There’s nothing stopping rich guys from handing money to single moms now, but they don’t seem to be lining up to do it. I really have no idea why you think that, if polygamy were suddenly a legal option, rich guys would start marrying bunches of single welfare moms. Especially since people rich enough to support multiple households can just play sugar daddy to hot chicks, dump them when they get ‘old’ at 25, and not have to deal with kids or legal entanglements.
Presumably the legality would get litigated when some other state declined to recognize such a marriage or attempted to prosecute someone for bigamy.
The complexity is no more than that of ordinary partnership law. Still, if a court were inclined not to require that it be recognized, that would presumably have to be the hook for asserting that the state has a sufficient interest in making it illegal. On the other hand, the prospective marital collective seeking recognition would have a reasonable basis to contend that arguments about complexity are really just a pretext for animus, particularly when one looks back at the early persecution of the LDS church.
My understanding is that a polygamous prospective refugee must designate only one spouse, and that an immigrant seeking citizenship can be denied naturalization and even deported for practicing polygamy. Immigration is a somewhat unique legal realm where Congress has especially broad powers, however.
I don’t disagree with your analysis, but I am saying as we go further down this road we’re making it more difficult to ever turn it around.
Now the question in particular is about polygamy and I still don’t see how that compares to a marriage between two people. Any two adults (and sometimes minors) are allowed to enter into a single marriage now, no one is being discriminated against anymore. Polygamists are now asking for something new, for more than two people to be married. It doesn’t follow logically, a contract between more than two parties is greatly different than one for just two parties, the laws we have concerning marriage do not consider the possibility of more than two people to be involved so it’s not simply a matter of removing the arbitrary restriction that the parties are of the opposite sex.
It won’t happen anytime soon. Unlike gay marriage, you can’t just replace “husband/wife” with “spouse” on the legal documents and carry on as before. There will need to be a lot of political wrangling and arguing just to figure out what polygamy even means in a legal sense. I mean, if wife #1 wants to pull the plug and wife #2 wants to keep you alive, whose decision do we accept? If all three of your husbands have taken on the father role to your children, who pays child support when you leave them? If you don’t have a will, do all three wives split your estate equally, or does it depend on which wife you’ve had more children with?
None of these questions are unanswerable. And given a reasonable legal definition of polygamy, I’d be all for legalizing it. But there isn’t a demand for government to take on this task. And very few people are harmed due to the lack of legal polygamy. Polyamory is perfectly legal, which reduces the demand for this type of law even more. So I doubt we’ll see a significant number polygamy activists any time soon, let alone full legalization.
Why do people seem fixed on the idea of one many and many women, or vice versa? I can see a marriage involving any number of men and women, 4 men and 6 women for example, and I see it as inevitable as part of adults’ rights to congregate and associate as they choose. Obviously laws regarding property and responsibilities for minor children will need amendment to cope with the many possible scenarios.
One of the problems for a hypothetical state making polygamy legal is that it’s very hard to make a form of polygamy that isn’t discriminatory, is reasonably close to regular marriage, and that would actually have general support. If it’s too far from regular marriage then other states can simply decide that whatever that thing they do is, it’s not actually marriage so we just treat it as a business partnership for property, and expect higher courts to be fine with that. If it’s significantly discriminatory (for example, if it chokes when trying to handle a non-straight family or only allows limited configurations) then a higher court can rule that it’s not acceptable as law and either disallow it or refuse to force any other state to accept it. (AFAIK, countries that have polygamy today don’t require it to pass an equal protection analysis, so don’t have this problem).
I don’t see it as very likely that other states would be compelled to recognize much of another state’s poly marriage unless it was very carefully crafted. And I don’t see it as very likely that a state would actually implement poly marriage anytime soon, because it’s a complicated thing that has a split support base (the ‘fundamentalist religious sect’ polygamists are very different than most polyamorists, for example).
Actually, there’s a lot that I think ordinary partnership law doesn’t have to touch on at all - a typical business partnership doesn’t have create husband-wife privilege, doesn’t include automatic guardianship if one partner gets incapacitated, doesn’t involve kids at all, doesn’t have any of the support expectations behind alimony/palimony, doesn’t have implications for retirement/SS benefits, and a lot of other marriage-specific things.
The only real difference would be that these rich powerful men would have a legal obligation to their harems which they don’t have today.
