# Court strikes down polygamy cohab law **URL:** \ **Category:** Great Debates\ **Created:** [December 16, 2013, 9:47pm UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502 "2013-12-16T21:47:50Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [December 17, 2013, 12:28am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/21 "2013-12-17T00:28:13Z")
> [@Left\_Hand\_of\_Dorkness](#): > > The argument for gay marriage that excludes polygamous marriage is the crayon argument. > > Give me a crayon and a copy of the marriage statutes, and by going through, crossing out the words > and replacing them with > > we’re done. Same-sex marriage is instituted. There’s no reason why a mutual relationship between two people of the same sex needs to be treated differently from a mutual relationship between two people of different sexes. > > Polygamy comes in many different forms, and a contractual relationship among three people necessarily carries complications different from those inherent to a relationship between two people (when Lisa leaves the relationship between her, Bob, and Suzanne, if the kids are biologically Bob’s and Lisa’s, does Suzanne get visitation rights, and is Suzanne liable for child support? If Bob dies, and Lisa and Suzanne are heterosexual, is the relationship dissolved? If Bob is in a coma, and Lisa wants the plug pulled and Suzanne doesn’t, who decides? Are Bob and Lisa both eligible for coverage under Suzanne’s generous health plan, given its spousal coverage? What happens if Lisa also wants to marry Eric, but Bob and Suzanne don’t? Is it possible for Lisa to be married to Eric, Suzanne, and Bob, and for Bob to be married to Lisa and Suzanne but not Eric? etc.) > > That’s not to say that polygamy should stay against the law forever. But it’s tremendously complicated compared to SSM, and it may be that there’s no one-size-fits-all solution for polygamist folk. There may need to be some sort of cafeteria plan. Nice try, but the “it would be too complicated” argument doesn’t fly with me. If it’s a FUNDAMENTAL RIGHT, as asserted by most people who support gay marriage, then the fact that it would be harder to fix the law to handle poly marriage than it would for gay marriage is lame. Somehow people already in poly marriages or arrangements manage to handle this, and socieities where it is legal manage to handle it in their laws. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 17, 2013, 12:28am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/22 "2013-12-17T00:28:44Z")
> [@jsgoddess](#): > > The problem with that is the marriage law is all about not having a cafeteria plan but a set of defaults. Right–so what are the defaults? I think **Falchion** suggests that if Bob is married to Lisa, and also wants to marry Frank, Bob doesn’t need to get Lisa’s permission or indeed even notify her, and presumably Frank becomes entitled to a share of the property jointly held by Bob and Lisa in the event of a divorce, even if Lisa doesn’t know about it. I actually don’t think there’s any significant group out there, not even philanderers, who want a setup like the one **Falchion** seems to imply. But there are some folk who want group marriage, and there are others who want a branch marriage, in which a bunch of folks are all married to one person, but none of the branches are married to one another. I see no reason for me to judge either of these arrangements, but I don’t think a single default will cover both. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [December 17, 2013, 12:29am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/23 "2013-12-17T00:29:16Z")
> [@Left\_Hand\_of\_Dorkness](#): > > To clarify: polygamous marriage should be legal. But it’s going to take awhile to figure out how to make it work, and it won’t take awhile to figure out how to make SSM work Just saw this. Thanks for clarifying. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 17, 2013, 12:35am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/24 "2013-12-17T00:35:06Z")
> [@jsgoddess](#): > > The problem with that is the marriage law is all about not having a cafeteria plan but a set of defaults. Good luck taking your cafeteria menu to a hospital and convincing a doctor that you’re legally entitled to make decisions on behalf of a critical patient. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [December 17, 2013, 12:38am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/25 "2013-12-17T00:38:16Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Right–so what are the defaults? That is indeed the problem. I am simply saying that a cafeteria plan is anathema to marriage law. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 17, 2013, 1:19am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/26 "2013-12-17T01:19:04Z")
> [@jsgoddess](#): > > That is indeed the problem. I am simply saying that a cafeteria plan is anathema to marriage law. Pre-nup, anyone? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [December 17, 2013, 1:27am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/27 "2013-12-17T01:27:38Z")
> [@John\_Mace](#): > > Pre-nup, anyone? Ad what happens when different people in the marriage have different, conflicting pre-nups? Is everyone who joins required to have the _same_ pre-nup? More questions… ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 17, 2013, 1:29am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/28 "2013-12-17T01:29:55Z")
