part0022

The youngs are women in a committed relationship who love and care for and look after each other. They share domestic duties and financial responsibilities. They share a bed and make love. They have a child (courtesy of sperm donation and in vitro fertilization) and intend to have two more. They were united in a ceremony in which they wore beautiful white wedding gowns and were walked down the aisle by their fathers. They are just like any ordinary Massachusetts opposite- or same-sex married couple.

Only they’re not a couple. Doll, Kitten, and Brynn Young are a “throuple.” And Massachusetts, like other states, does not recognize as marriages “polyamorous” unions—romantic partnerships of three or more persons—for now, at least.

But Doll, Kitten, and Brynn think that’s unfair and should change. They want marriage equality for themselves and other polyamorists. They are proud that their home state was in the vanguard of legally recognizing same-sex partnerships as marriages, thanks to the bold intervention of the liberal-dominated Massachusetts Supreme Judicial Court. But they insist that the same principles that generated what they and most liberals (and, it seems, more than a few conservatives) believe to be “marriage equality” for gays should produce the same result for other sexual minorities, especially polyamorous people like themselves.

If gender doesn’t matter for marriage, they ask, why should number matter? “If love makes a family,” as the slogan went when the cause being advanced was gay marriage, then why should their family be treated as second class? Why should their marriage be denied legal recognition and the dignity and social standing that come with it? Doll, Kitten, and Brynn love one another and are as committed to one another and their child and future children as, say, Donald Trump and his third wife, or Elton John and his husband. They find fulfillment in their long-term sexual partnership, just as opposite- and same-sex couples find fulfillment in theirs. The dignity of their relationship, not to mention their own personal dignity, is assaulted, they believe, when their marriage is treated as inferior and unworthy of legal recognition. Their child and future children are stigmatized by laws that refuse to treat their parents as married. And to what end? How does it harm the marriage of John and Harold, the couple next door, if the Commonwealth of Massachusetts recognizes the Youngs’ marriage? Indeed, what justification can be given—what legitimate state interest can be cited—for dishonoring Doll, Kitten, and Brynn and their marriage? Surely, the only explanation, apart from religious scruples of the sort that the state may not constitutionally impose, is animus and a bare desire to harm people who are different?

In recent years, a number of mainstream websites, newspapers, and magazines—Salon, Slate, USA Today, Newsweek, The Atlantic —have run sympathetic stories about polyamory. Polygamous and polyamorous relationships, often with children in the picture, are depicted as just one more historically misunderstood and often victimized way of being a family. The polyamorous partners profiled in the stories sometimes weave discussion of the ordinary challenges and simple joys of domestic life—dealing with disagreements, getting the kids to do their homework or practice the piano, celebrating birthdays and other special occasions—together with behind-the-scenes accounts of what it’s like for a throuples or larger polyamorous units to share a bed and have sex.

In July 2015—just weeks after the U.S. Supreme Court’s decision in Obergefell v. Hodges recognized a right to same-sex marriage—the New York Times published an essay by University of Chicago law professor William Baude urging readers to keep their minds open toward polygamy and other multiple-partner sexual relationships. He noted that they could have some advantages over monogamous partnerships—for example, more parents available to look after the kids and share other domestic duties—and he easily identified the weaknesses in antipolygamy arguments made by writers like Richard Posner who support redefining marriage to include same-sex partnerships but want to draw the line there. “We should remember,” Baude observed, “that today’s showstopping objections sometimes come to seem trivial decades later. Very few people supported a constitutional right to same-sex marriage when writers like Andrew Sullivan and [Jonathan] Rauch were advocating it only two decades ago. (Judge Posner, for example, did not.) As we witness more experiments with non-nuclear families, our views about plural marriage might change as well.”

Many polyamorous people say that their desire or felt need for multiple partners is central to their identity, and that they have known from an early age that they could never find personal and sexual fulfillment in a purely monogamous relationship. The message is that they are the next sexual minority whose human rights, including of course the right to marriage equality, must be honored. They’re following the same playbook as same-sex marriage advocates in mainstreaming polyamory and putting in place the cultural predicates for its legal recognition.

