You’ve offered a framework to address one problem, just a few hundred more to go.
And for what it’s worth, I’ve suggested that polygamy should develop (if it does) out of partnership law rather than marital law for some time.
Why would she not assume that? What legal definitions and framework for polygamy did you have in mind? The longest-established version is one man, multiple wives, and if the man wants to add another wife, he doesn’t need the consent of his current wives.
You write these into law and get them voted on, and sure.
The thing is, that’s what you’re suggesting: writing lots and lots of new laws. All of your suggestions (except IMO the last one) are reasonable solutions to the problems created by polygamy, but none of them are covered by existing laws. Without lots of new laws–around which there will be a ton of debate and lawsuits, of course–polygamy can’t be done.
No crayon solution.
One possible solution to one set of problems: declare that a marriage is between two or more consenting adults, that there’s no such thing as a chain or branch marriage but that they’re all group marriages for legal purposes, and that adding a new person to the marriage can only be done with the signed consent before a clerk of court of all current members of the marriage.
That way poly marriages are the same structure and 2-person marriages, but a 2-person marriage doesn’t get diluted by poly marriages without the consent of both people in the marriage.
You’ll still run into difficulties (when ten people try to add an eleventh, but only one of them blocks, the current 1-year-waiting-time on divorces is gonna get challenged in court; you’ll have people saying they signed the consent under duress and trying to have the new marriage nullified or otherwise challenged; there will be questions about whether a new person can be added without a signature if the non-signer is in a coma but clearly and repeatedly consented to the addition before entering a coma; etc.), but I think this structure might solve some basic problems.
Still, though, it’s a significant change to the law as written and would need more than the crayon approach.
The setup that I “seem to imply” is one in which one partner wants to marry multiple people. I do not believe that there is widespread interest in true “group marriages” (that is, ones in which all the partners are married to each other); I’m not aware of any substantial historical instances of such communities, although they undoubtedly exist. I absolutely agree that the “group marriage” situation could be handled by a relatively straightforward application of parternship principles.
But I’ll try to address your comments in perspective of my view of “polygamous” marriage (i.e.: Frank marries Bob and then Frank marries Lisa, but Bob and Lisa are not married to each other).
I don’t know which your “three hardest hypotheticals” were, but the answers are: 1) No. Suzanne has no claim to the children. 2) Yes. Because Lisa and Suzanne are not married (and their sexual orientation is irrelevant). 3) Hold this one. 4) No. Just the person to whom Suzanne is married. 5) Hold this one. 6) You’re right, I don’t have an answer to this one. Maybe we don’t allow hybrid polygamous and group marriages. But I wonder how likely those would be.
So to break out the ones that I “held.”
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“Pulling the plug” on Bob is a difficult question. But that’s true in monogamous situations. Leave aside the absurd political circus surrounding Terri Schiavo, it raised a serious question about how you handle situations in which multiple parties (plausibly) claim to know what the patient wanted. I assume we allow my wife to make the decision on the assumption that she would know best what I would want, not as some collateral benefit of marriage. If there is a dispute between the wives, then I think it should be handled by an independent source (probably a court). But I’m also inclined to think that’s true when the parents and the spouse are in conflict.
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This addresses the relationship that you suggest that I imply. And it’s a fair question. On the one hand, we have taken a fairly negative reaction to notification and/or consent requirements before the exercising of a fundamental right. But this is a pretty good situation for it. The other obvious alternative is to treat it like adultery as a “fault” ground for divorce from the first wife. If my wife consents to extramarital sex, then it’s not a “fault” ground. If she doesn’t, then it is. Perhaps we give her the ability to terminate her marriage (on ground favorable to her) in the event that her spouse marries without consent.
Property distribution is a good question. The first step is to return to Justice Holmes’ no attributing fruits to a different tree approach. This would necessitate eliminating community property regimes, but that’s a minority position anyway. So then, Bob will own separate property. He will own joint property with Lisa and joint property with Frank (each of whom will own separate property as well and so on).