> [@John\_Mace](#): > > Pre-nup, anyone? Would you require them for everyone, or just for poly folks? Would you require them for all poly folks? Because if you don’t, then the issues don’t go away. We have literally centuries of case law in the US figuring out how to handle all sorts of legal issues involving two people who are married. Figuring out how to handle similar issues when there are three or four or eighteen people involved is going to take some time. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [December 17, 2013, 1:35am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/29 "2013-12-17T01:35:33Z")
> [@John\_Mace](#): > > Pre-nup, anyone? As far as I am aware, a pre-nup only works under limited circumstances and only affects property. It does not affect things like kinship rules. In American society, we know what it means to be married to another person. We have build an entire set of defaults based on that understanding. Marriage is a shorthand for all of those defaults because societally we like having default rules. Property division at least is something (under most circumstances) that isn’t an emergency, and it can be handled generally by trained legal people, and can be figured out between the people involved beforehand. Der Trihs’s point about conflicting pre-nups is a good one, though that seems like it could be handled similarly to any conflicting contract. But other rules involve people outside of the relationship. I can’t make my husband not my next of kin outside of divorcing him. I can’t make my husband not relevant for my taxes outside of divorcing him. I can’t just designate someone else as falling under the rule against spousal testimony, etc. I’m just grabbing things at random, here, but the important thing is that a pre-nup doesn’t do it. It’s akin to having a different set of rules because you have more than one child. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 17, 2013, 3:03am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/30 "2013-12-17T03:03:00Z")
> [@jsgoddess](#): > > I can’t make my husband not my next of kin outside of divorcing him. Can’t you? I can picture a husband being declared legally incompetent (as by a worsening case of Alzheimer’s) and thus no longer able to make next-of-kin decisions for his wife, to whom he nevertheless remains legally married. A nitpick, I cheerfully admit. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 17, 2013, 3:12am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/31 "2013-12-17T03:12:29Z")
Yup. It is pretty intrinsic to the American concept of marriage that it’s exclusive; as long as I’m married to you, I can never marry anyone else, and therefore your, e.g., inheritance rights as my spouse cannot be outranked by anyone else’s prior claim to inheritance, and will not have to be shared with anyone else. This is no longer true if polygamy is allowed. Even if I don’t take a second spouse, I’m free do do so at any time. Our marriage is no longer exclusive; your position has altered. In other words, permitting polygamy is not making the an existing notion of marriage available to people who currently can’t access it; it’s significantly changing the notion of marriage in a way that affects everyone. Might be a good idea, might be a bad. But it is not analagous to permitting same-sex marriage. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 17, 2013, 5:11am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/32 "2013-12-17T05:11:10Z")
> [@DT](#): > > Which is what I said? No, it wasn’t. > [@UDS](#): > > Yup. It is pretty intrinsic to the American concept of marriage that it’s exclusive; as long as I’m married to you, I can never marry anyone else, and therefore your, e.g., inheritance rights as my spouse cannot be outranked by anyone else’s prior claim to inheritance, and will not have to be shared with anyone else. > > This is no longer true if polygamy is allowed. Even if I don’t take a second spouse, I’m free do do so at any time. Our marriage is no longer exclusive; your position has altered. > > In other words, permitting polygamy is not making the an existing notion of marriage available to people who currently can’t access it; it’s significantly changing the notion of marriage in a way that affects everyone. > > Might be a good idea, might be a bad. But it is not analagous to permitting same-sex marriage. It’s intrinsic to the American concept of marriage that it’s between a man and a woman. At least until it wasn’t. An appeal to tradition is NOT something you want to make if you’re defending SSM. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 17, 2013, 5:26am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/33 "2013-12-17T05:26:15Z")
> [@John\_Mace](#): > > It’s intrinsic to the American concept of marriage that it’s between a man and a woman. At least until it wasn’t. An appeal to tradition is NOT something you want to make if you’re defending SSM. There’s a difference. If you legislate to permit same-sex marriage, that doesn’t immediately, directly affect my (opposite-sex) marriage. But if you legislate to permit polygamy, that _does_ directly affect my marriage, because my marriage is no longer exclusive. What I can and can’t do, and what my spouse can and can’t do, has changed. This isn’t an “appeal to tradition”. As I said in my first post, the proposed change may be good, or it may be bad; the fact that it’s “untraditional” doesn’te tell us that it’s either. But it is a _change_; it’s a change to _all existing and future marriages_. And in that respect it’s quite different to legislating for SSM. I’m not saying that it’s a change we shouldn’t make; perhaps its a change that we should make. I’m just saying that its sufficiently different from legislating for SSM that the fact that we decide to legislate for SSM is not much of an argument for saying that we should legislate for polygamy too. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 17, 2013, 5:58am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/34 "2013-12-17T05:58:30Z")