And it’s working. A July 2015 YouGov survey shows that fully a quarter of Americans are now prepared to recognize polyamorous marriages, and among religiously unaffiliated citizens (whose numbers are climbing in the United States) the figure is 58 percent. These percentages represent far higher support than gay marriage had within the memory of more than a few readers of this book.

For example, Arizona State University professor Elizabeth Brake, a prominent advocate in the world of academic philosophy for broadening the historic understanding of marriage, has for many years promoted what she calls “minimal marriage,” in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.” 1

Longtime New York University professor Judith Stacey has challenged traditional marriage for years as well. Testifying before Congress against the Defense of Marriage Act, she expressed hope that redefining marriage would give it “varied, creative, and adaptive contours,” leading some to “question the dyadic limitations of Western marriage and seek … small-group marriages.” 2 In a 2013 debate with Ryan T. Anderson—who, along with Sherif Girgis, was my coauthor on the book What Is Marriage? —Stacey said, “What should limit [marriage] to two, and why should it be monogamous? Nothing, in my view, gives the state that particular interest.” 3

As far back as 2006, in a statement then titled “Beyond Gay Marriage,” more than three hundred “LGBT and allied” scholars and advocates called for legally recognizing sexual relationships involving more than two partners. 4 Among the signatories were such influential figures on the left as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino.

These and other open advocates of legally recognizing polyamory now look like they were ahead of their time. With USA Today, Newsweek , and other respected publications sympathetically presenting polyamory, more and more polyamorists and allies of their cause will feel safer coming out. Although polyamory remains unconventional, it is far from unheard of: Newsweek reported in 2009 that there were more than five hundred thousand polyamorous households in the United States alone. 5 Outside the United States, polyamorists have already made gains. In Brazil, two different throuples had been joined in civil unions as of late 2015. 6 In early 2016, Britain’s House of Commons issued a briefing paper on polygamy. Although the United Kingdom legally recognizes only monogamous marriages, the report noted an exception: polygamy may be recognized as valid “in circumstances where the marriage ceremony has been performed in a country whose laws permit polygamy and the parties to the marriage were domiciled there at the time.” As a result, the British government may actually pay social security and other benefits to multiple spouses in polygamous arrangements. 7

Politicians aren’t there yet, at least not in the United States, but in this late season of our experience we all know that they are almost always among the last to arrive at the party. Soon enough, a small number will break the ice, just as they did on same-sex marriage. They will, to use President Barack Obama’s famous description of his own flip-flop on same-sex marriage, “evolve.”

The late and extraordinarily influential legal philosopher and constitutional theorist Ronald Dworkin, a champion of aggressive judicial action to advance liberal causes, taught that law is fundamentally about a society’s making commitments to certain moral principles and working out their implications over time. Fundamental to that enterprise is treating like cases alike. The heart of the case for same-sex marriage was that gender differences are irrelevant to what marriage actually is—namely, a form of committed sexual-romantic companionship or domestic partnership. The challenge for same-sex marriage supporters is either to accept polyamory on the basis of the same vision of marriage or to offer a new and more specific vision—one that can explain why number is relevant but gender is not.

Even as an increasing number of “marriage equality” supporters agree that the time for recognition of polyamorous marriages has come, some still try to avoid the question. Only a few have been willing to hold the line—to say gender doesn’t matter, but number does: marriage is, as a matter of principle, a two-person partnership, so unions of three or more persons ought to be denied the dignity of legal recognition .

The trouble for those in this last category is that they can’t come up with anything approaching a plausible argument. Either they try to make something out of the alleged “fact” that homosexuality is a “sexual orientation” but polyamory is not, or they point to practical difficulties in administering principles of family law for partnerships involving more than two. Occasionally, you will hear an advocate of gay marriage who opposes polyamory say, A person cannot fully give himself or herself to two people as he or she can to one person . And even more rarely someone will suggest that polyamorous unions are not psychologically or morally appropriate for bringing up children.

