Among those who favor marriage discrimination, one of the arguments commonly trotted out is that if we allow gay marriage, then there is no rationale for for opposing polygamy. This argument is almost too silly to be taken seriously, but one of the key differences it fails to acknowledge is that gay marriage is structurally and functionally identical to “straight marriage,” whereas the introduction of polygamous marriage would require the extensive adoption of legal structures currently unknown in the United States.
Now that coverture has been abolished, marriage is a gender-blind contractual arrangement, with one glaring exception: its entry requirements. Legally, the gender of any particular spouse has no relevance as to how marriage laws are administered — marriage is nothing more (legally speaking) than a specialized contract between two parties which confers on them a laundry list of legal privileges and obligations, as well as recognition as a specialized class under certain statutes, such as, for instance, the tax code or debt collection law.
Because of marriage’s gender neutrality, the recognition of gay marriage requires no change in the law, other than removing gender discrimination in regards to who has access to marriage contracts. Polygamy, on the other hand, is a helluva lot harder to implement. Unlike gay marriage, allowing polygamous marriage would require the creation of an entirely new form of marriage contract — or rather, it would require the creation of entirely new forms of marriage contracts.
While I consider the legalization of gay marriage to be of an extremely greater social, moral, and legal importance than is the question of polygamy, I do think polygamy should be permitted. Or, to put it in a more conservative manner: I am in favor of the deregulation of marriage. Although I am fairly neutral in regards to the idea of polygamy in general, I am a strong proponent of allowing people to structure their lives in whatever manner they believe best serves their own pursuit of life, liberty, happiness, etc. And for some people, that’s going to include non-traditional marriage forms.
Although politically speaking I think it is exceedingly unlikely that polygamy will ever be legalized in the U.S., other states, including Canada, are in fact grappling with these questions now. But what if we did want to make polygamy legal in the U.S.? What would it look like? What legal structures would be required to implement it? This post is intended as a sketch of what would be needed, in terms of legal structures, to create the institution of polygamous marriage:
To start off, there are two distinct sets of legal complications that the legalization of polygamous marriage would create: internal problems and external problems.
Internal problems are those issues relating to the entry and exit from marriage contracts, and the duties and rights of parties during the course of the marriage. For instance, the questions of whether a party is allowed to enter into any given additional marriage contract, how property is to be distributed upon death or divorce, or which spouse has the power to make medical decisions on behalf of a patient are all issues that current marriage laws would not be able to address in the context of polygamous marriage.
External problems, in contrast, are the problems resulting from the interaction of government regulations and/or non-marriage contracts with polygamous marital unions. These are the legal confusions that would arise from attempting to apply our current laws — which recognize only one standardized form of marriage — to a world in which multi-party marriages are permissible. For instance, how would health insurance plans that cover spouses apply? Which spouse gets social security benefits upon the death of a shared partner? Would spousal immigration regulations apply in the case of a polygamous marriage? If a woman with two husbands dies and leaves no will, who does her estate go to?
For purposes of this post, I’m sticking to the question of the internal legal issues posed by polygamy — i.e., what the polygamous marriage contract would look like. The external problems are a lot more complicated, and a lot more varied, than can be addressed in a single post. However, I am confident that current U.S. law could be adapted to handle plural marriages. Our laws already discriminate between marriages based upon their degree of seriousness; for instance, social security regulations give special recognition to marriages that lasted ten years or more, as opposed to those shorter than ten years. There is no reason to believe that the law could not be adapted to discriminate between marriages based on factors of quantity as well as quality, although the question of which sorts of polygamous unions warrant recognition would be a delicate policy question.
Additional note: For this discussion, I also leave out completely the issue of children and child custody laws. Although that would certainly be an important legal issue to be addressed with respect to polygamous marriage, it is not a question unique to it. I also favor a complete overhaul of the laws of parenthood and guardianship in the United States. With the advent of reproductive technology, it is simply no longer the case that a child will always have a clearly definable biological mother and father. Given the variety of combinations that can go into the event of child production today, acknowledging and allowing for more complicated parenting arrangements is a vital change that needs to be made to family law.
Types of Polygamous Marriage Contracts
(1) Group marriage contracts: I’ll start with the easiest form of polygamous marriage contract: the group-style marriage of three or more parties, in which all parties are equal members of the union. I call this arrangement the “easiest” because we already have a well-developed body of law to draw from in administering this form of marriage: business association law. In a group-style marriage, the marriage would be, in effect, an incorporated entity. As with corporate law, group marriages would possess articles of incorporation specifying the terms of the arrangement and, most importantly, would have provisions regarding if and how new members are to be admitted into the marriage, and how property is to be distributed in the event of dissolution by a member.
