The many differences between polygamy and same-sex marriage

Does advocating for marriage equality for same-sex couples require us to also advocate for polygamy — that is, for legally recognized marriages of three or more people? I don’t think so; there are crucial differences between same-sex marriage and polygamy that require us to consider the issues separately.

In David’s slippery-slope thread, AnnaJCook wrote:

I am actually uncomfortable with the way pro-gay-marriage folks distance themselves from legal recognition of poly marriages. I’ve known a couple of folks whose poly relationships could have benefitted from equal legal recognition. There’s nothing in our current conception of marriage (love, commitment, mutual finances, etc.) that require only two consenting adults.

Three of my best friends are polyamorousy married to each other, but their marriage has no legal recognition. Their marriage is egalitarian, stable, and full of love. Isn’t it unfair that they can’t have a legally recognized, three-person marriage?

Well, yes. It is unfair.

But not everything in life that’s unfair should be addressed by changing the law. It’s unfair that an expert driver who can safely drive at 100mph on city streets cannot do so legally, but it’s still in society’s best interests to have speed limits.

I think that even though it’s unfair that my friends can’t legally marry, there are very strong arguments against legal recognition of polygamy.

1) Contrary to what Anna suggests, there’s actually quite a lot in our current legal conception of marriage that requires two and only two consenting adults; polygamy can’t fit into our current legal regime seamlessly, as SSM can. To accommodate polygamy, the laws around marriage would have to be rewritten at every level. David Link outlines some of those reasons here.

The difference comes down to arithmetic. Same-sex marriages have the same dyadic structure that all heterosexual marriages now have. Each partner is married to the other, and only to the other. Their rights and obligations to one another, to any children they may have, and to any third parties who might have some interest in the relationship, such as banks, creditors, parties to contracts, etc., are usually quite clear.

That’s not true with polygamy.

In the dominant form of polygamy, where one man is married to several wives, he is, in some way, “married” to each one of the wives individually. [...] But what about the relationships of the wives to one another? Are they similarly “married” to all the other wives in the marriage? [...]

If the answer is “yes,” then if the husband died, would the wives continue to be married to each other? Why or why not?[...]

Could some or all of the wives divorce the husband, but continue to be married to one another? Could they divorce one another? Again, why or why not? And if the answer is “yes,” how would that work? Who files what papers, naming whom? Would the various partners choose up sides in the ensuing divorce proceedings, and how would a court deal with that?

Another question related to divorce: Could an individual wife file for divorce of only herself, or would a divorce petition dissolve the entire marriage? [...]

And – central to the present debate — what about the children? If the husband – or one of the wives – wanted out of a polygamous marriage, what would the rules be for who gets custody of the children – and who is responsible for child support? [...]

The fact that we do not know the answers to these questions – and thousands of others – is at the core of why polygamy is dramatically different, as a matter of public policy, from same-sex marriage.

Maybe those problems could be addressed. But it would not be fair to put SSM on hold while we wait for that to happen.

2) As I’ve written before, in actual practice changing marriage requires a large-scale social movement; a critical mass of people must be persuaded to advocate for the change, then an even larger mass of people must agree to support or at least not object to the change. This is an enormous amount of work, and that’s work that SSM supporters have done and are doing, but poly supporters have not yet begun (and I’m not sure they’re even interested in doing it). Again, I don’t think it’s fair to put SSM on hold to wait for polygamy.

3) Legal recognition of SSM doesn’t change existing heterosexual marriages. But legal recognition of polygamy would change and potentially destabilize existing two-person marriages, by introducing the possibility of them becoming poly marriages. Many married people enjoy the security provided by an institution which is permanent and exclusive; is it fair to them to change the institution so that it’s no longer exclusive? What happens when Bob is pressuring his wife Marie (who got married when polygamy wasn’t legal) to marry Julie with him? What if Bob simply marries Julie – where does that leave Marie?