From the perspective of polyamorous people and their allies, all these arguments are weak to the point of being contemptible—thin rationalizations for excluding them from a recognition and status that others in similar relationships are given. For poly people, being poly is as central to their identity—and being in polyamorous relationships is as vital to their fulfillment—as being gay and being in a same-sex partnership is for persons who are sexually or romantically attracted to persons of the same sex. Polyamorists object to being the sexual minority forced to settle for a relationship that fails to fulfill them or respond to who they are, or denied the social support and legal recognition that others’ relationships receive.

As for practical problems, they note that modern law in a wide variety of areas deals with complexities far greater than those that legal recognition of Doll, Kitten, and Brynn Young’s marriage would pose. Administrative burdens are, they observe, no basis at all for denying them the basic civil right to marry. And they find it insulting when nonpoly people claim that being polyamorous is not central to their identity and fulfillment, or assume that people like Doll, Kitten, and Brynn cannot give themselves as fully to one another as gay or straight monogamous people do. Based on their personal experience and what they know from the experience of other poly people, they also reject the view that being in a multiple-partner union increases the likelihood of marital problems arising from jealousy. To them, this is stereotyping, sheer prejudice, dressed up in scientific garb.

Finally, they are not buying the idea that polyamory would unavoidably or even frequently lead to women’s subordination. In any event, why should their rights to be who they are, and to have their relationship honored and their children protected, be held hostage to a fear that other people will conduct their marriages in morally bad or psychologically unhealthy ways? If forms of patriarchy that were common in the past provide reasons to limit marriage, they equally provide reasons to abolish marriage altogether.

Of course, the case for polyamory and its legal recognition presupposes that marriage is in fact what “marriage equality” advocates have depicted it as being: committed sexual-romantic companionship or domestic partnership. And this is precisely what has been denied by defenders of what used to be known as “marriage” and is now called “traditional marriage” (that is, the union of husband and wife). Those defenders are most assuredly right when they say that the new idea of marriage is an innovation—not an “expansion” of marriage but a genuine redefinition, one that treats what has historically been regarded as a relevant difference, namely sex or gender, as if it were irrelevant, not central to the very idea and social purposes of marriage.

As noted in previous chapters, marriage has historically been understood in our law and culture as a conjugal union—in which a man and woman consent to unite in a bond that is (1) founded on their sexual-reproductive complementarity, (2) consummated and renewed by acts that unite them as a reproductive unit (“one flesh”) by fulfilling the behavioral conditions of procreation (whether or not the nonbehavioral conditions happen to obtain), and (3) specially apt for, and would naturally be fulfilled by, their having and rearing children together. Participating in marriage as a conjugal union is regarded as inherently humanly fulfilling: valuable not merely as a means to something else—even the great good of having and rearing children—but in itself.

This understanding of marriage is radically different from the revisionist conception that one must adopt if sexual-reproductive complementarity is irrelevant to marriage. According to revisionists, marriage is essentially a union at the affective level . What sets it apart is a certain emotional bond. It unites partners in an especially close or intense form of friendship, one which ordinarily involves sex but just as a way of fostering and expressing affection. Sex is thus, strictly speaking, incidental, not inherent, to the relationship. The same is true, of course, of procreation—it is merely incidental. In the words of John Corvino, a leading philosophical defender of the revisionist view, marriage is “your relationship with your Number One person.”

The conjugal idea of marriage, by contrast, conceives of persons as unities of body and mind, and of marriage as uniting spouses at all levels of their being: the biological as well as the affective and rational-dispositional. Acts of bodily union fulfilling the behavioral conditions of procreation are the distinctive completion and seal of this uniquely comprehensive union. These acts don’t just produce feelings of intimacy; they literally embody the spouses’ marital union by making them a biological (sexual-reproductive) unit.

