Polygamy advocacy

In My Humble Opinion
161

Serious question: How is this legally enforced anyways? AFAIK, no state seriously enforces fornication, adultery, or cohabitation laws, even if they are on the books. So what is stopping me from marrying one (or even zero) women and having ten others live with me and calling the rest my wives? Is it easy enough to evade the polygamy laws so long as I don’t apply for a marriage license?

If the issue is the publicly holding out of having multiple wives, could I not just make up a new name for them? Call them all my “Companions” or even my “Not-Wives”? Is it only the diehards that insist on challenging the authorities that can be prosecuted?

As an aside, I have actually seen two bigamy prosecutions in West Virginia during my time as an attorney, however I never represented one. Both were rather silly as they both involved men who were long separated but never divorced from a previous wife who had an idiot moment and married another woman while in Vegas (one) and North Carolina (the second) and moved back here hoping that nobody would care. Certainly not the most admirable behavior, but not worthy of a felony conviction IMHO. (both got suspended sentences).

162

In most states, the only thing that’s legally enforced is that you can’t legally marry more than one person. You are free to have additional partners who aren’t legally married to you.

In a few states your legal spouse can sue you for adultery, but most states have dropped that. And if your first (legally married) wife is okay with it, of course she won’t do that.

Utah used to have laws that made polyamory difficult, per my polyamorous friend who does legally support for polyamory, but i don’t remember the details. And i think they changed that law.

163

So, and it is not my purpose to restart the Gay Marriage Debate XXI, the idea there, at least from the opponents, was that nobody was punishing you for having a same sex marriage. You could live with a guy, have a preacher or your buddy or anyone, give you a certificate off of his printer and you could call yourself married and the state didn’t care, but didn’t recognize it. The issue was that you wanted legal recognition from the state with the benefits that flow from it.

It seems that polygamous couples must then leap two hurdles: first to circumvent being criminally prosecuted and then get legal recognition. I think Obergefell does open the second part up for serious debate, and it is hard to think of a secular purpose for prohibiting the first. Yes, you could argue that women feel coerced to enter into a polygamous marriage, but I don’t see how it is qualitatively different than growing up in an evangelical household where you a young woman is “coerced” into marrying a guy who impregnates her or even the nice boy from down the road. For the government to assume that a particular type of relationship is coercive per se is a very dangerous proposition, IMHO.

I guess a side question here is could a second or subsequent “wife” be prosecuted for holding herself out to be married to a man who she knows is legally married to another woman? In addition to other things, would that impact Free Speech rights?

164

You’re far more legally skilled than I. But IMO Free Speech is a red herring. At least as I (mis-?)understand what you may be advocating.

Any couple or threesome in any form of relationship can call themselves whatever they want, even call themselves Martians. That’s speech and being nothing more than speech is protected from Federal pre-intervention.

Where it fails is if they call themselves a legally significant term and then demand the benefits of the legal status they falsely claim for themselves. e.g. A non-married hetero couple who claim married filing jointly status on their income taxes may have a 1A right to claim “We’re married”, but with facts to the contrary have no right to claim MFJ status under IRC {whatever}.

The same applies to multiple relationships. I can have 10 women who co-habit with me and who I call “my wives”. I just can’t expect to put all 10 on my employer-paid health insurance or sign up all 10 to receive spousal social security off my record and expect that to succeed.

165

No serious person is going to advance the argument that a strictly reasoned decision about gay equality written by Anthony Kennedy actually intended to create an unlimited right to engage in any imaginable behavior and have it legally recognized as “marriage.” It clearly did not and the idea that someone is going to fund the years-long process of getting a case before the Supreme Court that argues on that basis is a ridiculous fantasy.

The analogy between gay marriage and polygamy remains inherently flawed. A two-person marriage and its accoutrements (divorce, child custody, bizarre unlikely situations involving marrying your second cousin while straddling a state border during Pentecost) is something that is extremely well defined in statute and common law. Prohibiting gay marriage is saying “you do not have the right to this thing whose existence and nature in law we all understand, solely because you are gay” and, by extension, “solely because of your sex” (a man has a right to marry a woman, but a woman does not → illegal discrimination based on sex.)

There is no template for “polygamous marriage” that covers all forms of the concept. There is no concept of “five people” having an equal protection interest in doing something that “one person” is allowed to do, such as marry a sixth person. Every arrangement must be individually negotiated, meaning this is a matter of contract law and not family law. The specific reasoning used in Obergefell is illuminating here:

Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.