4) In the current USA, if we have polygamy, many poly marriages would not be egalitarian trios like my polyamorous friends, but patriarchal arrangements in which wealthy men marry many wives, leading to a class of unmarriageable young men who may be shunned from their communities. This is already going on today, on a small scale, with tragic consequences both for hundreds of ostracized boys, and for girls who are effectively forced into what may be terrible, misogynistic and abusive marriages.

Right now, in the USA, this is a problem only in a few isolated, non-mainstream communities. If polygamy is legalized, what assurance is there that this practice won’t radically expand? If it does expand, how would we mitigate the significant harms to society?

* * *

Opponents of same-sex marriage have not been able to make any credible arguments showing that same-sex marriage would be harmful. Opponents of polygamy will not face any such problem.

These are all points that make polygamy substantially different from same-sex marriage.

It may be that all these problems can be addressed; and that polygamy can be made practical, just, and harmless to larger society. It may also be that there will someday be a large-scale movement fighting for legally recognized polygamy, addressing all the problems associated with polygamy, and persuading a large mass of Americans to support polygamy.

But that has not yet happened. Until it does happen, there will not be legally recognized polygamy in the USA.

In the meantime, merging polygamy and same-sex marriage into a single issue is unfair to same-sex couples.

It’s unfair for supporters of polygamy to attempt to merge the two issues, because it’s not fair to expect lgbt couples to have to have their issues put on hold while the polygamy issue is sorted out.

And it’s unfair for opponents of same-sex marriage to merge the two issues, because there is no compelling reason to believe that SSM will lead to polygamy. Furthermore, punishing lgbt people for the sin of polygamy, even though most polygamists are heterosexuals, is unreasonable and unjust. That sort of policy makes sense only if we consider lgbt people to be lesser humans, deserving of less respect and justice.

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15 Responses to The many differences between polygamy and same-sex marriage

  1. 1
    mythago says:

    Polygamy, historically, was polygyny. You can’t legally have such a thing in the US today; you would have to also permit polyandry, and then the mathematics gets even worse.

  2. 2
    squirrel says:

    The proposal I have seen most often in poly communities to resolve some of these issues is to allow the various rights and responsibilities in marriage to be contracted for outside of the all-or-nothing marriage context, and independently of each other. This benefits not just poly couples, but also enables legal relationship recognition in situations that don’t look much like marriage at all.

    There’s a lot of recognition in poly circles, from what I’ve seen, that a framework for relationship recognition that is suitable for polygamy is a much bigger change than anything going on with SSM, like you say. I think if we ever do get a movement towards that, it might not use the word marriage much at all, although on the other hand that cuts out a lot of the emotional resonance that can help win over a lot of people, so I don’t know.

    The closest existing group I know of is the alternatives to marriage project (http://www.unmarried.org).

  3. 3
    Robert says:

    I agree that, pragmatically, the issues with polygamy would be much more difficult and would require many more changes than SSM.

    And recognizing that, could we get SSM proponents to stop framing the issue as “people should be able to marry who they want”?

  4. 4
    Ampersand says:

    No, unfortunately, we can’t. Nor can we get SSM opponents to stop framing the issue as “my church says it’s wrong.”

    There is no power on earth that will prevent lots of people on all sides of every issue from framing arguments in the least sophisticated way.

    Well, except for the device I’m building in my garage, which will take the power of speech away from everyone on earth. It’s all part of my master plan. But it’s a secret, so I can’t tell you ants anything more about it yet.

  5. 5
    Robert says:

    Well, the SSM opponents saying “my church says its wrong” aren’t telling a fib, though. (Unless they’re Unitarians or something.)

    I’m building a mind-control laser in MY garage. That +4/-4 to any action is just unstoppable.

  6. 6
    james says:

    I agree that, pragmatically, the issues with polygamy would be much more difficult and would require many more changes than SSM.

    I don’t think so. You have to realize the US is the exception here, because of anti-Mormon sentiment. It is one of the most anti-polygamy countries in the world, as has not recognized these marriages and persecuted polygamists – for no other reason that as a matter of policy.

