Illustration by Alex Cook
Gay marriage is soon going to be legal in the US.
After this week’s oral arguments before the Supreme Court on California’s Proposition 8 and the federal Defense of Marriage Act, it’s unlikely that the robed elders who run American society will declare that gays have the same rights to marry that straights do, but they will probably strike down the blatantly bigoted DOMA. But no matter what the court says, the US public’s broad support of equal marriage rights means that sooner or later – probably sooner – two men or two women will be able to legally wed each other. It’s taken too long, sure, but that day isn’t too far off. But if two men or two women can get married, what's stopping two men and two women from getting hitched?
The idea that after gay marriage is legalised, polygamy will be next – and then bestiality and legal unions between lawn mowers and volumes of the Encyclopedia Britannica and so on – is one of the main arguments that social conservatives trot out to “defend traditional marriage”. (It’s right up there with “Think of the children!” and “the Bible says…”) Stanley Kurtz made that argument nearly ten years ago in the Weekly Standard, and it got brought up again in several briefs filed this week with the Supreme Court by anti-gay marriage advocates. It goes like this: if the purpose of marriage isn’t to produce children in traditional one-mom, one-dad homes, if it’s just a legal arrangement between folks who really like each other, what basis can there be to deny triads and quads who want legal recognition of multiple-partner marriages?
Actually, yeah – why are polyamorous marriages between consenting adults illegal?
“Kurtz was right for the most part,” Anita Wagner Illig, a polyamorous-relationships advocate who runs the Practical Polyamory website, told me in an email. “Legalising same-sex marriage creates a legal precedent where there can be no valid legal premise for denying marriage to more than two people who wish to marry each other… We just disagree as to whether it’s a bad thing.”
Laws against multiple marriages in the US were originally enacted in response to 19th-century Mormon polygamy, and since then, having a bunch of wives has been associated with extreme Mormons like Tom Green and David Kingston who force women to marry them, have sex with young girls and even engage in incest – horrific, despicable acts by any moral standard. That’s a tough stigma for poly people to overcome, though polyamory has become more and more accepted at large over the past decade.
If TV is a barometer for society’s obsessions, we’re thinking a lot more about group marriage – HBO’s Big Love depicted fundamentalist Mormon polygamy in nuanced, dramatic fashion and TLC’s Sister Wives portrayed a Mormon polygamous family as being not all that different from “normal” homes. A long story in Newsweek in 2009 focused on nonreligious poly families and was very sympathetic. More recently, ABC’s Wife Swap featured a poly family and Scientific American called “consensual nonmonogamy” (which includes swingers and people in open relationships, not just polyamorists) the “new sexual revolution”. It’s important to note that there are only an estimated 500,000 poly relationships in the US, which is a tiny minority when compared to the 9 million or so gay people in the country, but if you want, you can see this mainstreaming of polyamory as running parallel to the wider acceptance of homosexuality that preceded the current civil rights battle.
Many gay marriage advocates dislike that comparison – they don’t want the public to draw comparisons between gay relationships and “weird”, potentially abusive multiwife setups. Back in 2006, Andrew Sullivan wrote, “Legalising [polygamy] is a bad idea for a society in general for all the usual reasons (abuse of women, the dangers of leaving a pool of unmarried straight men in the population at large, etc.),” an odd mirroring of all those conservatives who’ve talked about how “bad for society” gay marriage would be.
“For as long as they could get away with it, [marriage-equality advocates] disingenuously denied that we polyamorists even exist and swore that it was and would forever be a nonissue,” Anita said. “This was all politics as usual, of course, but it was pretty disappointing for us to be thrown under the bus that way, especially since the polyamory community has always supported marriage equality.”
Polyamory has left-wing roots – it’s “intertwined with the rise of feminism”, as Slate wrote last year, and the couple who coined the term, Morning Glory and Oberon Zell-Ravenheart, look like they could be on the cover of Stereotypical Hippie magazine:
But in America, the fight to legalise group marriage has actually been led largely by the right wing, at least so far. The Mormon family from Sister Wives is trying to overturn Utah’s bigamy laws, and the most vocal polygamy advocate in the country is Mark Henkel, a non-Mormon Christian who has been speaking out in favour of consensual polygamy since 1994.
With two decades of trying to persuade a sceptical public under his belt, Mark has plenty of propolygamy arguments, including that the state’s banning of polygamy is “antiwoman”.