This is the best argument for applying the Obergefell reasoning to polygamy, and it still will cause you problems. Sure, we all have the “right to personal choice” regarding whether to enter into a polygamous relationship. Whether the current regime (in which you can make a contract, but not a marriage, among multiple romantic participants) suppresses that right is highly debatable, especially since as a practical matter it would have to continue even if the marriage was legally recognized as such. The fact that many existing polygamous relationships, in reality, involve infringement on “personal choice” and “individual autonomy” is going to work against you here.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

This clearly implies that polygamy is something outside the bounds of the Obergefell reasoning.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. … Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing
their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue
thus harm and humiliate the children of same-sex couples.

Again, a problem - there will be no general guidance for children of polygamous relationships, it has to be negotiated contract-style in every case, and it’s fairly obvious that being raised by polygamists is itself a potential burden on children that the state may not wish to encourage.

Try arguing that polygamy is “a keystone of the Nation’s social order” in front of Roberts and Alito and let me know how that works out.

166

Polyamorous friend mentioned above is part of a throuple. They have two kids. She wasn’t able to get pregnant with her own eggs, so they ended up getting eggs donated by the daughter (from a previous relationship) of the other women, and the guy’s sperm. Those children are living with their bio-dad, their bio-grandma, and their womb-mom.

Having three parents has been great for them. There is always a parent available. When the dad was critically ill and hospitalized, the moms took turns staying with him in the hospital and caring for the kids.

I’m sure there are some polygamous relationships that are bad for kids. But i don’t think it’s a priori bad to have more than two parents.

167

The two subjects I kept scrolling for and not finding in this thread are children, and power.

If women need a man to support their children, if not themselves – and there is no surer way to drop into poverty from the middle class, in America, than to become a single mother – then all of the arguments about the legality and morality of polygamy are skirting the issue, which is autonomy and ability to choose. It doesn’t matter if you are fifteen or thirty, if the man has one wife or ten, if you cannot support your own children if you leave.

Children are essential to the imbalance of power which leads to polygamy. There are plenty of other places to point fingers, but the whole discussion is about power, the power that men have over women. Now that feminism has scrabbled out a bit of financial freedom for women, those without children have the possibility of escaping onerous marriages, even where, culturally, men are so dominant that it’s probable a woman would have to severe all her relationships to her friends and families to make a new life somewhere else. But with children? That’s so much harder.

Modern polyamory, with or without legal structures, is predicated upon women’s control of their own finances, and what happens to their children in the event that sexual arrangement breaks up. Again, about power.

168

We can always compare the best of one situation to the worst of another. I think it’s self-evident that:

*In most cases, people will care less for their other people’s children than their own; that time spent with “the other wife of one’s mother’s husband” is, on average, going to be a less than ideal relationship for a child compared to being raised by an actual set of two parents, biological or otherwise, can be taken as a given.

*In most cases, polygamous relationships are more likely than two-person relationships to dissolve over the long term, and this works against the “stability” interest of the child.

*In most cases, polygamous relationships are based more on immediate sexual gratification than is ideal for people in the later stages of life, and this works against the stability interest as well as the other potential functions of being raised in a household oriented towards the other parts of family life -are people who think having kids as polygamists at age 26 is a great idea going to figure out how to pay for college at age 44? More or less likely than a two-person household to engage in long-range planning of family functions that have nothing to do with sexuality? More or less likely to cause problems with which wife’s kids come first when money is limited?

*In all cases, the best interest of the child is to govern. You’re describing a situation where, because there are no issues with the children, the household is able to maintain their polygamous arrangement now. Is the state bothering them over it? Are they missing the ability to do something that declaring this a legal marriage, without further negotiation of specifics, would grant them? Remember, there will be no “mom #2 automatically has the right to the kids when mom #1 is in the hospital” because not every polygamous relationship works that way and the infinite number of possible combinations and arrangements means that any rights the unit wants legally enforced have to be specified and written down for that marriage in particular - just like now. This is where “just treat the same-sex marriage like the heterosexual marriage” as an analogy to polygamy totally breaks down.

As a matter of public policy, declining to encourage polygamy because on average it is worse for children is perfectly valid, especially if the state can show that specific cases in which polygamists with children are not working against the children’s interest, no unusual harassment of the relationship is taking place. I believe that this could be shown in any appellate hearing on the issue.

169

The state is not bothering them. And the state allows domestic partnership contracts among more than 2 people, so if they want to have legal protections, they can get the state to support them. I don’t know whether they have actually done so.