> [@UDS](#): > > There’s a difference. If you legislate to permit same-sex marriage, that doesn’t immediately, directly affect my (opposite-sex) marriage. But if you legislate to permit polygamy, that _does_ directly affect my marriage, because my marriage is no longer exclusive. What I can and can’t do, and what my spouse can and can’t do, has changed. > > This isn’t an “appeal to tradition”. As I said in my first post, the proposed change may be good, or it may be bad; the fact that it’s “untraditional” doesn’te tell us that it’s either. But it is a _change_; it’s a change to _all existing and future marriages_. And in that respect it’s quite different to legislating for SSM. > > I’m not saying that it’s a change we shouldn’t make; perhaps its a change that we should make. I’m just saying that its sufficiently different from legislating for SSM that the fact that we decide to legislate for SSM is not much of an argument for saying that we should legislate for polygamy too. Nonsense. You and your wife are completely unaffected by legalization of polygamy. No one is going to force you into a polygamous marriage just like no one is going to force you to divorce your wife so you can marry your male lover. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 17, 2013, 6:06am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/35 "2013-12-17T06:06:03Z")
> [@John\_Mace](#): > > Nonsense. You and your wife are completely unaffected by legalization of polygamy. No one is going to force you into a polygamous marriage just like no one is going to force you to divorce your wife so you can marry your male lover. Well, before you can make _that_ statement, we need to define some parameters of a polygamous marriage. Who gets a vote on whether or not another spouse can be added? All the current spouses? The spouse(s) who will be conjugal with the new spouse? Is the refusal of any one spouse a sufficient veto? ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [December 17, 2013, 6:06am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/36 "2013-12-17T06:06:04Z")
> [@VinylTurnip](#): > > From a legal standpoint, it is considerably simpler when the husband has all the rights and the wives have none, isn’t it? Or when there is a number one wife, or “the legitimate” and “the others”. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [December 17, 2013, 6:28am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/37 "2013-12-17T06:28:24Z")
> [@John\_Mace](#): > > Nonsense. You and your wife are completely unaffected by legalization of polygamy. No one is going to force you into a polygamous marriage just like no one is going to force you to divorce your wife so you can marry your male lover. No. I am married to one man. My husband is married to one woman. We both have a set of rights that come with that marriage. If polygamy is permitted, I can marry another man without divorcing my current husband. Done. My current husband’s set of rights is now changed. Or, if his rights are not changed, _the set of rights coming with the second marriage is not the same as the set of rights coming with the first marriage._ If polygamists get all of the spousal rights and privileges with each of their spouses, then that is changing the set of rights and privileges guaranteed to each spouse (they can be diluted). If polygamists do not get all of the spousal rights and privileges with each of their spouses, then they are getting a lesser form of marriage. If polygamists are forced to set up separate marriage agreements with each spouse, that is a lesser form of marriage, without the default set of rights and privileges that come with marriage. And if polygamists have to set up those separate marriage agreements, that creates essentially grades of marriage. Talk about your separate but unequal! One of the reasons SSM is so important is it grants access to the suite of rights and privileges that comes with marriage. Obviously, for most people it also has an emotional component, but the bigger issue is the suite of rights and privileges. If you take away the default rules, you impact everyone married. If you don’t take away the default rules, you still impact everyone married because their guarantees are now different. If it helps, think of California’s community property and a thought experiment: I am married and I make ten thousand dollars a year at my job. 50% of that, because of my marriage, belongs to my husband. Now I take a second husband. What is his share of that 10,000? If adding him changes the amount my first husband gets, then the rules for my first husband have changed. If adding him does NOT change the amount my first husband gets, then my second husband does not have the same rights as my first husband. If I have to get a lawyer to determine who gets what, polygamy doesn’t have the same suite of rights and privileges as monogamous marriage, and there is still the problem of whether I can alter first husband’s rights after the fact and without his permission. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 17, 2013, 6:34am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/38 "2013-12-17T06:34:19Z")