Given that my knowledge of group marriages comes pretty much exclusively from science fiction (Heinlein, Haldeman, and Le Guin, among many others, all have fiction featuring plural marriage structures. Even Caprica briefly features them), I’m using those general family structures as my example here. For instance, Heinlein’s line marriage would be a candidate for adopting a group-marriage style marriage contract. Line marriage is depicted in Heinlein’s novels as a “[p]olygamous custom evolved in Luna City. Spouses are opted in at fairly regular intervals (usually alternating sexes), so that the marriage/family never comes to an end. The arrangement is intended more to provide emotional and economic security for the children than sexual partners for the adults. Younger spouses are almost more ‘adopted’ than married. Children marry outside the line marriage.” One of the benefits of line marriage touted by its practitioners is that the marriage is, in effect, immortal. No one can ever be widowed, and there are always plenty of hands around to help with familial duties. Children of the union are guaranteed to have care and supervision provided by multiple adults, and with so many spouses, there can be a very specialized division of labor among spouses.
In effect, Heinlein-style line marriage constitutes a corporate entity that is dedicated to establishing a stable and nurturing family life. (Well, if you take Heinlein’s word for it, anyway.) Because a series of interwoven two-party marriages would not provide the sort of protections or structure the parties need, the marriage as a whole would need to be made into its own legal entity. At formation, the first-generation members of the marriage would draft up articles of incorporation specifying the rules by which new spouses are opted in — by majority vote? Unanimous consent? — and what limitations there are on potential entrants — is there a limit on how many spouses can join in any five year period? Restrictions on the permissible gender ratios? As for dissolution of members — i.e., divorce — the specific arrangements would likely be complex, but in general, you would need to have provisions ahead of time which specify whether property of the spouses would become communal property owned by the marriage entity, or if members would have independent finances, or if it is to be a blend of both.
Because the incorporated marriage entity could itself possess or inherit property, enter into (non-marriage) contracts, accumulate debt, or do most anything else that a juridical person can do, a group marriage would permit a marriage of three or more people to operate in a manner more or less analogous to how a married couple would operate, only with the decision-making power carried out through a corporatesque structure. Although obviously in the real world there would be many more complexities to address, in general, corporate law provides a pretty good road map for how group-style polygamous marriages would operate.
(2) Multi-marriage contracts: Multi-marriage contracts would be almost identical to the marriage contract currently available in the US. The primary difference — albeit a rather important one — is that they would lack the exclusivity clause that is implied into every marriage contract today. In other words, in multi-marriage contracts, a marriage only contains two parties, but parties would be permitted to enter into one or more of such contracts.
This sort of marriage is potentially far more complex than is group-style marriage. In a group style marriage, all parties have a relationship with all other parties, so there is a unity of interest that is not present in the case of a spouse with two distinct marital contracts. The ability of a spouse to suffer injury by their spouse’s diversion of resources is also greater, and harder to detect.
In order to make such marriages administrable, a “first in time rule” would likely need to be implemented — i.e., the terms of the very first marriage contract a party enters into controls the terms and conditions under which any additional marriage contracts could be entered into. Therefore, if you enter into an exclusive marriage contract, you get a “traditional” marriage contract, with all the associated legal obligations and benefits that exist today. But if you enter into non-exclusive marriage contract, then the parties are permitted, under certain conditions, to later enter into additional marriage contracts. Each later marriage contract must comply with the terms of the first, and any marriages that were subsequent to a still-existing prior marriage of either party would have to comply with any and all prior marriage contracts, and so on down the line.
Multi-marriage contracts would, necessarily, contain an authorization clause, specifying the terms and conditions under which a party may enter one or more additional marriages. Although theoretically you could also have unrestricted multi-marriage contracts, where a party is free to marry anyone they want whenever they want, as a policy and legislative matter this sort of “marriage contract” would not be permitted. Under traditional principles of contract law, no contract can exist unless there has been an exchange of consideration. A marriage contract that does not place any limitations on a party’s ability to contract with others or to distribute personal property in whatever manner the individual might wish is merely an illusory contract, and not a marriage at all.