The things you can’t do by contract have to do with how third parties react to your arrangements. Will the rental car company let your partner drive the car? Will the vet release your cat to your partner?

I am not arguing for legal marriage among groups of more than 2 people. I think there are an awful lot of details that would have to be worked out, and I don’t think “one size fits all”. Just among my friends, I know threesomes that are really a single “unit”, threesomes where a woman is in a relationship with a guy and a gal, but those two aren’t really in a relationship with each other, threesomes where a guy has relationships with two gals, and threesomes where a gal has relationships with two guys. (okay, that one split up, although they are still on good terms.) Some of these groups have kids, and some don’t. Yeah, it’s complicated.

But in my experience, all the parents in the relationship take a strong and loving interest in the children in the household. People adopt kids and care for them as if they’d birthed them. If the assumption is that that kids are children of all the adults, the adults will play that role.

This is different from more traditional polygyny, where a guy has two separate wives in two separate households, and his attention and resources are split between the two households and the two sets of children, and the wives primarily care for their own children. That situation is certainly common, too.

I don’t see either of these as “best” or “worst”. I honestly think the first situation is on-average, better than having only two parents, and the second situation is, on average, worse than having two parents all to yourself.

170

Yes, this

The way it currently works in the polygamous cult world is that one wife (usually, but not always) is legally married to the husband. The rest of the “wives” are married in a religious ceremony but are single in the eyes of the law.

These days, most of the cults generally (there may be exceptions) wait until the woman is 18 before executing her religious marriage ceremony- it saves them a lot of legal trouble. The exception is the first, legal wife - who can be married at a younger age with parental permission, because she is actually getting legally married. This was the case with Elisa Wall, the victim in the case that put away Warren Jeffs.

There has always been a trickiness to prosecuting these plural marriages, because legally they are just extramarital affairs and prosecuting them just because the spouses participated in a legally meaningless religious ceremony smacks of religious discrimination - unless you start going after every couple that purports to be married when traveling together or checking into hotels.

I doubt that the leaders of the polygamy cults want legalized plural marriage, they like having it both ways. They get their multiple wives but they have no legal obligation to support them or their children - the cults usually expect the wives to go on public assistance as single mothers.

I’m not sure that fully legalizing polygamy is a good move, but I think some form of decriminalization would be a net positive to the women in these cults.

The stigma and legal gray areas surrounding polygamy serve to further isolate the cult members from society at large. Some cults, like the FLDS, physically isolate their members in communities controlled by the cult. But the FLDS isn’t the only cult out there and it’s not even the worst. There are other large cults whose members where modern clothing and live the cult life inside the larger secular community. They may only shop at cult owned businesses and live in cult-owned apartments , but those businesses and apartments are indistinguishable to an outsider from non-cult businesses.

These cults (I’m thinking of one called the Kingston Group as I write this, but there are others that are just as bad) hold their members in economic slavery. They work for cult-owned businesses, their paychecks are deposited in cult owned banks, their pay is converted to credits that can be used only at other cult businesses and they are not allowed to freely access the real money that is in their bank accounts - they need to convince the banker that they really need it, then the banker may or may not decide to give it to them. Even if a woman’s husband sets her up in an apartment, the cost of that apartment is deducted from her account. Children are expected to work and charges for their room and board are deducted from their pay. Good behavior is rewarded by good jobs and extra access to money, disobedient members are often sent to work on the cult ranch or in the cult’s silver mine.

The cults also engage in payroll, tax and welfare fraud on a massive scale, and because the groups are so insular, they frequently get away with it.

One thing that helps them get away with it is fear. They instill fear in their members, fear of government and fear of prosecution and persecution. And this fear of persecution and stigmatization keeps cult members from reporting crimes and seeking help from legal authorities. High profile polygamy prosecutions were used to whip up fear and increase isolation. I think if you remove those stigmas it’s the first step towards opening these closed communities and curbing other abuses. It may not help much, but it’s a start,

The sexual abuses that take place inside cults are not the only abuses and IMHO, the financial abuses are far worse. But they lack the lasciviousness that make them newsworthy. “Cult leader arrested for facilitating sex with underaged girls” sells, “Cult leader arrested for fraudulently obtaining millions in federal funds for non-existent businesses” puts people to sleep.

FYI, there are plenty of other noxious cults that arrange marriages and exert total economic control over their members but don’t practice polygamy or kinky sex practices… And they never get any press, because if there’s not a sex angle, it’s boring.