“If you have ten men and ten women, and nine of those men are jerks,” Mark told me, “what antipolygamy does is it removes these women’s choice of the good man and forces them to settle for the nine jerks, and actually, the message of that to the jerks is, ‘Hey, guess what, the law forces the women to settle for you.’ But if you remove marriage control and allow women a choice to have laissez-faire free-market marriage economics… then women will choose the better man, and the message to jerks is, ‘Hey, we better grow up and become better men.’”
Mark described himself as “very, very happily married” and his family as “very, very, very happily propoly”. Unlike Morning Glory and Oberon or other left-wing polys, he cites the Bible as inspiration for a poly lifestyle. “Even the Adam and Eve story we hear so much about was written by a man named Moses, and the Bible says Moses has two wives,” Mark said. “So who are you going to believe, people telling you a doctrine based on the Adam and Eve story, or the very man who wrote it who was polygamous? He wouldn’t write a doctrine against himself.”
The larger argument Mark makes isn’t religious, however: “Really, the solution is to just stop having the government define marriage for any consenting adult,” he said. That’s in line with a broad swathe of libertarian thinking on marriage rights. Why is the government involved in marriage in the first place? Isn’t that a matter between the people getting married (and, if you like, their God or gods)? As for the tax benefits that being married brings, well, libertarians would like to get rid of those, since they also want to eliminate taxes generally. But conceivably, getting the government out of marriage could be a cause that left-wing polys, along with live-and-let-live types in general, embrace. Mark calls poly rights “the next civil rights battle”, and he could be right.
The problem is, it’s not clear at all that the poly community wants that battle. “We’re a pretty independent bunch,” Anita said. “Many poly people reject traditional marriage for themselves and consider polyamory to be an entirely new paradigm that doesn’t fit in the existing social and legal fabric. We make our commitments in our own way.”
Alan G., who runs the Polyamory in the News blog, agrees and wrote in an email to me that, “The legalities [of group marriage] would be far more complex and innovative than gay marriage has been. Gay marriage maps exactly onto the vast, existing legal regime that has been developed for hetero-couple marriage.”
In a short essay that he has posted on his blog several times, Alan expanded on this: “How would the law mandate, for instance, property rights and responsibilities in partial poly divorces? What about the rights and responsibilities of marriage that merge into preexisting marriages? Setting default laws for multiple inheritance in the absence of a will, allocating Social Security benefits… it goes on.”
The poly community is much smaller than the gay community (at least for now) and less organised and desirous of changes to laws – maybe that’s because they’ve got enough on their plates just navigating the complexities of their personal relationships. Without a sudden upswing in activism on their part, it’s hard to see how group marriage will be legalised, though Mark Henkel says that it will be coming within the decade.
But poly relationships are definitely becoming less “weird”, as all the “Get Ready for Group Marriage” articles in the media over the past several years have shown. And even if polyamorists don’t seek legal recognition for their domestic arrangements, they may have to fight it out in court if the government decides that raising kids in a poly household constitutes child abuse, or that polyamory is equivalent to group marriage and, therefore, illegal. That legal battle is already joined in Canada, where the courts decided in 2011 that though formal marriages between more than two people are illegal, people have the right to have nonmonogamous relationships and live with multiple partners without the government interfering as long as they don’t call it “marriage”. In an open letter, John Ince, the lawyer who argued the case for the Canadian Polyamory Advocacy Association, called the ruling “a major step forward for our community to gain social acceptance and become more integrated into mainstream Canadian culture".
He went on: “Polyamorous cohabitation is so new that society has not yet worked out how to apply the rights that monogamous couples enjoy to a multiparty cohabitation. These rights are going to have to be worked out on a case-by-case basis over time. Gay couples won their battles that way. Over a period of a couple of decades they litigated many cases dealing with child custody, pensions, tax issues, etc. It was only after those other rights and obligations were established – allowing gay relationships to become mainstream – did gay couples ultimately gain the privilege to participate in institutionalised monogamous marriage.”
It’s unlikely that a legal struggle for poly rights like that is on the horizon, at least in the US – the framework of activists and organisations isn’t there yet. But even Alan, who doesn’t see polyamorists getting their day in court any time soon, said that change may be coming, if slowly.
“Good law follows reality rather than precedes it,” he wrote. “Fifty years from now when poly households are commonplace and their issues are well understood, I’m sure an appropriate body of law will have grown up to handle the issues that arise. At least that’s how it works when civil society is allowed to go about its business, free of religious or ideological compulsion.”
Follow Harry on Twitter: @HCheadle
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Topics: supreme court, gay marriage, marriage eqaulity, Mark Henkel, polygamy, polyamory, group marriage, US politics, civil rights, legal battles, Polyamory in the News, Sister Wives, Anita Wagner Illig