The authorization clause of a marriage would be decided by the parties involved prior to entering the union — and in many respects, it would be similar to a prenup. Hypothetical restrictions could include language such as “This marriage shall be the only marriage into which a spouse will enter, unless prior written authorization is given by the other spouse,” “A spouse cannot enter into any additional marriage contracts that would grant property rights to any subsequent spouse over any of this union’s marital property,” or “Neither spouse may ever marry more than one additional spouse.” Restrictions could also be placed on whether or not additional spouses are permitted to live in the same household (or if there is a requirement that they do so), and there could also be stipulations about which spouse has priority in regards to inheritance or power of attorney.
For public policy reasons, I’d also elect to include a requirement that all marriage contracts are symmetrical in their permissions, i.e., situations in which one partner is permitted to take on additional spouses while the other is not would be prohibited. Any restrictions (or lack there of) on the ability of a partner to take another spouse would have to apply equally to both parties. I would probably also make the “veto power” mandatory rather than optional — i.e., a current spouse always has the power to veto any new marriage their spouse might wish to enter into.
(3) Hybrid marriage contracts: Hybrid marriage would involve marriages between or among members of group marriages and members of multi-marriage contracts. Although not specifically its own type of marriage contract, hybrid marriage is a situation that both group marriages and parties to multi-marriage contracts would have to contemplate and make provisions for in their contracts. For instance, is an individual member of a group marriage permitted to enter into a multi-marriage contract with an individual outside of the group? Or can one spouse in a two-party multi-marriage later marry into a group marriage? Could both spouses in a multi-marriage contract marry into the same group marriage? For that matter, could a two-party multi-marriage be converted later into a group marriage?
If nothing else, it is clear that, should polygamous marriage ever be legalized, family law professors have an endless variety of convoluted hypotheticals to choose from.
Conclusion: If polygamous marriage were ever authorized, it would have to be accompanied by a serious and detailed legislative effort, codifying what the polygamous marriage contract would look like. (Perhaps those opposed to “judicial activism” can find comfort in this; no judge would ever legalize polygamous marriage on her own, because the legal changes it would require are just too damned complicated to be dictated from the bench.)
-Susan
The View From LL2 
I enjoyed your post. Very thought provoking and logical!
Overly complicated, In truth the simple Way And Constitutional way would be to remove the legal recognition of a Christian Custom, And set all contracts as Civil Contracts, And Base the Tax Status as based on house hold. Marriage discrimination Violates the First Amendment,separation between church and state. If it is a Religious Ceremony THEN IT should not be getting a tax break. Nor Legal recognition.
A shared house hold cad and Should receive a tax Break, But monogamous and heterosexual marriage as set down By Christians with a moral code was nothing more than a Successful Attempt to making of law respecting an establishment of religion. Violating the First Amendment
The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.
It was a way to keep other faiths in line plain and simple. Originally to Christianize Mormons and Muslim of there habits and punish Native people that Allowed Gay marriage.
contract Should be just that A Civil Contract that 2 or party Agree to Sign in front of witnesses.
With conditions and Will and Power of attorney.
But as a Legal Status SHOULD NOT EXIST !!!!
I disagree. If gays are crying in the streets about how they want marriage equality than it should be marriage equality for ALL. There is no reason, outside tradition, that marriage is a union of two. None. Who says or ever said that two was the magic number. You can’t say yes to gay marriage and no to plural marriage on any grounds, but tradition. There is nothing in the Constitution that protects a marriage of two over one of four or six. Gays and gay supporters want to pretend that this is not the case, but it is. If marriage is to be redefined than it should be redefined to include everyone. If this is about fairness and equality then if you legalize gay marriage than polygamy and polyandry should be legal as well.
This is about not being a blind bigot and thinking the commitment of marriage is somehow about what kind of plumbing each partner happens to have.
I appreciate your thoughtful discussion here. I will contact you via your button above on a related topic.
For this post — most of the legal hurdles for adaptation of existing law you talk about or attempt to resolve with your different categories of marriage contract are address with a simple formulation: all parties are married with every other party. Then, the change is in law simply goes from 2 to n, in mathematical terms, and that informs all internal and external issues. The primary reason for this construction, versus the others you describe, to achieve state recognition is joint and several equity and liability under the law of the partners in a marriage. If one creates a new entity — as any two-party marriage would do as well — that’s the most critical public and legal interaction with that entity. It’s also very tricky for the principals, but that’s their business and risk.