171

I’ll try to find a cite, but I don’t think the reason that these polygamists in Utah are serving decades in prison is because they foolishly tried to claim legal benefits for multiple wives. I may be wrong, but I think that just saying that yes, these two women are my wives, is illegal in some states.

I read your whole post, but wanted to highlight this. First, the Court did not use sex discrimination as a reason to mandate nationwide same sex marriage; it used the flowery language of dignity and nobility that even John Roberts harshly criticized.

And yes, as Roberts said, the Court threw around the word “two” in many places to describe marriage, but did so without any legal analysis or support. Another Court could have easily emphasized the opposite sex nature of the union instead of the number of persons involved.

Which is where the argument for legal polygamy comes in. Let’s say that I am long separated from my wife and a new lady I meet is long separated from her husband. We have little money and little legal knowledge. We want to exercise our fundamental right to marry one another.

What is the rational basis to single us out for special hostility under the law? Is it because it is too hard for legislator to figure out how to handle it? How is it any harder than in a same sex marriage to define things like paternity? We assume that a husband is the father of his wife’s children unless proven to the contrary. Do we assume that a wife is the father of her wife’s children? That would be an absurdity because we know it is false, and someone else out there may have a claim.

In short, I won’t repeat my disagreement with Obergefell, but one simply cannot, as Roberts explained, say that two people are a magical unyielding part of it when the opposite sex nature of it is clearly not. Polygamy has far more historical support than same sex marriage, and if I was a polygamy advocate (to turn this back around and get it on track) I think I would have a much stronger case that Mr. Obergefell.

172

“Urban liberals living together in a hippie commune” is not the historical form of polygamy. Bring history into it and once again you’re forced to deal with the fact that in the vast majority of cases worldwide - up to and including the present day - polygamy means one man and a harem of women whom he owns effectively as slaves after trading money or cattle to their fathers for them.

You can disagree with the actual reasoning used to establish constitutional protections for same-sex marriage all day long. “I disagree with the precedent and want the courts to do what I prefer, despite the law and history being against my side” is an opinion that no one will stop you from having. But it isn’t an argument that’s going to win you a ruling establishing a right to polygamous marriage at the U.S. Supreme Court anytime soon.

What is the rational basis to single us out for special hostility under the law?

Please show me any case, regarding marriage or any other topic, where equal protection reasoning was used to extend an individual right to “a right that multiple people must be allowed to exercise at the same time.” “Groups of people” are not a protected class; arguing that allowing any person to enter a marriage to a man implies that we must allow six people to enter a marriage to a man is as silly as arguing that we must issue six-person driver’s licenses or hire six people at once for a job opening. “Right of heterosexual person → right of homosexual person” or “right of man → right of woman” is fundamentally NOT the same thing as “right one one person → right of group of people.” This goes beyond U.S. constitutional precedent and into basic facts about physical reality and the definition of personhood.

173

  1. There are laws to deal with coercion. Simply because some people are coerced into a particular relationship does not mean all of those relationships should be illegal. Employment contracts, plea bargains, and rules to attend school are sometimes coercive. Especially with something as fundamental as marriage. How many people are told by their evangelical parents that they should marry that girl who they got pregnant? Should marriage itself be illegal because it is sometimes coercive?

  2. As far as trying to win a legal hail mary because it is against law and history, that is exactly what the Obergefell plaintiffs DID. The opinion itself notes that marriage required an opposite sex nature of the couple involved until the year 2000 when homosexual marriage was legalized in The Netherlands. The dawn of civilization until the year 2000 is pretty strong law and history and not an argument against it.

Many rights are inherent as group rights: peaceable assembly, freedom of the press, militia gun ownership, etc. Even a traditional marriage is a “group” right in that there are two people involved. What historical or legal principle says that two is okay but not three? Tradition? Morality? That argument was stronger for the opposite sex nature of marriage than the number of persons involved because at least polygamy had roots in history, even in the United States, while same sex marriage had no such tradition.

The only legal distinction that could be made was the one that Scalia and Roberts pointed out in dissent: that five of nine lawyers made a value judgment. They believed that same sex marriage was good and therefore had to be part of the Constitution. But using legal judgment, there can be no real distinction based on the number of people in a marriage because that type of relationship gives some people the exact same happiness that a same sex marriage does: the nobility and dignity that their family structure is just as good and normal and decent as everyone else’s.

174

IANAL, but surely there were “historical or legal principles” appealed to in the legal prohibition of polygamy in US states?