    In most other countries, things are actually the other way around. So they’ve historically recognized polygamous marriages, but not SSM. The UK is a good example. It doesn’t have SSM, but recognizes polygamous marriages contracted abroad. So if you’re domiciled in England you can’t get a polygamous marriage under English law; but you’re domiciled in India you can get a polygamous marriage under Indian law and if you come to England the courts will recognize that marriage. In contrast the US won’t recognize the marriage, will consider it a crime, and ban immigration.

    Obviously, the origins of policy in the UK and much of the rest of the world, is simply a pragmatic response to Empire – rather than a philosophically pro-poly stance. But far more countries with a traditional western conception of marriage recognize polygamy than do SSM, so there can’t be any fundamental legal obstacle.

  7. 7
    mythago says:

    Actually, yes, there is. That’s because you’re describing polygyny.

  8. 8
    Stentor says:

    I don’t think it’s fair to put SSM on hold to wait for polygamy.

    Who is saying this? I spend a ton of time around a wide variety of poly people, in meatspace and online, and I have literally never encountered even the slightest suggestion of the argument you’re trying to rebut here. I’ve seen poly people who support legal recognition for monogamous SSM asap, and poly people who think legal marriage is bullshit and should be eliminated entirely, but I’ve never encountered a poly person who thinks we shouldn’t allow monogamous SSM until we can allow polygamy too. (And presumably FLDS-type polygamy advocates think we shouldn’t have SSM at all regardless of whether we recognize polygamy.) Poly people are, by and large, well aware of the practical matters that would need to be sorted out, as well as the need to build social support before any serious move for legal recognition of polygamy.

    I think the point about polygamy changing existing monogamous marriages actually does somewhat parallel how SSM changes heterosexual marriages. Recognition of polygamy would make polygamy a live option and thus take some power away from someone who wants to insist on monogamy. Likewise, SSM makes the option of egalitarian marriage impossible to ignore, thus taking some power away from someone who wants to insist on a highly gender-role-differentiated marriage. (Note that we’re already partway there: while polygamy is not legally recognized, it’s not a crime to have other partners in addition to your legal spouse. So there’s already the risk of one spouse trying to pressure the other into having an open marriage.)

  9. 9
    Copyleft says:

    On another note, that T-shirt is hilarious.

  10. 10
    David Schraub says:

    You might find interesting Adrienne Davis’ stellar article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010). In sum, she points out that American law already has experience at “ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes.” To wit: partnership law (partnership as in a law firm or business, not domestic partnerships). Davis isn’t saying we can just import partnership law wholesale onto polygamy, but simply points that this not conceptually a problem American law is entirely in the dark about.

  11. 11
    mythago says:

    @Stentor: “who is saying it” are SSM opponents. I don’t think any actual advocates of polygamy (rather than patriarchal polygyny) are saying we should hold off on SSM.

    @David Schraub: Thanks for the link. I don’t want to comment on it before reading it, but from looking at the abstract, I’d agree with her that it’s true that such things are not impossible, but disagree that we can simply graft partnership law onto family law; they’re different animals. What is true is that we can’t simply plug a polygamous union into the existing dyad as we do with SSM – and it’s also true that polygamous unions don’t raise the same Constitutional issues. “Number of partners” is not a suspect category, and “religion” is a failed argument.

  12. 12
    Dirty Davey says:

    I think the term “polygamy” here is conflating two things and any question of “legalization” has to figure out what it’s talking about. Right now marriage, whether opposite-sex or same-sex, excludes “polygamous” relationships because it is (a) a relationship between exactly two people such that (b) each person may be in only one such relationship at a time.

    Historical polygamy, of the rich-man-with-many-wives variety, relaxes only stricture (b). This clarifies answers to many of the questions in section (1): wives are not married to one another, the man may marry additional wives or divorce existing wives without affecting his relationship to the other wives, and so forth. The logical problem with relaxing restriction (b) becomes transitivity–if A is married to B, and B is married to C, what is the legal relationship between A and C? The historical model avoids this problem with two additional restrictions: only allowing opposite-sex marriage, and maintaining restriction (b) for women.