This can extend, for example, to estate law as well. In Virginia, for example, if I die intestate, my wife gets everything. But I can alter that arrangement by drafting a will. But only to a point, my wife can get the elective share, even if I attempt to exclude her. It would not be too difficult to create a system in which your share was broken down by number of spouses (with appropriate provisions made for children, etc.).
And this is just me thinking for 15 minutes on a Tuesday morning. We live in a common law system where people far brighter than I can work through the issues. (Heck, for all our focus on default rules and clear obligations, we just went through a thread and impute some marital obligations on a non-married couple in the interest of equity). The fact that the legal system would have to make some adjustments is no reason to deny people a fundamental right.
There is no reason the law cannot require the consent of all parties. Problem solved.
Polygamy can be as she described but it needn’t be.
You realize that this is the entire point when someone describes polygamy as being far more complicated than monogamy. You have to create one set of rules that applies to all marriages. The rules have to be defined, and in a multiple marriage situation, there are a lot of different potential rules that do not exist at all in a single marriage situation. Will the rules you come up with support every polygamist’s idea of marriage, or will they have to bend to whatever structure you decide is correct?
My other problem with polygamy is that it historically supports a power imbalance in the relationship. I would want “modern polygamy” to be sensitive to that, and not inherently support those imbalances. We’ve moved the current model of monogamy away from where wives would be called Mrs. John Smith to where husbands and wives are equals. That needs to stay if polygamy gets legal recognition.
They’ll have to bend to what we, as a society, decide is correct. Just like monogamous marriage.
Absolutely. I see no reason that our society would tolerate anything less.
So, again, what are the rules for adding new spouse? Be specific. You just keep saying that it’s not a problem without actually talking through the issues. Why does the consent of all parties, for instance, fix things in your mind?
John Mace, simple question: Will the rules for polygamous marriage be the same as the rules as for monogamous marriage?
Honestly, the only way I can think of to make it fair is to allow polygamy in a “chain” fashion. Give some limit to the number of marriages you can have. For the sake of argument, let’s say three is the limit (primarily to contain the mathematical tree that would follow).
So, Bob and Lisa get married. Bob can also take Beth and Stacey as wives. Lisa can also take Ben and Jerry as husbands. Each Beth, Stacey, Ben, and Jerry can each have two more spouses each (of any gender. Keeping Male vs Female for ease of tracking the relationships)
Tax laws would have to be modified to allow for four entries (you plus three spouses) and no person could be on two different personal returns.
Situations where a spousal benefit applied, such as deciding on health care or life insurance payout, would be applied in a percentage-basis. So if you have three spouses, you’d need two to agree to a particular course of action. With two spouses at an impasse, it would have to go before a court for decision - with a special exception in emergency situations where the doctor gets to be a tie breaker. For things like life insurance payouts, you would elect “spouse” or “non-spouse” payout. For “spouse” payout, whoever your spouses are at the time of your death would get $/#ofSpouses. “non-spouse” would be stating a beneficiary. If the beneficiary is a spouse at the time of demise, that would automatically split the payment to the spouses.
Children are the responsibility of the pair that bred them. Additional spouse involvement is purely voluntary and doesn’t mean that if there’s a divorce that they must continue care.
Living arrangements would have to be worked out by the individuals in the relationships.
If you wish “group” polygamy for your particular situation, each partner could take a spouse of another partner. So, for simplicity sake, a four person group could have each person married to the other three persons.
I agree with this paragraph: it can be done, and yes, it should be done.
But that’s not my point. I never said otherwise.
What I’ve said is that actually writing the laws, and then getting sufficient legislative consensus to pass a particular version of those laws, is a lot harder than the crayon method that would work for SSM–and that you now seem to be suggesting wouldn’t be enough for poly marriage. We should institute SSM immediately, because it’s the right thing to do and it’s so freakin’ easy to do. We should institute poly marriage as soon as we figure out an appropriate legal framework for doing so, which is gonna take some more time.
For example, I think that group marriages are the only reasonable form. If you want to treat your group marriage as a branch marriage for purposes of who shares whose bed, that’s absolutely fine, nobody will stop you; but for legal purposes it’s going to be far too confusing to have marriages in which five people are involved but only some of them are married to each other. This differs, I think, from your proposal which favors branch marriages and discounts group marriages.