175

It’s not - as long as everything is going well. What happens if the relationship ends and each of the adults goes their own way - do the kids have to split their time among three (or more) households , or are some of them more like step-parents, who don’t have any legal relationship to the kids when the step-parent’s relationship to the legal parent ends? I’m not sure which would be worse for the kids- to have to split their time among three (or more) households* or to have one or more parental types just disappear from their lives.

  • which has the potential to multiply problems already faced when 2 parents divorce - even when everybody is trying to get along there are going to be scheduling conflicts, but when there are only two, it’s not that hard to switch weeks when some event (maybe an uncle’s wedding) falls during the opposite parents weekend. If the kids have three (or more) separate households entitled to parenting time, there will be more conflicts ( simply due to more people being involved) and it will be harder to rearrange times in a way that will satisfy everyone.
176

Yeah, divorce sucks for kids. Bad marriages suck for kids. There’s certainly a tradeoff between the risk that something goes wrong and more resources if everything works. The two polyamorous households that I know with kids (yeah, massive sample size) have both done okay. One is still together, with the kids in college, and the other split into a couple and a single, but stayed on good terms. So the single turned into a sort of step-parent, I guess, or non-custodial-but-living-nearby parent. There’s certainly potential for much worse outcomes.

But you can say the same about going from one parent to two – more resource, more risk of breakup and strife.

I’m sure that some number is objectively too many. The parents don’t feel invested, they are likely to have a messy split, etc. And I’m pretty sure that 2 is better than 1. (not in every single case, of course, but on average.) The tiny sample of throuples-with-kids that I’ve seen makes me think that 3 is at least as good as 2. But I admit to a paucity of data.

177

That’s kind of why I kept saying “three (or more)” because nearly every argument in favor of polygamy applies to any number - on a practical level, there are lots of things that might work out OK for a throuple but not for a larger number like visitation. But I really can’t see any argument to allow legal polygamy and allow only a limited number. There are arguments that society and the legal system are already set up for one spouse per person and that the one spouse has a list of rights and responsibilities - the right to financial support , to make end of life decisions unless someone else has been chosen, to automatically inherit a certain portion when sometime dies intestate , SS survivor benefits etc. - but once you have dealt with all those issues for a throuple, you’ve dealt with them for a man with 20 wives. You really can’t say “We’ll do it this way for marriages that consist of two or three people and this other way for marriages with 20 people”

Either there is a “first” spouse who has the legal rights and responsibilities that spouses currently have and a number of lesser spouses who don’t or you have to decide what to do when multiple spouses don’t agree about medical decisions. Although lot of these decisions can be made in advance by those in relationship , like signing a health care proxy or a will , we still need to have a default for those who never signed anything. It’s easy to say that the two widowed spouses can split the survivor SS benefit of the third and it’s also easy to say that each should get their own half-benefit - after all, that’s not much different from the case where an ex-wife and a current wife both collect a half-benefit. Except it is different- because an ex-spouse only gets benefits if the marriage lasts at least ten years so there is a practical limitation on how many ex-spouses collect while there isn’t any marriage duration requirement for a current spouse. So maybe we have them split the half-benefit - which might be OK for two spouses but not so much for ten.

And then there are the ways society treats spouses - for example, it would be quite rude for someone to invite me to a wedding and not my husband. If I’m in a marriage with ten other people, will the whole group be invited or will each person be invited on their own, with no pair or group seen as a social unit?

I’m not saying these are reasons to oppose legalized polygamy - I’m just saying the legal and social result at the end of it may not actually look much different that the current situation where two people are legally married to each other and any other relationships are separate from the legal marriage.

178

Yeah, it’s extremely messy. Legalizing non-marriage domestic contracts is probably better than expanding “marriage” to more than 2 parties. Then if people don’t choose to form a contract, we can treat them like all the other unmarried people who live together.

179

Bumped.

This may also be of interest:

180

How does “groups of people” enter into the discussion? What we’re talking about here is the right or ability of ONE person to marry ONE person at a time. Yes, theoretically, a man could desire to marry 2 or 3 sisters in one ceremony – but that sort of polygamy is vanishingly rare. It is far more common for polygamy to get its start by having a traditional marriage turn into a polygamous marriage at some point down the road. And how does that happen? By having ONE additional person marry ONE of the people already in the marriage.

You seem to be under the impression that the 2nd bride (or whatever) marries the “marriage” as an entity, which is not how polygamy works.