    It sounds as if what your polyamorous friends want to do is to relax the two-person restriction (a) while maintaining the one-at-a-time restriction (b). This is a very different problem. It still leaves questions to be answered, particularly around questions of expanding or contracting the number of people involved. “Marriage” is a generally thought of as a reciprocal relationship, and allowing an n-person legal marriage would need to somehow specify how n-way reciprocity works when n is greater than 2.

    One obvious example: by default, the spouse is the next-of-kin and can have medical decision-making responsibilities during an emergency hospitalization. In this case, what principle governs decision-making when multiple uninjured spouses disagree?

    Also, in a two-person marriage majority-rule and consensus decision-making models are identical. With three or more people owning a house or legally parenting a child, what is the decision-making rule for being able to take collective action in the name of the group? (Who can sell the house?)

    I feel that it’s reasonable to say that advocates of “polygamy” should be clear about what they really want and expect. Once it’s clear whether they want to abolish the two-person restriction, the one-marriage-at-a-time restriction, or both, a serious request for change needs to propose a way to handle the questions of n-way reciprocity and/or transitivity.

  13. 13
    MKlein says:

    I definitely don’t think “SSM should wait for legal polygamy.” I’ve honestly never heard anyone, pro- or anti-SSM, say that. Certainly legalized polygamy would be complicated, but I guess I don’t see that as a reason not to have it. I also don’t see why it’s the government’s job to make sure that all unmarried young men get their proper share of wife, which i guess they’re somehow entitled to, or to make sure that polygyny and polyandry are equally represented. I realize that historically, polygyny comes with lots of thorny misogyny issues, but those issues are not integral to it as a concept.

    The main thing that struck me, as i read this post and the article linked to it, was how commodified women were within the argument being made. There’s an unspoken assumption that women are going to get married to someone, and they have no control over who, or don’t marry out of love as opposed to materialism. Sure, one guy might have two wives while another has none – but the second wife could just as easily have married the unmarried guy as she could the polygamist. She chose not to. So that’s far from an automatic loss of marriage opportunity – it sounds like the unmarried guy never had a marriage opportunity to begin with. On the subject of gender/feminism, it was fun to see the old “all men want to have sex with as many women as possible because, you know, MEN” trope brought back out. There are plenty of monogamous men and polyamorous women, but they don’t count for some reason, i guess. I also wonder about GAY polygamy. Where would that leave these arguments?

    By the way, the article linked in the post was from a fiscally/socially conservative site, where i saw at least one factually inaccurate statement about Obama’s spending record. So, yeah. They were never going to be on board with this, and they don’t exactly inspire journalistic confidence.

    All in all, I actually feel way more pro-polygamy now than I did before I read this post. So in my case, sort of an epic fail.

    And by the way, plenty of married couples are living nonmonogamously. So the whole “polyamory/polygamy is associated with a society’s levels of savagery” thing, aside from being extremely offensive (and no, i’m not polyamorous, but i support other people’s civil rights), doesn’t seem that true.

    And guess what? Barring children and animals, for reasons of consent, people SHOULD be able to marry whoever they want. The only arguments otherwise that i’ve seen are basically either “it’s too complicated” or “ew, i find that icky,” and neither of those are valid when it comes to others’ rights.

    This blog seems generally awesome; i’m disappointed.

  14. 14
    Craig says:

    Many of the issues of law raised here are very similar to current business law which covers creation and disolution of corporations and, more specifically, partnerships. The laws already exist and simply need to be modified to cover personal relationships.

    If you are against polygamy or polyandry, or same sex marriage, or marriage at all, do not get involved in these relationships. These relationships exist; deal with it.

  15. 15
    Kay Roberts says:

    The fundamental difference is that, unlike existing marriage law, polygamy is not a right currently guaranteed to only a certain type of citizen. The argument should be equal treatment under the law. Because polygamy is not currently allowed for anyone, it shouldn’t be part if the discussion.