Sex is thus integral to marriage, which is part of what distinguishes marriage from other forms of companionship. All friendships are unions of hearts and mind; marriage, however, is a union not only at that level but at the bodily—biological—level as well. It is distinguished from ordinary friendships not, as on the revisionist view, merely by its degree of emotional intensity but in kind . It is not accurately understood as “your relationship with your Number One person.”

As a conjugal relationship, rather, marriage is the type of bond that is ordered to procreation and would naturally be fulfilled by spouses having and rearing children together. On the conjugal understanding, marriage is the relationship that unites a man and a woman as husband and wife to be father and mother to any children who may come of their union. Its social role is to maximize the chances that children will grow up in the context of the committed love—the matrimonial bond—of the man and woman whose actualization and renewal of that bond brought them life, linked to their parents and to their parents’ families. It ensures that as many children as possible will be reared with the advantages of both maternal and paternal role models, influences, and care.

The revisionist challenge, especially as a result of the sexual revolution and its mainstreaming of nonmarital sex and cohabitation, out-of-wedlock child bearing, and divorce (especially with the introduction of “no fault” divorce), has eroded the public understanding and support of marriage as conjugal union. The erosion helps to explain why an idea that was quite literally inconceivable as recently as a generation ago—the idea of “same-sex marriage”—has suddenly become not only intelligible but even dominant among cultural elites. For many cultural elites, it is now the traditional conception of marriage that is unintelligible, to be explained only by animus, prejudice, or antiquated religious dogmas. That is why they are not content with merely revising the law to enshrine “same-sex marriage”; anyone who dissents from the new orthodoxy must face antidiscrimination statutes and ordinances and/or public shaming, ridiculing, and hounding.

Of course, if marriage is distinguished mainly by its emotional intensity, then there really is no reason that two men or two women cannot marry. Any two people, after all, can feel romantic affection for each other, commit to providing support and care for each other in a shared domestic life, and believe that their relationship is enhanced by mutually agreeable sex acts with each other. But so can three men. Or three women—say, Doll, Kitten, and Brynn. Or a man and two women (whether the three are united as a polyamorous ensemble, or the man is in separate marriages with each woman). Or a woman and two men. Or four people. Or whatever.

In Obergefell v. Hodges , five justices of the Supreme Court, led by Justice Anthony Kennedy, claimed to find in the due process clause of the Constitution’s Fourteenth Amendment the revisionist understanding of marriage. Now, the actual words of the clause—“No state shall deprive any person within its jurisdiction of life, liberty, or property without due process of law”—seem to be all about justice in criminal cases or in analogous civil or administrative actions. States may not execute someone (depriving him of life), imprison someone (depriving him of liberty), or subject someone to a monetary fine or forfeiture (depriving him of property) without affording him such basic procedural protections as the presumption of innocence, an impartial judge and jury, and so forth. But the Supreme Court instead followed a long, if intellectually dubious, tradition of reading this clause “substantively” to include unenumerated rights that enough justices believe people should enjoy. Thus Kennedy, joined by Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, announced the discovery of a right to same-sex marriage that would certainly have shocked the Americans of the late 1860s who ratified the Fourteenth Amendment—and even Americans of the 1960s, for all their sexual-revolutionary pretensions.

For Kennedy, the conjugal understanding of marriage had to be jettisoned in favor of the revisionist conception because the dignity of persons who construct their identities around same-sex attraction and find their fulfillment in same-sex partnerships requires it. This dignity is conferred by the state and is, in effect, withheld when the state treats marriage as a conjugal union rather than as sexual-romantic companionship.

Lacking any warrant in the text, logic, structure, or original understanding of the Constitution—or even any clear and disciplined engagement with other court cases, right or wrong—Kennedy’s opinion merits the condemnation that John Hart Ely, the late dean of Stanford Law School (and himself a pro-choice liberal), heaped on Justice Harry Blackmun’s opinion in Roe v. Wade: “It is not constitutional law and gives almost no sense of an obligation to try to be.” The four dissenting justices in Obergefell —John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—had no difficulty skewering, even ridiculing, Kennedy and the majority for failing to identify an even remotely plausible constitutional ground for their decision. Whatever one’s beliefs about the comparative merits of the conjugal and revisionist conceptions of marriage, it is difficult to see how the Constitution can be said to have dictated a choice. In the tradition of Dred Scott v. Sandford, Lochner v. New York , and, to be sure, Roe v. Wade , the Obergefell decision unconstitutionally imposes on the nation the beliefs of a Supreme Court majority—unelected, unrepresentative men and women—about what counts as social progress.