Only if they marry those women, and I think a lot of them wouldn’t. I don’t recall Hugh Hefner saying he’d marry all of his girlfriends if polygamy was legal.
As for the law, I suspect it would be very similar to the laws regarding multiple next-of-kin. For example, a husband has multiple wives so what happens when he is in a coma? Same thing as when dad is in a coma with 3 or 4 kids (and no wife).
And how to the divorce laws work? If 9 people are married and one of them wants to be divorced does that dissolve the entire marriage? How is property divided in that case. What if there are 10 people and 5 people want to divorce the rest and insist that they are maintaining the marriage and the other 5 insist on the same thing? What about the children of such marriages in the case of divorce, do they go with the biological parents leaving the marriage or stay with the rest of the people considered their parents under the law?
Two person contracts are simple and well established. We have corporations because partnerships of more than two people can become horribly complicated. Changing the number of people in a marriage is not as simple as removing simple restrictions on the characteristics of just two spouses.
You hypothetical is too vague, as is usually the case for proponents of polygamy. Utah can’t just make polygamy legal without major legal changes. What are those changes? What is allowed and what isn’t? Here is a short list of questions that have to be specifically answered before your question can be answered:
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Who can be in the marriage? If men can have multiple wives, but woman cannot have multiple husbands it is a complete non-starter as that would be obvious discrimination.
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What form of consent is required. A and B are married. Can A marry C without B giving permission, or is B’s only way to object filing for divorce?
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What shapes are allowed? Can there be groups or chains? By that I mean if A and B are married can C marry A without marrying B? Is every participant married to all participants? Can A be part of a triad with B and C and then C marry into a quad with E, F, and G? What then is the relationship, if any, between A and F? This effects many legal aspects of marriage such as immunity from testimony, legal liability, and inheritance.
After you answer 3, then many more questions come up. Can you have a literally eternal marriage? Rich, 50 year old A marries 20 year old B and has two kids, a and b. They have a trust instrument that keeps the bulk of their fortune as long as a spouse is alive, then it goes to the kids. 30 years later A and B marry 20 year old C. 20 years later, A has died and B and C marry 20 year old D. 10 years later B dies. Where does that leave a and b? Their father’s fortune is now in the hands of two people in no way related to them who can continue to marry in a chain, keeping the fortune out of probate. Heck, at some point a or b (or their children) could marry into that arrangement after A and B have died. This is not possible now because A and C would never have been spouses in the first place.
There is nothing particularly wrong with this analysis except that it is completely arbitrary.
One could just as easily say that since Loving, “any man and woman may get married now, no one is being discriminated anymore. Homosexuals are now asking for something new, for two people of the same sex to get married.”
We could keep up those iterations and make marriage as strict or lenient as we like. However, there is nothing unique or earth shattering about your particular limitation.
I’m saying that marriage between any two people requires only cosmetic changes to the law. Polygamous marriage requires more that that. As noted, I’d prefer the government get out of the marriage business for the very reason you say, we could end up making marriage as strict or as lenient as we like, and each change creates unnecessary controversy and effort to implement.
I think I’m missing something, because it seems like you’d run into that today if Beth marries Cathy after Adam dies, then Cathy marries Dave after Beth dies, then Dave marries Emma after Cathy dies - you can just keep marrying someone so there’s always a spouse. It seems like you’d have to choose to write the trust in a really particular way to make that happen, and that the problem is that the trust is written specifically to do something that you don’t like, not that there is a significant issue with poly marriage per se. (A lawyer could easily write the trust either naming the spouses that count, or limiting the ‘as long as X is alive’ part to anyone married to Adam and Beth at the time one of them dies).
IANAL, I think I mixed up estate tax exemption portability with out right exemption. There is a benefit spouses get in transferring wealth at death that non-spouses would not get. It would have to be addressed, but it is not as big as I was thinking when I wrote that.
While I agree that marriage is a fundamental right, and the courts have indeed said so, to me it is a fundamental right for all consenting adults. Whether or not they love each other doesn’t seem like anyone else’s business. Interracial and gay marriage became more acceptable because they pointed out that it was unethical to deny marriage to people who wanted to get married (in these cases, because they loved each other). But polygamy differs from gay marriage in that it exposes the “underbelly” of marriage – why marriage matters as a civil institution, why marriage even exists, is for financial reasons (including child-rearing). I think a reasonable approach to legal polygamy is possible, but it is pointless to deny that it would be difficult, and might cause a whole lot of problems.
