory sign a form saying who can visit, hospitals historically have not always honored such wishes in practice, especially with gay partners and in the face of hostile blood relatives. And anyhow, if you’re unconscious after a car accident or something, you can’t make your wishes known in the first place.

But I do agree with you about the trollery and HWSNBN and etc.

Maybe there are other conditions they would accept. In any case, the marriage certificate wasn’t enough. This reminds me of the many situations when you have to prove your identity by providing a passport or other official document and also something like a utility bill which can easily be faked, but that requirement is supposed to prevent identity fraud. Never understood the logic.

Just allowing polygamy wouldn’t solve that.

I didn’t mean to imply that it would. I was just disagreeing with bianca steele’s dismissal of “that” (hospital issues) as unrelated to the state, and stupid.

But your point @238 is the same point I have made more than once: legalizing polygamy would mean addressing how all these things that are defined for spouses in pairs would now apply to groups.

TM @237
The passport doesn’t say where you live. If they need to chase you down, knowing where you live is a good start.

241: But the driver’s license does and still they routinely ask for “two pieces of identification”, even though the second piece is generally a joke in terms of how easy it is to fake. Seems to me like security theater.

240, 239: I’m not sure but I would have thought that there are state laws about these issues. It can’t be up to the arbitrary judgment of the hospital administration? That said, I’m not convinced, from a pragmatic perspective, that marriage law is the right way to address the legal issues arising from polyamorous relationships.

As oldster suggest upthread, if polyamorous people want a consistent legal structure to deal with hospitals etc, the obvious step would be to create a new thing called a group marriage, probably reusing some of the law around business partnerships, with each group marriage agreeing its internal legally-binding rules before the wedding . This seems more feasible than trying to rebuild traditional marriage.

Sure. Then maybe all the partners could have a little embedded chip encoding all the provisions they’ve agreed to that matter in their relationships with the world around them. (Banks, hospitals, airlines, hotels, schools, the social security administration……)

FYI:

The Future of Polyamorous Marriage: Lessons from the Marriage Equality Struggle

Hadar Aviram
University of California, Hastings College of the Law

Gwendolyn Leachman
University of Wisconsin Law School

August 23, 2014

Harvard Journal of Law and Gender, Forthcoming
UC Hastings Research Paper No. 118

Abstract:
Amidst the recent legal victories and growing public support for same- sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a poly- amorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and culture shape these struggles and their ability to produce social change.

We argue that legal mobilization for same-sex marriage has produced conflicting pressures for contemporary polyamorous activism. On one hand, same-sex marriage litigation has provided several doctrinal footholds for expanding marriage to polyamorous relationships. On the other hand, same- sex marriage litigation has simultaneously reinforced cultural stigmas against polyamorous relationships—stigmas that constrain the practical utility of those legal tools (especially as means for implementing broader social change beyond the letter of the law). By accounting for these conflict- ing legal and cultural pressures, this Article provides a comprehensive roadmap of the issues, strategies, and challenges likely to emerge along the path toward polyamorous marriages.

Number of Pages in PDF File: 68

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485853

I don’t have time to read the long paper at Bill Benzon’s link right now, but this from the last paragraph is apt:

At this juncture, it is up to poly people to decide what is at the core of
their politics. Is it the affirmation and recognition of poly lifestyles that marriage
provides (an identity politics movement)? The freedom to define one’s
family and lifestyle without state interference (a liberal rights issue)? The
redistribution of social wealth to bridge the economic gap between statesanctioned
couples and others, such as nonsexual co-parents, extended families,
care-giving relationships, and elderly companions (a social justice issue)?

“same- sex marriage litigation has simultaneously reinforced cultural stigmas against polyamorous relationships” (247, abstract)

In a sense, SSM is a confirmation of the nuclear family stereotype. I personally think that our cultural fixation on the nuclear family is unhealthy. I don’t know what could or should be done about it.

Okay, I have to ask. Why is HWSNBN not to be named?