> [@Bryan\_Ekers](#): > > Well, before you can make _that_ statement, we need to define some parameters of a polygamous marriage. Who gets a vote on whether or not another spouse can be added? All the current spouses? The spouse(s) who will be conjugal with the new spouse? Is the refusal of any one spouse a sufficient veto? This. In fairness, I should acknowledge that when I say legislating for polygamy will change the nature of all marriage, I’m assuming - perhaps without warrant - that the polygamy in question would look pretty much like established models of polygamy from other societies, except that it will be gender-neutral. Perhaps that assumption is unwarranted. But, given that assumption, if polygamy is introduced, my marriage could certainly be affected; my spouse could take another spouse without my agreement. Perhaps if the call was for “group marriage”, I wouldn’t make that assumption. In that case, I think, I’d ask for a sufficient explanation of the concept of group marriage, and how it would differ from a couple marriage, and how people might transition from couple marriage to group marriage and back again. But there would still be other issues. The key point about SSM, I think, is that same-sex couples want access to the exact legal status which opposite-sex couples already have. But a group marriage is sufficient different from a couple marriage that the status could not be the same. For instance, there would seem to be no room for a presumption of paternity in a group marriage. There would have to be a set of rules to govern the case where one spouse leaves a group marriage, has custody of children of the marriage, and is awarded maintenance; how would the obligation to pay that maintenance be allocated as between the other spouses? How would the respective inheritance rights of the spouses with respect to one another be ranked? How would the tax benefits, or detriments, of marriage be shared between the spouses? For obvious reasons, none of this is addressed in the current concept of couple marriage. And, of the rules which do characterise couple marriage, a large part of the justification for those rules is precisely the consideration that marriage is exclusive; if it ceases to be so, many existing rules would need to be reviewed. I guess the point is that the circumstances of a group marriage require (a) a review of the existing legal characteristics of marriage, to see if they are still appropriate in the context of group marriage, and (b) a whole new set of rules to cover issues which simply do not cannot arise in a couple marriage. The end result may be a status, and a set of rules, which looks radically different from existing couple marriage. Does this not mean that what group partners want is access to a legal status which accommodates the reality of a group relationship, rather than access to the existing legal status of couple marriage which, quite frankly, does not address the needs of their situation? None of this is an argument for not having a legal status that accommodates the needs of group partners. It’s just an argument that a demand for such a status is not analagous to the demand for SSM, which is an existing status that many couples currently enjoy. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 17, 2013, 6:45am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/39 "2013-12-17T06:45:09Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Polygamy comes in many different forms, and a contractual relationship among three people necessarily carries complications different from those inherent to a relationship between two people (when Lisa leaves the relationship between her, Bob, and Suzanne, if the kids are biologically Bob’s and Lisa’s, does Suzanne get visitation rights, and is Suzanne liable for child support? If Bob dies, and Lisa and Suzanne are heterosexual, is the relationship dissolved? If Bob is in a coma, and Lisa wants the plug pulled and Suzanne doesn’t, who decides? Are Bob and Lisa both eligible for coverage under Suzanne’s generous health plan, given its spousal coverage? What happens if Lisa also wants to marry Eric, but Bob and Suzanne don’t? Is it possible for Lisa to be married to Eric, Suzanne, and Bob, and for Bob to be married to Lisa and Suzanne but not Eric? etc.) I’ve seen this argument, and don’t believe it is as complicated as it seems. We have laws regarding partnerships already. State law provides default rules, but parties to a partnership can contract around them. So, in your situations, in order: Suzanne gets visitation if it is in the best interests of the child, no mandatory child support, relationship remains, the senior member of the group (first to join) decides, whatever the health plan allows, no new members in the group without unanimous consent, and a member can be in more than one group so long as all members of both groups consent. Those would be the default rules, but parties to a polygamous marriage would be free to change my default rules by contract. See. Problem solved. Legal polygamy now? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 17, 2013, 6:48am UTC](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502/40 "2013-12-17T06:48:01Z")
> [@jsgoddess](#): > > No. I am married to one man. My husband is married to one woman. We both have a set of rights that come with that marriage. > > If polygamy is permitted, I can marry another man without divorcing my current husband. Done. My current husband’s set of rights is now changed. Why would you assume that? [Previous page](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502.md?page=1) [Next page](https://boards.straightdope.com/t/court-strikes-down-polygamy-cohab-law/676502.md?page=3)