Perhaps off topic, but I wonder if you feel that way about green card marriages? Or bigamy of the kind where a man skips town and marries a second wife states away in order to avoid responsibility for his first family?
I’m not saying I’m against it, but these sort of “sham” marriages are one of the main reasons people disagree with polygamy. They claim it allows women to cheat the government by reporting that they are single moms, allowing these patriarchs to make far more money than they otherwise would.
Personally, I think making polygamy above board would restrict these types of shenanigans, but I think they are one of the main arguments against polygamy these days, not morality.
I don’t think polygamy has any reasonable parallels to gay marriage and so the reasoning will be fairly easily rejected.
That said, I don’t think its automatically awful, just in practice a lot of it is awful. I would suggest polygamy proponents begin writing laws to deal with issues such as split custody, inheritance, etc. as a response to inevitable questions of how a polygamous marriage will work
Rereading Obergefell (pdf), I see that the complexity arguments matter less than I had thought. The Court was clear that the relevant question was whether a fundamental right had been infringed, and suggestions of proceeding case-by-case as to certain benefits or awaiting democratic determination were explicitly swept aside (sec. IV).
Further, nothing about the four principles and traditions cited by the Obergefell court as the basis for its ruling that the right to marry is fundamental really changes if one substitutes “triads” for “same-sex couples” throughout. It is admittedly true that the term “two-person” does appear in the opinion here and there, IMO tacked on in a somewhat conspicuously extraneous way to try to forestall polygamous claims. The opinion offers no basis for restricting its conclusion to two-person marriage, however, and contains plenty of language on which a group of claimants seeking to uphold a state statute permitting polygamous marriage could rely. Ultimately, the argument is much the same: Marriage is fundamental, and overturning the hypothetical state statute permitting polygamy prevents two consenting adults who want to be married from being married.
Indeed, the complexity argument might even cut the other way. One of the factors that the Court cited was the benefit of “giving relationship and legal structure” to the families of same-sex couples, so that they could share in “the recognition, stability, and predictability marriage offers.” To the extent that triads and multiple-party families already exist, the legal and financial difficulties that they face arguably weigh in favor of legalization so that those questions can be resolved, not against it.
Every polygamous marriage is going to have to have bespoke legal arrangements. If Bob marries Ted and Alice, are Ted and Alice married to each other? Maybe they are, maybe they aren’t. Bob and Ted and Alice are going to have to spell it out in the legal documents setting up their partnership. There’s no way around this, because every set of people in polygamous marriages are going to have different ideas about how things ought to work. How to handle shared property? Written in the partnership agreement. How to handle power of attorney? Written in the partnership agreement. How to handle survivor benefits? Written in the partnership agreement. How to handle full or partial dissolution of the partnership? Written in the partnership agreement. What happens when someone dies? Written in the partnership agreement.
Or, if you don’t care about this sort of thing, don’t have a partnership agreement, you don’t need a piece of paper from the government, man.
The only problem with that is that everything works fine as long as everything is working fine. It’s when things aren’t working fine and you need help from somebody outside the partnership that it matters what is written in the partnership agreement. You don’t need a marriage contract to live together and share finances and have kids together and tell people you’re married. But what happens when you don’t want to live together, or share finances? How do you split up assets? What happens when someone dies or is in the hospital?
We already have one sort of partnership agreement with all the blank spaces filled in already, we call it marriage. If you want some other sort of agreement with one or more other people, draw up your own contracts. Call this partnership whatever you like. But the government can’t create and enforce the rules for polygamous marriages because every polygamous marriage is different. So make your own. Or wing it.
Legal marriage is what the rest of us outside the marriage are obligated to do. If you don’t care about that, get married just by saying to each other that you’re married, and the rest of us won’t have to do anything. But when your spouse is in the hospital and you’re not the legal spouse, who signs the papers? The legal next of kin, or someone with a medical power of attorney. If you aren’t the legal next of kin, who is? Probably the parents, or sibling, or child. Or who knows?
The point is, if you want to be the legal next of kin, you have to have some way of letting us know that. Either through legal marriage, or through a legal power of attorney. If nothing bad like hospitalization or death is going to happen to you, then don’t bother with the legal paperwork.