It also resolves family law issues like divorce. Break one bond and you break them all. Remaining partners can, of course, reform a new union or “marriage” under the law, but only after dissolution of the prior union, just as currently. I don’t think permission of the remaining partners is sufficient; a party entering into a new union with joint and several liability while in another union with join and several liability creates massive uncertainty. The actual living arrangement is irrelevant. For this situation, current partnership law informs the discussion quite well.
Further, the question of parentage — particularly today — is no longer an issue even if the polygamous party is also polyamorous, although the sexual habits of the parties to a marriage is irrelevant to the marriage contract except among the parties. The state has no interest in that beyond what a party brings to the state in, say, a divorce proceeding claiming breach. Note that a married person can become the parent of a child with someone other than their spouse, and create just as much of a mess.
But beyond that, with modern DNA testing actual biological parentage is not difficult to determine if it become a factual question. In a multi-party divorce, custody, visitation and child support, while clearly more complex, is hardly insolvable. Most of these types of divorces will produce fairly clear-cut arrangements for all of these issues, with the occasionally very messy situation. That’s not dissimilar to many two-party marriages, however. As in those cases, the welfare of the child is the primary consideration for custody. On the flip side, a polygamous marriage has many more ready familiar (and familial) potential guardians for a child in the case of a parent’s death, incapacitation, or just screwing up.
Nevertheless, the obvious internal complexities will lead few people to form these unions officially, and those who do will probably do so for the internal advantages.
Regarding external issues, the mathematical complications are not that difficult to address. Spousal health benefits, for example, can simply be rated as three or more adults and employers will agree to pay for two adults, if they want that policy, or have an equal contribution for spouses and children of any marriage. The insurance companies will adapt quickly if they can sell policies and collect premiums. They have already done so for “domestic partners” in many locales. Survivor benefits that do not already allow for multiple beneficiaries, such as Social Security, and develop new rules for splitting those benefits among spouses if the deceased failed to designate it in a will. One would suppose each spouse would receive an equal share, but that would still be in lieu of their personal Social Security benefit. Further, if the remaining spouses reformed a marriage of any type, they lose the option of the survivor benefit (reduced by shares) as they do now with two-parties unions.
The larger points is that the parties in such a union will probably work it out amongst themselves without any required prenup or otherwise. For external issues, the law will adapt and the issues are no more complex than what the law already deals with in other areas. The typical construction lawsuit is far more complicated than any polygamous divorce or probate would present to the courts.
For me, I’m going to keep my one wife.
The problem with the “all parties are married to every other party, a divorce happens if any single party leaves” approach is that (1) polygamous relationships are so diverse in form and structure that I suspect for a significant majority, such a marriage arrangement would not be an acceptable option — so as a practical matter, it hasn’t done much to legalize polygamous marriage at all; and (2) the simplified approach doesn’t address the problem of priorities and decision-making within the marriage.
For instance, in a marriage of three individuals, who has power of attorney or decision over medical care for each spouse? If there’s a disagreement among two spouses about the treatment of a third spouse, will the court have to get involved every time?
Further, the question of parentage — particularly today — is no longer an issue even if the polygamous party is also polyamorous
Have to respectfully disagree there. It absolutely is a huge issue — same-sex marriages in many states have faces, and continue to face, a huge hurdle in obtaining parental rights for both spouses over their offspring.
The question of parenthood isn’t one of biological fact. Polyamorous relationships are not all going to approach parenthood of their individual members the same way. And, right now, our laws are unable to recognize any parental arrangement that might arise in a multi-party marriage, other than, theoretically, to declare an arbitrary two individuals to be the recognized parents.
Considering the substantial difficulties that arise from the dissolution of even a marriage of only two individuals…. well, I am not optimistic that adding more people into the contract will cause things to go more smoothly. When a marriage or a business is going fine and everyone is getting along, the by-laws and the prenups and the statutory frameworks aren’t really at issue. It’s when everything goes pear-shaped that the law is required to step in and divvy up assets, or to make decisions when the involved parties are deadlocked.
And those laws don’t exist right now. They’ll need to be written from the ground up before group marriages can ever exist.
While people may form all sorts of marriage-like arrangements, and they do already with prenups and divorce settlements, its the parties that work them out. The primary barrier issue of state-recognition of a plural marriage contract is the very public explicit unlimited partnership with joint equity and, especially, liability. Simply put, one spouse can commit the couple or group and they are all liable. In effect, the union entity is liable, and that’s what the state is recognizing. What goes on within the partnership with regard to decision-making is simply up to the parties, whether its a two-person union or more. Also, the same rule applies whether the parties form a state-recognized union or not.