There are no completely obvious answers to these questions, which is the difference between poly marriage and SSM. Get the latter done NOW, and figure out the former as soon as we can.
And REALLY complicated when children are involved and one spouse leaves the marriage.
I have a friend who was in a poly marriage - she was the stay at home mom to the bio child of her husband and wife - so she had no legal claim to the child when her wife took him when the marriage broke up (and my understanding was, it shattered). She also had no responsibilities - she didn’t need to pay child support. He, as the bio father, but a bio father who had taken almost no role in his child’s life (I met him once, he seemed to be the “two bisexual chicks and me, this is cool” type) could have gotten visitation rights (I don’t think he pursued them), but was on the hook for child support. Bio Mom held all the cards - although my friend had been the primary caregiver.
Given the construct of the relationship, my friend should have had both visitation rights and responsibilities for the child (if not primary custody), and sperm donor should have been off the hook. Or all three of them should have maintained responsibility, as each had a role in the decision to have and raise a child.
Great, now get jtgain on board.
At some point, there are going to have to be some compromises between those who see group marriage as an endlessly-flexible expression of freedom and those who recognize that a legal concept like group marriage (or anything else) needs definitions.
What would then be done for divorce? Let’s say that Alan, Brenda, Carol, and Derek all consented to adding Erin to the group marriage. After two years, Alan and Erin are still fairly happy with each other, but Brenda has grown to hate Erin and no longer wants to be in the same group marriage as Erin. Brenda wants to stay in the marriage with Alan, Carol, and Derek, but wants to sever all ties with Erin. What would happen in this case?
Under current law, both people must consent to join in a marriage. Either person may make the decision to leave the marriage.
Under my proposal, it’s the same. Everyone must consent to add a new person. Anyone may decide to leave the group marriage.
In your scenario, Brenda has a choice to make. Here are her options:
- Leave the marriage. Nobody can stop her; everyone else stays married.
2a) Remain in the marriage and grumble.
2b) Remain in the marriage and try to convince Erin to leave.
2c) Remain in the marriage and try to convince everyone else to divorce-and-remarry, but this time don’t include Erin in the marriage.
The group is an all-or-nothing thing under my proposal. But you can divorce and form a new all-or-nothing group if that’s what you want.
Again, though, this isn’t the only possible arrangement. You might have some sort of “vote off the island” option, or you might have some sort of branch or chain marriage configuration. THIS IS WHY POLY MARRIAGE IS MORE COMPLICATED THAN DUAL MARRIAGE.
It’s worth figuring out, but it’s much harder than SSM is.
One thing to consider:
a couple of centuries ago, marriage law was, I believe, very gendered in the US. The law enshrined certain rights and obligations for the husband, and a different, often lesser, set of rights and obligations for the wife. While there was some overlap, there were also a lot of distinct differences.
These differences have been mostly wiped out, and so my Crayon method of altering marriage laws is easy.
But what if they hadn’t been? What if, for example, the law said that the husband was the legal owner of the couple’s property, or that the wife was owed alimony from her husband upon divorce? My crayon method wouldn’t work for introducing SSM, because in a two-woman couple, how would you decide who was the legal owner of the couple’s property, or who owed whom alimony in the case of divorce? You’d have to change a lot of laws and rethink a lot of laws to make that happen.
I think that’s the case we’re in now. Our laws have been degendered regarding marriage, but they’re still very firmly based around the idea of two people being in the marriage. It took us centuries to degender these laws to the point that SSM is feasible. We can go through the same process for poly marriage much faster, but it’d be foolish to pretend like we don’t need to go through the process at all.
I don’t care too much about polygamy one way or the other but I don’t consider it to be a civil right in the way of gay marriage. Sexual orientation is an inborn, intrinsic trait. Loving multiple people is not
Cite?
Quite a few millennia of polygamy suggests that loving multiple people may well be an inborn characteristic, (even with all the property and progeny baggage associated with it).