The case forces us to focus on the logical implications of abolishing the conjugal understanding of marriage in our law and replacing it with the revisionist idea of marriage as sexual-romantic companionship or domestic partnership, all by judicial fiat. Here is where Professor Dworkin’s point about the centrality of principle to law has its significance for the cause of polyamory, at least for his fellow liberals who approve of the role the judiciary has assumed in cases such as Roe and Obergefell . He who says A must, where the same principle requires it, say B . And he who says that the judiciary has the power to dictate A must say that the judiciary has the power to dictate B , even if B doesn’t yet share A ’s popularity and even if the people’s representatives in the legislature say no to B . The constitutional case for the judicial imposition of same-sex marriage requires belief that the Constitution—somewhere, somehow (perhaps lurking in “penumbras formed by emanations”)—incorporates the idea of marriage as sexual-romantic companionship. But if it does, then there can be no reason of principle for withholding legal recognition from the marriage or marriages of, say, Yemeni immigrants or fundamentalist Mormons who are in polygamous partnerships, or of polyamorous people like the Youngs. To observe that 75 percent of the public still opposes legal recognition of such marriages is only to highlight the need for the courts to intervene to vindicate the marriage equality rights of those in multiple-party relationships.

By constitutionalizing the issue—by purporting to find a certain vision of marriage in the Constitution—the Supreme Court eliminated the possibility of accommodations and compromises in the political process. By its own lights, the question is no longer properly left to the moral or policy judgments of the people or the vagaries of democratic bargaining. As a matter of constitutional principle, it is an all-or-nothing game—a game that only judges are permitted to play. The American people have been told by the Obergefell majority to watch from the bleachers.

If Obergefell stands—and, for what it’s worth, I hope it will not—the question of legal recognition of polygamous and other polyamorous partnerships cannot be avoided. The arguments of those who want to retain the idea of marriage as mere sexual-romantic companionship or domestic partnership while denying legal recognition of polyamorous marriages will sound weaker and weaker, more and more like mere rationalizations for stigmatizing what many people (for now, at least) still find icky. Under the pressure of the natural human desire for rational consistency, the liberal movement and the Democratic Party will gradually come to embrace the polyamorists’ cause. And liberal jurists, though they may swat away on procedural grounds the first few constitutional challenges to marriage laws excluding polyamorists’ romantic bonds from recognition, will eventually have to say B .

Will there be a C ? Sure. That will likely be the abolition of laws against consensual adult incest (parent-child or sibling) and, correspondingly, the elimination of consanguinity laws forbidding marriage between a parent and his or her adult child and between adult siblings. Western Europe was a bit ahead of the United States on same-sex marriage and is now pointing the way forward for sexual liberals on incest. In September 2014 the German Ethics Council issued a report urging parliament to revoke legal prohibitions against incest involving consenting adults, arguing that these prohibitions violate “fundamental freedoms” and force people “into secrecy or to deny their love.” The council described opposition to consensual adult incest as a mere “social taboo,” and declared: “Neither the fear of negative consequences for the family nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition. The fundamental right of adult siblings to sexual self-determination has more weight in such cases than the abstract protection of the family.”

If one grants the premises of sexual liberalism—that consenting adults have a right to enter into whatever types of sexual relationships they like without state interference—and embraces the revisionist conception of marriage as committed sexual-romantic companionship, then what the German Ethics Council says has to be correct. The council’s logic is impeccable. If there is a flaw, it must be in the premises. And yet the premises are precisely the ones that have been adopted by the liberal movement in our time. So C will come in due course, unless A is abandoned.