Polygamy isn’t one man and three women getting collectively married. It’s one man marrying one woman, then another, then another. Three separate marriages, with one man in common. Switch ‘man’ and ‘woman’, mutatis mutandis.

the traditional nuclear family

Do not forget why it’s called “nuclear”… it’s only as old as the nuclear age. Before you go getting all misty eyed about ancient marriage, remember that “mum dad and the kids” is barely three generations old. Multi-generation homes are much more traditional, and families with more than two members in each adult generation common. Our neighbours are two grandparents, two of their kids plus the spouse of one, and three grandkids. For that matter we have my sister-out-law as a housemate.

Insofar as I want marriage, I want it for the legal baggage and possibly the public sanction rather than the ceremony and celebration. I’m more of a “can’t wait for this to be over” than “yay the big day” person. I want not to have the negative non-rights of legal discrimination and possibly-illegal mistreatment removed, much more than I want the positive right to marry.

My activism on this front is pretty much limited to quietly pushing on things that I have access to. We all went along and met our newly elected MP, for example, largely so I could say “this is my husband Bob, my husband Sam and my wife Chris (and our kids….)”. He’s a nice Muslim man and didn’t boggle particularly, and was quite affable and friendly (as such people must be).

I’ll happily argue using the frame people are happy with, because I don’t think it matters whether people are “naturally” monogamous any more than it matters whether the Great Sky Fairy created the universe at 6pm on Tuesday the 11th of March, 1147BCE. The question is what we do with what we have now.

JohnD @244
“Part of the reason SSM is now making progress is that the hetero majority recognised that SSM really couldn’t ‘break’ traditional marriage because by definition nothing in their heterosexual marriages changes just because homosexuals can also get married. I’m not sure this applies if you try to fit polyamorous relationships into the existing marriage system using the courts.”

Exactly. Another way to put my objections (or rather to put my point that granting the “right” to polygamous marriage is not easy without a complete restructuring of law and society) is to say that I very much fear going this direction would be one step forward and two back. Maybe the better tack would be to find ways to solve practical problems without interfering with existing rights.

Hmmm. People seem to be trying to invent egalitarian polygamy. Hmmm.

Crude? Ok, crude, but only out of commensurate politeness.
Polygamy itself is biological, governance of polygamy is governance of…I don’t see why we’re doing this.
Unless you’re working with the assumption that the consumerist p.o.v. is now ours for ever and ever, which seems woeful and severely myopic.
Certainly the main bulk of the comments are treating marriage as a biological *thing*, because of course sex and romance = biology.
But that, here, seems to be considered only as a matter of biological desire, or consumer appetite, to put it in what I consider to be a crude term.
The discussion, as much of it as I’ve read so far, seems centered squarely in that consumerist p.o.v.
Consumerist as in marriage is about the feelings of the want-to-be-married generating claims of rights, guaranteed or not, granted or not. With society enjoying the increased well-being that results from a happier citizenry.
That seems to me to be dangerous and ill-conceived, childish even.
Thus the assertion that the fuller biological substrate of the marriage contract and its consequences, not just the desire to be married, between whatever parties whenever, is also very important, and its examination and understanding from that angle are after being key parts of any discussion of who gets to marry whom.
Not just the argument toward societal well-being, which seems to rest mainly on preservation of a status quo, which is surely a more and more dubious goal now, but toward a future societal well-being, which I’ve always thought was why we had rules, at least I think that’s been the idea.
Without which fuller context – marriage to what end? – said discussion puffs along on its miniature track, going round and round amusingly, to not much of an end.

Consumatopia @261:

It seems like you need two words here. Suppose it’s a V or a W. We would want one word to refer to your relationship(s) with your immediate neighbor(s) in the graph. We also want another word to refer to your relationship to the entire graph.

Polyamourists commonly use metamour to refer to other partners of their paramours. (merkins usually use out the u in those words and I can’t remember which I’m supposed to like). With marriage I’d be tempted to use that, or coin a phrase akin to sister-in-law to refer to spouses, sister-in-wed perhaps. Although less emphasis on gender might be appropriate, spouse-in-law maybe.