I have to advise that the which-spouse-decides-if-a-spouse-is-unable on medical decisions is a total canard. Each individual in a marriage can always appoint a power of attorney outside the marriage for medical decisions either by choice or necessity. My own mother has that since my father is now 91 and she’s only 82, but she still makes medical decisions for him. The case of disagreeing spouses for someone without a designated power of attorney is really no different than if a treating physician did not KNOW of an external power of attorney, even with a living spouse, or decision are made with apparent power of attorney that doesn’t exist in fact, or if there is NO spouse with clear power of attorney.
So in your case of disagreeing spouses (or two disagreeing children for someone with no spouse), physicians will do what they determine is in the best interest of the patient, and if there’s time for a court to intervene they will. But on the flip side, suppose you have two spouse who agree OR know of the true power of attorney, that’s twice as many spouses to resolve the true will of the uncapacitated spouse. The math is funny like that. For every scenario you can present to make it more complex, I can present one where having more spouses is an advantage.
Considering the substantial difficulties that arise from the dissolution of even a marriage of only two individuals…. well, I am not optimistic that adding more people into the contract will cause things to go more smoothly. When a marriage or a business is going fine and everyone is getting along, the by-laws and the prenups and the statutory frameworks aren’t really at issue. It’s when everything goes pear-shaped that the law is required to step in and divvy up assets, or to make decisions when the involved parties are deadlocked.
I have no doubt that adding more people into a disagreement can and often does makes things more complex. On the other hand, three spouses can break a stymying deadlock when a two-party marriage can’t. So the parties either work it out or they don’t. For two-party marriages of divorced people, they face pretty much the same issues, don’t they?
This analysis applies just the same for child support and other family law issues. Determining parentage is a critical element and married people can become parents of children with people other than their partners. Since there’s complete joinder in a plural marriage I described, the third and other spouses essentially consent to the equivalent of adoption of any children born from parties within the union. If the union dissolves, custody, visitation and other issues are either resolved by the parties or, if they can’t, the courts based on the best interests and preferences, if knowable, of the child. just as it is now. it might be messier, but it might be cleaner, too.
So the parties will either it work it out before hand, or during, or in divorce court — just like a regular partnership or marriage. In fact, most will recognize the complexities in advance and either a) decide not to do so, or b) make a plan that works for them and hope that it holds. People in any marriage or partnership can change their minds. People entering a two-party marriage can do so hastily and create all sorts of problems. But the state doesn’t care about that. Hence, the winning argument, both logically and legally, is simple: all marriages are equally messy or equally clean under the law. It’s up to the parties, just like any other contract.
We don’t need statutory rules for everything. We don’t have them for regular marriages or other partnerships. The parties make their own rules. The critical issues for the state are freely-given consent, execution, and complete joinder.
I don’t know if I’ve addressed every issue or not, but I can with a sturdy argument. If an issue is just as relevant in some form to a two-party marriage as a plural marriage, they must have equal protection under the law. Two-party marriages are complex. Multi-party marriages are complex as well. But every mathematical argument on complexity has a flip side of advantage. Complete joinder is the key distinction for a very good mathematical reason:
X and Y
X and Z
Y and Z
equals
X and Y and Z
That’s NOT true in any other construction.
I would have to say that it could be complicated to some, but to an open mind. I also look at it like this, what happens if your wife is working 40+ hrs and they are different shifts, and the husband is doing the same, and you have kids and no time to take the kids to the sitters or day care, what are you supposed to do? If we are allowed to have more then one spouse and all parties are agreeable to it then while one or two are working then the other or others can be there to take care of the children, and then when it is time for the two to come home, and the others to go to work, then fine, great. Also with the cost of living, it is coming to the point of having to work at least three or four full time jobs. I know my Aunt works three or more full time jobs as it stands now, and her health is really crappy I am sure, she looks bad. I feel that if we were to legalize polygamy like we did gay marriage then it would make things a hell of a lot easier for everyone. For those who do not agree with it, my message to you is this: It is your right to disagree with it, and not to support it, but it is also the right of those who want to be allowed to have multiple wives to be able to do such. So why impose your views upon others who may or may not share your ideas. It is like religion, we are supposed to be allowed to believe in what we wish, but also to be free to not have someones views pushed on us as well.
Think about that for a while.
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