As far as the Precedent of the Dangerous Wedge:
I’m firmly of the strongly-held opinion that just and right action is demanded of anyone who can recognize its possibility.
That recognition and the discursive means to it are what I take to be the reason for what this is.
This typing and all.

As a veteran of a polyamoric relationship, I’m amused by the lack of imagination and/or attention to detail in discussions about it. Two men, two women. Three kids, two from one woman, one from the other.

The financial advantages, baby care, transport, economies of scale, variegated opinions, chances to vote on some things, more skills brought to bear, many hand make light work.

We built an enormous octagonal house, cleared several acres of land, had a fishing boat. It was a good idea. I’d do it again, actually. In retrospect, the kids were happy: we home-schooled (it’s how we met, forming an alternative school). Think about it. We did, and we did it, and it worked.

“desires whose shape you evidently don’t like” is so egregiously coy that I’m abandoning this.
You’re nowhere near my position, just casting around for it, like a CIA field op, fresh out of Yale, in country for the first time.
You really have no idea where I’m coming from, but you want to so bad.
Sorry John, fail. See ya.

Sebastian H. @277
Just imagine, we can have something that in comparison seems even worse.

You really have no idea where I’m coming from, but you want to so bad.

Not I. I lost my taste for deliberate (perverse?) opacity a long long time ago. Just because no one understands you does not mean you’re smarter than everyone else.

@276, I’m not sure that touting the benefits of marriage for managing labor among a small group of people is really the frame you want here. The government may not regulate love, but it should definitely regulate labor.

@277, 280, the least convincing argument on the pro-poly side is “look how terrible binary marriage is!” To the extent that an institution is already abusive, legalizing or normalizing a wider set of practices within that organization might make it even more so, if we are not careful. Note that SSM proponents tended to make the opposite claim, that marriage was a wonderful institution so obstructing gays from participating in it was unjust.

@283, even if we do eventually legally recognize polygamy, we might not want to recognize all polygamous unions as marriages. For example, if there are “open” unions in which one of the members can go marry people without the permission of the rest of the, um, meta-spouses, there are a lot of reasons why we wouldn’t want those to receive the sanction of government recognition. However, even if the government doesn’t call them marriages, denying them some domestic partnership benefits (e.g. medical visitation, child custody) is too severe as a reaction. Thus we would end up with two kinds of polygamy, extending full recognition to one class, partial recognition and accommodation to the other.

This division into classes may seem like pointless busybodying on the part of the government, but bear in mind that there is one big argument SSM could make the polygamists cannot make–that SSM would have no effect on the marriages of heterosexual couples. The availability of polygamy would almost certainly change the balance of power in existing marriages (contra Moz@107, it’s not merely the formally accepting polygamy the wrong way will exacerbate anyone’s “mental problems”, it might hurt their material welfare.) I can’t say exactly how that balance of power would change (and, no, I’m not referring to Rauch’s reductive concerns about “lower-status men”, it’s the balance of power within relationships that concerns me, not that of people left outside relationships), but if you add the option to add additional people to existing marriages, it’s unlikely the both partners in any given binary relationship desire that equally.

Consumatopia@284

To the extent that an institution is already abusive, legalizing or normalizing a wider set of practices within that organization might make it even more so

That’s a very valid point. And one of the few objections to polygamy that I think is reasonable. The usual response of “other people doing something badly is no reason to stop me from trying. Either stop them or let me” doesn’t really work, either. My response is that if we first require perfection of the gatekeepers, anything after that is moot. Marriage, like all human activities, is imperfect, so that imperfection is no reason to deny marriage.

I think we’d be better addressing bad marriages in other ways, because those that are special in that an abusive partner will want polygamy are unlikely to be so different from other abusive marriages that the usual interventions will fail. In non-US countries there’s a variety of approaches that work in this area, but the core problem is poverty and/or fear of poverty. Women who leave an abusive relationship face a collapse in their standard of living and can expect to live on whatever the government provides. So the biggest help we can give is making that assistance sufficiently “generous” that people can live on it.